Last week, the Vermont Supreme Court confirmed that police may not warrantlessly take DNA from everyone arraigned for a felony. That's great news for the Vermont Constitution.

The case arose from a 2009 omnibus bill that made dozens of changes to Vermont's criminal law. The bill included a provision mandating that DNA be extracted, without a warrant, after arraignment ((Arraignment is one of the first stages in the criminal process. At arraignment, a person accused of a crime appears before the superior court and has the charge(s) against her read aloud by the court. For many people charged with a crime, arraignment will also be the first time that a judge makes an initial, cursory assessment of whether there is probable cause to believe that the accused person committed the crime. The 2009 measure mandated that the police take a DNA sample from every person for whom the superior court decided that probable cause existed.)) from everyone charged with a felony. ((Historically, crimes were divided into misdemeanors and felonies, with the latter being treated as more serious. In modern day Vermont, the distinction is not particularly useful. Felonies are simply those offenses carrying maximum possible punishments exceeding two years' prison time, so about 80% of the offenses in Vermont's criminal code are felonies.))

The 2009 law did not require the police to obtain a search warrant before extracting the DNA from the accused person. That's notable, because chapter 1, article 11 of the Vermont Constitution normally requires search warrants as a safeguard between us and the executive branch of the government (police and prosecutors). It requires the executive branch to ask the judicial branch (the courts) for permission to intrude on our privacy by showing probable cause to believe that the place to be searched will contain evidence of a crime.

In the last two decades, however, police and prosecutors have been trying to convince courts that there are instances in which they should be allowed to search without either a search warrant or probable cause. Such instances are called suspicionless, or "special needs" searches. [pullquote]Police and prosecutors cannot skip getting search warrants just because it would be easier to do so.[/pullquote] Courts have permitted special needs searches only where the executive branch can show that (1) its need for the item sought is outside of routine crime investigation, and (2) its need for the item outweighs the privacy of the person whose body or property is to be searched. In other words, police and prosecutors cannot skip getting a search warrant just because it would be easier not to.

The dispute decided by the supreme court on Friday concerned whether the 2009 legislation mandating warrantless DNA extraction from arraignees is a special needs search.

In a victory for privacy, the court concluded that it is not. First, the executive branch failed to identify an unusual circumstance justifying the collection of DNA before conviction. Currently, Vermont collects DNA from those who are convicted of certain crimes. The executive branch could not come up with a convincing explanation for moving the point of collection up to before conviction. The executive branch argued that it needs DNA after arraignment to confirm the identity of the person arraigned, but provided no evidence showing that Vermont prosecutors have ever had systemic doubts about whether they are arraigning the right people.

Second, the executive branch failed to show that its need for the DNA outweighed the accused's right of privacy.
A police hunch about someone's guilt is not good enough when it comes to unconsensually extracting their genetic code.
[/pullquote] As everyone learned in school, the American courts presume that people accused of crimes are innocent unless and until proven guilty. A person who has been arrested for, but not convicted of, a crime, is innocent in the eyes of the law, and retains the same privacy rights as anyone else. Before conviction, the court concluded, a police hunch about someone's guilt is not good enough when it comes to unconsensually extracting their genetic code.

Of course, Friday's ruling does not mean that the police can never obtain an arrestee's DNA. It just means that the police must abide by Article 11 and get a warrant.