Court questions legality of warrantless DNA

By Kimberly Atkins
The Daily Record Newswire
BOSTON — As they grilled the lawyers arguing before them on the issue of whether police can collect DNA samples from unconvicted arrestees without a warrant, the justices of the U.S. Supreme Court acknowledged just how high the stakes are.

“I think this is, perhaps, the most important criminal procedure case that this Court has heard in decades,” said Justice Samuel A. Alito Jr. during last week’s oral arguments in the case Maryland v. King.

As the justices pondered whether the Fourth Amendment prohibits police from swabbing the cheeks of arrested individuals for DNA samples — samples that contain the intimate details of each person’s genetic makeup — several of them expressed a clear concern about the future implications of their ruling in the case.

“Police officers who give Breathalyzer tests, they can also take a Q-tip or whatever and get a DNA sample, right?” asked Chief Justice John G. Roberts Jr. at one point during arguments.

The case involves a Maryland man whose DNA was collected after his arrest on assault charges. His DNA was later matched with a sample from a rape kit in another case. He appealed his resulting rape conviction, and the state’s highest court ruled in his favor, holding that the state law authorizing the warrantless collection and use of the pre-conviction DNA sample was unconstitutional.

Maryland is one of 28 states — including Arizona, Louisiana, Michigan, Minnesota, Missouri, the Carolinas and Virginia — to enact laws allowing the pre-conviction collection of DNA, although the specific limits of collection and use vary from state to state.

The case has drawn dozens of amicus briefs from parties ranging from states, police groups and sexual assault victims’ advocates urging the Court to uphold warrantless DNA collection laws, to forensic science experts, defense attorney groups and civil liberties organizations urging the Court to strike such laws as unconstitutional. At the heart of the debate is the tension between two competing interests: crime solving and privacy protection.

As Justice Antonin G. Scalia summed it up during oral arguments: “To catch the bad guys [is] a good thing. But you know, the Fourth Amendment sometimes stands in the way.”

‘Reliable tool’ requiring reasonable suspicion?
Attorneys arguing for the state and federal government argued that the law was constitutional because those arrested for serious crimes have fewer privacy protections than members of the general public.

Maryland Chief Deputy Attorney General Katherine Winfree argued that the law “enables the state to identify perpetrators of crimes,” and noted that the 225 DNA profile matches made so far have led to 75 prosecutions and 42 convictions.

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

Winfree stressed that only identification information is used from DNA samples, not other genetic information. She also noted that the Maryland law limits DNA data collection to subjects in cases involving violent crimes.

Roberts noted that the legal argument advanced by the state, if adopted, “wouldn’t be so limited, would it?”

“Under your theory, there’s no reason you couldn’t undertake this procedure with respect to anybody pulled over for a traffic violation,” Roberts said.

Winfree distinguished traffic stops, which are inherently “brief and temporary,” from arrestees in police custody and suspected of dangerous offenses. But Justice Ruth Bader Ginsburg still expressed concern.

“It’s a very reliable tool,” Ginsburg said of DNA data, “but it’s not based on any kind of suspicion.”

Winfree responded: “The cornerstone of our argument is that when an individual is taken into custody [on] a probable cause arrest, that person by virtue of being in that class of individuals whose conduct has led the police to arrest him ... surrenders a substantial amount of liberty and privacy.”

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

Deputy Solicitor General Michael R. Dreeben, arguing on behalf of the federal government as amicus curiae, backed Maryland’s position by focusing on the individuals whose DNA is collected.

“They are on the gateway into the criminal justice system,” Dreeben said. “These are not like individuals who are free citizens.”

“Yes,” Roberts said, “but that does not mean, for example, that you can go into their house without a warrant.”

‘Just trust us’ defense
Kannon K. Shanmugam, a partner at Williams & Connolly in Washington arguing on the defendant’s behalf, said the statute at issue violates the basic legal tenet that “warrantless, suspicionless searches are presumptively unconstitutional.”

Roberts asked whether the expectation of privacy in one’s DNA information is really reasonable “when it’s left everywhere you have been.”

“If you’re in the interview room and you take a drink of water and you leave, you’re done,” Roberts said. “They can examine the DNA from that drink of water.”
Shanmugam said cheek swabs are a different matter.

“There is an intrusion into the body, and that triggers the applicability of the Fourth Amendment here to be sure,” he said.

Justice Stephen G. Breyer questioned the practical application of a ruling that restricts the state’s use of DNA evidence to solve crimes at a time that defendants increasingly seek the same type of evidence to exonerate them — all based on its inherent accuracy.

“It goes both ways,” Breyer said.

Shanmugam said the use of the data by police and prosecutors is different.

“There are profound privacy concerns associated with the government’s collection of an individual’s DNA [because] there is a great deal of personal information contained there.”

And, Shanmugan added, “the government’s response to that is essentially the ‘just trust us’ defense.”

A decision in the case is expected later this term.