HELENA – Montana won’t be affected immediately by a U.S. Supreme Court decision this week that affirmed the right of police in some states to collect DNA samples from arrested people who had not yet been tried or convicted of crimes.
In Montana, state and local law enforcement officials now can obtain a DNA sample, but only after someone is convicted of a crime, according to the Montana Justice Department. Law enforcement officials here also can get a DNA sample from a suspect, but only after obtaining a search warrant based on probable cause.
But the issue could arise in future legislative sessions here if lawmakers try to change state law.
Attorney General Tim Fox was unavailable for an interview Tuesday on the U.S. Supreme Court decision, but his office released this statement him:
“In the wake of the U.S. Supreme Court’s decision, the Montana Department of Justice will be conferring with law enforcement, legislators, the governor and other stakeholders over the next biennium to determine if changes in our state laws are merited, while ensuring Montanans’ constitutional rights are protected.”
One barrier – or one constitutional protection, depending on one’s view – that might prevent changing the DNA collection law here is that Montana, unlike most states, has an explicit constitutional right to individual privacy.
Mark Murphy, a retired prosecutor who works as the lobbyist for the Montana County Attorneys Association, said, “Montana’s individual right to privacy has been used a number of times with search-incident-to-arrest (cases). It’s been highly controversial over the years.”
Scott Crichton, executive director of the American Civil Liberties Union of Montana, defended the role of the right to privacy in Montana.
“Gratefully, we have heightened protections in Montana due to our explicit right to privacy,” Crichton said. “We at ACLU would defend legislative protections as need be.”
What’s clear from the decision is while the justices talk about identifying perpetrators, it’s really about solving unsolved crimes, Crichton said, and no one disputes how important that is.
“But the Fourth Amendment has long been interpreted to mean that the police can’t be searching for evidence without an individualized suspicion of a crime,” he said.
The Fourth Amendment to the U.S. Constitution bans unreasonable searches and seizures and requires any search warrants to be authorized by a judge based upon probable cause.
Crichton said he rarely tries to predict what a future Legislature will do.
“This is one of the instances where Justice (Antonin) Scalia is the defender of individual rights,” Crichton said of the often-conservative justice. “You can’t make predictions about how people will be disposed of to defend individual rights.”
On a 5-4 decision Monday, the U.S. Supreme Court affirmed a Maryland law that allowed DNA evidence to be taken of people arrested for “serious” crimes.
The Associated Press reported that Justice Anthony Kennedy, writing for the majority, said, “Taking and analyzing a cheek swab of the arrestee DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.”
Twenty-eight states and the federal government now take DNA swabs after making arrests, the AP reported. The remainder, including Montana, do not.