LEZLIE STERLING / lsterling@sacbee.com

Khiana White, 15, right, lights a candle in memory of her friend Jessica Funk-Haslam, whose killing one year ago is among 140 unsolved homicides from 2000 through 2012 being investigated by the Sacramento County Sheriff's Department.

Editorial Notebook: Swabs solve cases, but at what cost?

Published: Wednesday, Jun. 5, 2013 - 12:00 am | Page 12A
Last Modified: Wednesday, Jun. 5, 2013 - 8:56 am

I've talked to loved ones desperately waiting for justice. I've attended vigils like one in March for Jessica Funk-Haslam, the Rosemont teen whose killer is still out there.

So I get why advocates for crime victims are applauding Monday's U.S. Supreme Court ruling that lets police take DNA samples from people merely arrested, not convicted, for serious crimes, and without having to get a warrant.

California is one of 28 states where authorities routinely do so. Investigators are increasingly using DNA matches to solve rapes, murders and other cold cases. Since the state started collecting samples from people arrested on suspicion of felonies in 2009, the number of "hits" with profiles from unsolved crimes jumped from about 180 a month to more than 400, aiding more than 18,500 investigations, the attorney general's office said in a brief filed in support of the Maryland law upheld Monday.

Still, I feel uneasy at the thought of so many people having to give genetic information to the government.

The court, itself, reflected that conflict in its 5-4 decision, one that brought together unusual coalitions. I rarely agree with Justice Antonin Scalia, but in this case the court's arch-conservative makes some compelling points.

Scalia, who joined three liberal justices in a scathing dissent, called the ruling a "vast" and "scary" expansion of police power. It punches a gaping hole in the Fourth Amendment because a person can be searched for evidence without probable cause that they were involved in a specific crime.

Is it that far-fetched to imagine a police department going on a fishing expedition, arresting people just to get more DNA samples into the system? Innocent people have been known to be wrongly arrested. Testing labs have made mistakes.

"Solving unsolved cases is a noble objective," Scalia wrote, "but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches."

Justice Anthony M. Kennedy of Sacramento, writing for the majority, said taking and analyzing a DNA swab is just like taking fingerprints, only more accurate.

It's much more than that. Our genetic profile is something of our very essence as human beings. It can point to risks for certain diseases. Once your DNA profile is in a national database, what safeguards are there that it won't be misused or mishandled? As we all know, breaches of personal information have happened.

California's law, which is being challenged in state and federal courts, is even more sweeping than Maryland's. Here, samples are taken from people arrested for a broader range of felonies. If charges are dropped or someone is acquitted, they have to apply to get their genetic profile removed from the state databank.

Yes, there's a cost to letting some criminals go unpunished. There's also a price to compromising our liberties, however slightly it may seem.

Just as we don't want to become a country where police can barge into your home in the middle of the night so they can rummage around, do we really want to become a place where it's almost routine for police to swab your cheek?

Follow Foon Rhee on Twitter @foonrhee.

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