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Routine DNA Testing After Arrest Upheld by Top U.S. Court

Routine DNA Testing After Arrest Upheld by U.S. High Court
The federal government and at least 26 states allow DNA collection at arrest and more may now adopt the practice. Photographer: Freya Ingrid Morales/Bloomberg

June 3 (Bloomberg) -- States can routinely collect DNA samples from people arrested for a serious crime, a divided U.S. Supreme Court ruled, limiting privacy rights and giving police a powerful investigative tool for solving old crimes.

The justices, voting 5-4, reinstated Alonzo Jay King Jr.’s conviction for a 2003 Maryland rape, a crime police solved only by matching DNA collected from King when he was arrested on an unrelated assault charge six years later.

The federal government and at least 26 states allow DNA collection at arrest and more may now adopt the practice. A dissenting opinion by Justice Antonin Scalia said the decision will also let states collect DNA from people arrested for minor offenses. The ruling is the court’s first on the privacy of genetic information.

“A suspect’s criminal history is a critical part of his identity that officers should know when processing him for detention,” Justice Anthony Kennedy wrote for the majority. He likened DNA sampling to fingerprinting, calling DNA “a markedly more accurate form of identifying arrestees.”

The ruling produced an unusual alignment, with Justice Stephen Breyer, a Democratic appointee, joining Kennedy and three other Republican-appointed members of the court in the majority. Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined Scalia in dissent.

Kennedy said states could collect DNA from people arrested for “serious offenses,” a limit Scalia said was meaningless. Scalia said the majority’s reasoning would permit DNA to be taken from someone arrested for a traffic offense.

Scalia Dissent

“Make no mistake about it: As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason,” Scalia wrote.

Scalia, a 1986 appointee of President Ronald Reagan, took the unusual step of reading a summary of his dissent from the bench.

“The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence,” Scalia wrote. “That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment.”

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

DNA Collection

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.

The ruling is likely to spark renewed efforts to enact similar laws elsewhere, said Jayann Sepich, who founded DNA Saves to advocate for collection laws after her daughter, Katie, was raped and murdered in 2003. Sepich said she was already hearing from state lawmakers optimistic about their chances for winning approval of new measures.

“When DNA is taken sooner rather than later, it can identify criminals sooner rather than later,” Sepich said in an interview from her New Mexico home. “Because they are identified, they are no longer able to be free to murder and rape again and again.”

Timothy McVeigh

In upholding the Maryland law, Kennedy said the measure advanced the “well established” governmental interest of quickly and accurately identifying people in custody. He pointed to the case of Timothy McVeigh, who was arrested for driving without a license plate and later identified -- though not through DNA evidence -- as the suspect in the 1995 bombing of the federal building in Oklahoma City.

Steven R. Shapiro, legal director for the American Civil Liberties Union, said identification wasn’t the real purpose behind the collection laws.

“As Justice Scalia’s dissent convincingly demonstrates, DNA testing of arrestees has little to do with identification and everything to do with solving unresolved crimes,” Shapiro said in a statement. Still, he said the ruling may not address issues raised by even broader DNA-collection laws in other states.

At the Supreme Court, King argued that Maryland was seeking to short-circuit the usual requirement that police have reason to suspect a particular person before conducting a search.

Obama Administration

The Obama administration backed Maryland in the case, saying DNA collection was similar to fingerprinting -- a practice that is now routine procedure at intake centers, even though the Supreme Court had never ruled directly on its constitutionality.

Supporters of DNA sampling pointed to cases where collection upon arrest might have prevented additional crimes. Privacy advocates said there are more effective ways to get DNA to solve crimes without raising constitutional concerns.

After taking a cheek swab, Maryland ships the sample 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.

Maryland says it uses the DNA it collects only for identification purposes and doesn’t analyze the genetic coding that determines a person’s biological traits. 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.

The case is Maryland v. King, 12-207.

To contact the reporter on this story: Greg Stohr in Washington at

To contact the editor responsible for this story: Steven Komarow at

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