DNA Collection Questioned as Court Weighs Privacy Rights

Photographer: Robert Nickelsberg/Getty Images

Police officers stand over two men who tried to outrun the police after an LAPD patrol car attempted to pull the suspects over in downtown Los Angeles, California, on Jan. 30, 2013. The car's driver was charged with evading the police while in pursuit and the passenger was found with an outstanding arrest warrant on him. Close

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Photographer: Robert Nickelsberg/Getty Images

Police officers stand over two men who tried to outrun the police after an LAPD patrol car attempted to pull the suspects over in downtown Los Angeles, California, on Jan. 30, 2013. The car's driver was charged with evading the police while in pursuit and the passenger was found with an outstanding arrest warrant on him.

The U.S. Supreme Court, hearing what one justice said might be the biggest criminal procedure case in decades, considered overturning as many as 29 state and federal laws that allow the collection of DNA samples when a person is arrested.

In an hour-long argument full of rapid-fire questions, the justices debated whether the constitutional ban on unreasonable searches requires officials to wait until a person is convicted.

The session produced no consensus beyond Justice Samuel Alito’s characterization of it as “perhaps the most important criminal procedure case that this court has heard in decades.” The ruling in the Maryland case will be the court’s first on the privacy of genetic information and may have implications for other cutting-edge police techniques in the future.

Several justices, including Stephen Breyer and Antonin Scalia, suggested they may cross the ideological lines that often divide the court. Scalia signaled his skepticism toward Maryland’s collection program immediately, scoffing when the state’s lawyer opened her argument by touting the 225 matches and 42 convictions the state had secured.

“I’ll bet you if you conducted a lot of unreasonable searches and seizures, you’d get more convictions, too,” Scalia said. “That proves absolutely nothing.”

Innocent Exonerated

Breyer pointed to the usefulness of DNA, saying court filings by outside groups described “case after case” where samples from arrested people had helped exonerate someone who had been wrongfully convicted.

Compared to fingerprints, “it’s much more accurate, and that doesn’t just help the defendant,” Breyer said.

The court is considering the case of Alonzo King, who was arrested in Maryland for assault in 2009 and was linked through his DNA to an unsolved 2003 rape. President Barack Obama’s administration is backing Maryland in the case.

Until 2008, Maryland collected DNA samples only from people who were convicted of a felony. The state amended its law in 2008 to include anyone arrested for a crime of violence or burglary.

After taking a sample, Maryland ships it to a laboratory to create a profile -- a string of numbers almost always unique to that person. The state then submits the profile to CODIS, a national database maintained by the Federal Bureau of Investigation. The database allows comparison of the new profile to unknown DNA on file.

Fourth Amendment

Maryland’s highest court threw out King’s rape conviction last year, saying the state had violated the Fourth Amendment. The court pointed to the “vast genetic treasure map” the state would be acquiring for each person arrested.

Maryland’s chief deputy attorney general, Katherine Winfree, argued that arrested people have a “reduced expectation of privacy.” The state also points to safeguards in the law, including requirements that samples be destroyed, with the records expunged, if a judge throws out the charges or the person is acquitted.

Winfree drew resistance from Chief Justice John Roberts, who said her argument would apply equally to “anybody pulled over for a traffic violation.”

Kagan Query

Justice Elena Kagan similarly questioned whether the state’s position had a logical stopping point, saying Maryland’s argument would let it search the house or car of anyone arrested in the hope of finding evidence of an unrelated crime.

“Just because you’ve been arrested doesn’t mean that you lose the privacy expectations in things you have that aren’t related to the offense that you’ve been arrested for,” Kagan said.

Michael Dreeben, a Justice Department lawyer, said DNA collection was little different from fingerprinting -- a practice that is now routine procedure at intake centers, even though the Supreme Court has never ruled on its constitutionality.

He drew support from Alito, who called DNA collection the “fingerprinting of the 21st century.”

Justice Anthony Kennedy also emerged as a likely vote for the government. He asked King’s lawyer, Kannon Shanmugam, to acknowledge that Maryland had a “legitimate interest” in discovering whether King could be connected to any unsolved crimes.

Short-Circuited

Shanmugam argued that, while the state does have an interest in solving crimes, it can’t short-circuit the usual requirement that police have reason to suspect a particular person before conducting a search.

“It is settled law that warrantless, suspicionless searches are presumptively unconstitutional,” Shanmugam argued.

The crucial vote may belong to Roberts, said Steven Shapiro, legal director of the American Civil Liberties Union, after the argument.

Roberts directed questions at both sides, asking Shanmugam how his client could have a privacy interest when police could have collected King’s DNA off a glass of water.

“How legitimate is it for you to expect privacy in something that the police can access without you even knowing about it?” Roberts asked.

Granting Bail

Roberts was one of several justices who suggested the state could legitimately collect DNA -- and check for matches to unsolved crimes -- to help a magistrate judge decide whether a suspect should be granted bail.

The problem, Roberts said, is that states don’t process DNA quickly enough for that to happen. Although Winfree said that in less than two years states would have “rapid DNA analyzers” to make comparisons in 90 minutes, Roberts said that potential might not be enough for Maryland to win the case.

“How can I base a decision today on what you tell me is going to happen in two years?” Roberts asked. “You say in two years we will have this rapid DNA available, but we don’t now. Don’t I have to base a decision on what we have today?”

The case, which the court will decide by June, is Maryland v. King, 12-207.

To contact the reporter on this story: Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editor responsible for this story: Steven Komarow at skomarow1@bloomberg.net

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