JURIST Guest Columnist Danielle Ardner, Valparaiso University Law School, Class of 2016, discusses how Cleveland police are obstructing Ohio’s mandatory DNA collection law…It was 15 years before serial rapist and murderer Larry McGowan had his DNA properly collected in Ohio as mandated by law. McGowan is currently serving an 11-year sentence for an Akron rape, where Akron police were finally able to obtain his DNA during a 2012 arrest. Once McGowan’s DNA was entered into the Ohio DNA Databank, his DNA identified him as a suspect in a string of rapes in Cleveland reported between 1996 through 2010, as well as the 1997 rape and murder of another woman.

McGowan is a career criminal, having been intertwined with the justice system for more than a decade, while managing to evade mandatory DNA collection. McGowan is one of at least 300 prisoners a state lab determined did not have their DNA properly collected and entered into appropriate databases.

Serial killer and rapist Anthony Sowell and suspected serial rapist George Young are two other high-profile individuals who escaped Ohio’s mandatory DNA collection law. In Sowell’s case, his DNA was never entered into the massive national database used to identify criminals and link them to their crimes. State officials are unaware of how his DNA sample was lost. Young’s DNA, however, was never collected, because Cleveland police failed to collect it when he was arrested in 2012 for his involvement in a shooting. Why are Cleveland police resisting Ohio’s mandatory DNA collection law?

In 2011, Ohio enacted a law that requires all adults arrested for a felony to submit to a DNA collection. The law has been criticized for being overly “broad and intrusive.” Those concerned about their civil liberties being violated are stuck asking why DNA samples are taken prior to conviction, as opposed to after conviction, as previous law required.

Collecting DNA samples from arrestees has been a growing trend since 1997, when Louisiana became the first state to pass such legislation. Then, eight years later, four more states passed arrestee DNA collection laws. Congress next passed the DNA Fingerprint Act of 2005, enabling states to upload arrestee DNA profiles to the National DNA Index System (NDIS), and between 2006 and 2011, 23 more states passed arrestee DNA collection legislation into law. In 2011, Ohio became one of 28 states to pass arrestee DNA collection legislation. The federal government has also passed legislation authorizing arrestee DNA collection.

Although collecting DNA samples is mandatory by law in Ohio, Cleveland police have been falling short on upholding their end of the law. In 2014, from January through August, Cleveland police made 6,608 arrests for felony charges, but only 2,001 DNA samples made it to Ohio’s crime lab. In 2013, Cleveland police made 10,136 felony arrests, but only submitted 1,589 samples to Ohio’s Bureau of Criminal Investigation. The number correlation between felony arrests and DNA collections portrays a frightening reality: Cleveland police are obstructing Ohio’s mandatory DNA collection law.

A Cleveland police department policy allows felony arrestees to refuse DNA collection in exchange for a misdemeanor charge of obstructing official business. However, only one person arrested for a felony who refused to provide a DNA sample to Cleveland police so far this year was charged with obstructing official business. Cleveland Municipal Court Administrative Judge Ronald Adrine stated that he rarely sees misdemeanor cases concerning charges for those refusing to submit a DNA sample after a felony arrest. Judge Adrine recalled having only one such case.

The duty to collect DNA samples falls on Cleveland police officers. Judge Adrine stated that Ohio law gives police agencies the authority to collect these DNA samples without a warrant and he specifically pointed out that the law says police officers “shall” do it.

Police in Columbus are also failing to adequately enforce Ohio’s DNA collection law. If arrestees in Columbus refuse a DNA swab, officers in charge of transporting the arrestee simply write “refused” on a card and give it to a supervisor. In Toledo, Akron, Parma and Cincinnati, the police will obtain a court order from a judge to force individuals who refuse DNA testing to give law enforcement a sample.

Cleveland police could be trying to protect arrestees’ civil liberties, but the protection of civil liberties is not directly the concern of Cleveland police. However, police are responsible for upholding the law.

In Maryland v. King, the Supreme Court ruled that it is reasonable for police officers to collect DNA samples from those arrested for felonies. Justice Kennedy, writing for the majority, stated that “taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure,” that is reasonable under the Fourth Amendment.

DNA collection via cheek swabbing is “quick and painless,” providing “unparalleled accuracy” of identification of the arrestee, according to Justice Kennedy. He further stated that DNA is used to “connect the arrestee with his public persona,” as indicated in police records, “assessing the danger he poses to the public.” Justice Kennedy noted that “criminal history is critical” when processing a suspect.

There are concerns over exonerated or innocent arrestees’ DNA being kept in the databases after release. Brendan Heil, in his Law Review article [PDF], argues that Ohio’s DNA law subjects those found innocent to “repetitive privacy intrusions” every time a DNA search is conducted. Although controversial, the Supreme Court held in King that collecting an arrestee’s DNA before conviction is “a reasonable part of the booking process.”

Collecting DNA prior to conviction, rather than post-conviction, leads to the collection of more samples, broadening and expanding the DNA databases and increasing the efficiency for solving and preventing violent crimes. More DNA samples in the database lead to more hits during database searches, which in turn leads to a larger number of crimes being solved and a greater amount of criminals being held accountable for their wrongdoing. You have nothing to fear if you have nothing to hide.

The office of Ohio Attorney General Mike DeWine, provides the DNA collection kits [PDF] to every police department for free. DeWine’s office also provides training on proper collection to minimize errors when collecting buccal swabs to ensure the correct demographic information is collected and included with each DNA sample.

Ohio’s mandatory DNA collection law is meant to assist law enforcement in identifying arrestees, connecting their DNA to their criminal record and to ultimately provide a comprehensive report into who this arrestee is and what they are capable of. The DNA samples are then entered into databases and are used as an extremely useful investigative tool for solving and preventing violent crimes.

Cleveland is no stranger to police corruption, but police should not be hindering the work of other law enforcement officers, investigators, prosecutors and government officials by violating Ohio’s laws. It is the duty of police officers to protect, serve and uphold the law. Cleveland police would never release an individual without obtaining their fingerprints, so they should uphold and vigilantly advocate for DNA collection of felony arrestees, instead of disregarding state law.

Cuyahoga County Prosecutor Timothy J. McGinty stated that he is “baffled by Cleveland’s policy” because “besides being counter to state law, it potentially prevents crimes, like rapes, from being solved.” McGinty described Cleveland police as performing “substandard police work” by not always collecting DNA samples for felony arrests, as mandated by law.

Assistant Cuyahoga County Prosecutor Brian McDonough stated that “the simple act of following the law to collect DNA upon a felony arrest will ultimately be what helps prosecutors put away the worst of the worst.”

Danielle Ardner is a second-year honors student at Valparaiso University Law School in Indiana. She has a B.A. in Political Science from Mercyhurst University, with a focus on Applied Politics. Danielle has a passion and perseverance for writing.

Suggested Citation: Danielle Ardner, Cleveland Police Evade Ohio’s Mandatory DNA Collection Law, JURIST – Student Commentary, Dec. 10, 2014, http://jurist.org/student/2014/12/danielle-ardner-cleveland-dna.php.