MOORHEAD - A Supreme Court ruling last week that allows police to take DNA samples from people arrested for serious offenses as part of the routine booking process won't change the way Moorhead police go about obtaining such samples - at least for now.
Moorhead police say DNA collection currently isn't a problem because most arrestees voluntarily allow it. In cases where they don't, police must get a judge to sign a search warrant that includes an affidavit of probable cause for taking a DNA sample.
The Supreme Court's ruling Monday says a warrant isn't necessary to collect DNA from those arrested for serious offenses, but Moorhead Lt. Brad Penas said police will continue with their current practice for now.
"We're asking our prosecutors how they would like us to proceed in Clay County," he said.
Clay County Attorney Brian Melton said he needs more time to research the ruling before commenting.
"Right now, we're just proceeding the same as we have been," he said.
Minnesota law allows DNA collection from arrestees in felony and certain gross misdemeanor and misdemeanor cases after there's been a judicial determination of probable cause.
The North Dakota Legislature has authorized DNA collection from those arrested for a felony offense since July 31, 2009, except for cases involving juveniles, and Monday's ruling "won't have any operational impact on us," said Fargo Police Deputy Chief Pat Claus.
Court split over issue
In last Monday's 5-4 Supreme Court ruling on an appealed rape conviction, Justice Anthony Kennedy wrote in the majority's decision that DNA identification of arrestees is "a reasonable search that can be considered part of a routine booking procedure," saying it is similar to fingerprinting and photographing,
But Justice Antonin Scalia, who wrote a scathing dissenting opinion, challenged the court's assertion that DNA is being taken not to solve crimes but to identify those in custody.
"Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches," Scalia wrote.
Locally, a warrantless DNA search became a factor in the case of Tracy Alan Zornes, who was charged with first-degree murder and arson in the deaths of John Cadotte and Megan Londo on Feb. 19, 2010, in Moorhead. Zornes was accused of killing the two and burning down the apartment building where their bodies were found.
After arresting Zornes but before obtaining a search warrant, Moorhead police took DNA swabs from his genitals and from inside his cheek. A detective told the court that officers didn't wait for a warrant because they were concerned Zornes might destroy any DNA from Londo possibly still on his body.
A judge in Clay County ruled the warrantless DNA search couldn't be used at trial, but it didn't matter in the end: Zornes was ultimately convicted by a jury and sentenced to life in prison.
Collecting 'just in case'
Fargo police have an agreement with the Cass County Jail in which jail staff swab the inside of the arrestee's cheeks, known as a buccal swab, to collect his or her DNA during the booking process.
Claus said it's unclear how useful DNA collection after arrest has been in investigations, but he said DNA databases in general have been useful. With North Dakota's relatively low population and crime rate, the state crime lab has been able to conduct DNA traces even for property crimes, whereas other states' labs are often backlogged, Claus said.
"We routinely collect evidence at scenes ... just in case we can collect DNA," he said. "Our lab's been very good about running all cases for us, and the bigger that database gets, the better chance we have of identifying suspects."
For example, Fargo police solved a car break-in based on blood left on the vehicle that matched the DNA of a registered sex offender, Claus said.
Collecting DNA has become more important as criminals become wise to law enforcement tactics, Claus said.
"Criminals adapt to changes just like anybody else," he said, adding DNA "is becoming easier in some cases to find than a fingerprint. ... But it's only as valuable as its ability to identify a specific suspect."
Practiced in 28 states
The practice of collecting DNA from arrestees began as early as 1990 in South Dakota, according to a study by the Urban Institute's Justice Policy Center. And its popularity has picked up in recent years.
From 2006 to 2011, 22 states passed laws authorizing the collection and analysis of DNA from people arrested or charged with specific offenses, a "notable increase" from the half-dozen states that had passed arrestee DNA laws in the previous 15 years, the study noted.
Currently, Minnesota and North Dakota are among 28 states with laws that allow police to collect DNA from people after they are arrested but before they are convicted of a crime.
About half of those states, including North Dakota, authorize DNA to be collected from people arrested for any felony crime, while the other half, including Minnesota, limit DNA collection to a subset of felonies, usually involving violence, sexual assault or serious property crimes, according to the study funded by the U.S. Justice Department and released last month. Seven states, including Minnesota, also collect DNA from people arrested for or charged with certain misdemeanor crimes.
Federal law is broader than any of the state laws, allowing federal authorities to collect DNA from all arrestees and non-U.S. citizens detained by the government, the study says.
In North Dakota, those arrested for a felony who haven't been charged within a year or whose cases have been resolved by dismissal, acquittal or a misdemeanor conviction, can petition the district court to seal the court record. The state lab must destroy all DNA samples from the person and remove him or her from the DNA database. Minnesota law has a similar provision for arrestees whose cases result in acquittal or dismissal.
DNA testing in North Dakota
What North Dakota state law says about DNA testing of arrestees:
"An individual eighteen years of age or over who is arrested or summoned to appear before a magistrate for the commission of a felony shall provide to a law enforcement officer or correctional personnel at the time of the individual's arrest or appearance or upon booking into a correctional facility a sample of blood or other body fluids for DNA law enforcement identification purposes and inclusion in the law enforcement identification databases. If it is determined that the individual's DNA sample is included in the law enforcement identification databases, an additional sample is not required."
DNA testing in Minnesota
What Minnesota state law says about DNA testing of arrestees:
"Sheriffs, peace officers, and community corrections agencies operating secure juvenile detention facilities shall take or cause to be taken biological specimens for the purpose of DNA analysis as defined in section 299C.155, of the following:
... persons who have appeared in court and have had a judicial probable cause determination on a charge of committing, or persons having been convicted of or attempting to commit, any of the following ... "
The law then lists murder, manslaughter, assault, robbery, kidnapping, false imprisonment, criminal sexual conduct, incest, burglary and incident exposure.
Minnesota also allows DNA collection in certain gross misdemeanor and misdemeanor cases.
Readers can reach Forum reporter Mike Nowatzki at (701) 241-5528