Supreme Court rules that a DNA swab after an arrest, without a conviction, is a legitimate search
4 June 2013
Washington (CNN) — The Supreme Court has ruled criminal suspects can be subjected to a police DNA test after arrest — before trial and conviction — a privacy-versus-public-safety dispute that could have wide-reaching implications in the rapidly evolving technology surrounding criminal procedure.
At issue in the ruling Monday was whether taking genetic samples from someone held without a warrant in criminal custody for “a serious offense” is an unconstitutional “search.”
A 5-4 majority of the court concluded it is legitimate, and upheld a state law.
“When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, 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,” the majority wrote.
Law enforcement lauds genetic testing’s potential as the “gold standard” of reliable evidence gathering, especially to solve “cold cases” involving violent offenders.
But privacy rights groups counter the state’s “trust us” promise not to abuse the technology does not ease their concerns that someone’s biological makeup could soon be applied for a variety of non-criminal purposes.
Twenty-six states and the federal government allow genetic swabs to be taken after a felony arrest and without a warrant.
Each has different procedures, but in all cases, only a profile is created. About 13 individual markers out of
some 3 billion are isolated from a suspect’s DNA. That selective information does not reveal the full genetic makeup of a person and, officials stress, nothing is shared with any other public or private party, including any medical diagnostics.
The Obama administration has signaled its support.
The case involves a Maryland man convicted of a 2003 rape in Wicomico County in the state’s Eastern Shore region. Alonzo King Jr. had been arrested four years ago on an unrelated assault charge, and a biological sample was automatically obtained at that time. That sample was linked to the earlier sexual assault.
King moved to suppress that evidence on Fourth Amendment grounds, but was ultimately convicted of the 2003 first-degree rape offense and was given a life sentence. The Fourth Amendment grants the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”
Both King and his legal team turned down CNN’s request for an interview.
A divided Maryland Court of Appeals later agreed with King, saying suspects under arrest enjoy a higher level of privacy than a convicted felon, outweighing the state’s law enforcement interests. That court also said obtaining King’s DNA immediately after arrest was not necessary in identifying him, and that the process was more personally invasive than standard fingerprinting.
But the high court decided in favor of the state. Kennedy was joined by Chief Justice John Roberts, and Justices Clarence Thomas, Stephen Breyer, and Samuel Alito.
The issue of citizen privacy has been particularly acute since the 9/11 attacks. Federal and state governments have stepped up surveillance of suspected terrorists and their allies and of high-risk targets, like government buildings and shopping malls.
The current conservative-majority court has generally been supportive of law enforcement in recent search and privacy disputes, but not always. The court last year ruled police could not place a GPS tracking device on a drug suspect’s car for several weeks without first obtaining a search warrant.
In a sharply worded dissent, Justice Antonin Scalia said the majority’s reasoning established a “terrifying principle.”
“The court’s opinion barely mentions the crucial fact about this case: the search here was entirely suspicionless. The police had no reason to believe King’s DNA would link him to any crime.”
Scalia added the state law “manages to burden uniquely the sole group for whom the Fourth Amendment’s protections ought to be most jealously guarded: people who are innocent of the state’s accusations,” describing of the legal concept of innocent until proven guilty.
He was supported by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. Scalia’s prior support of Fourth Amendment protections is well-documented, so his siding with three more liberal members of the court was not surprising.
A 1994 federal law created a national database in which local, state, and federal law enforcement agencies can compare and share information on DNA matches from convicted felons, but courts have been at odds on just when such samples can be collected and the information distributed.
In a brief filed by 49 states supporting Maryland, officials also said the information is secure, and retested when an initial “hit” is identified. After a warrant is issued for probable cause, another fresh DNA sample is taken and it is that test that is used to ultimately prosecute in court. Each initial test costs about $30.
The Fourth Amendment requires the government to balance legitimate law enforcement interests with the privacy rights of individuals. A key area of concern in the high court was whether developing “Rapid DNA” technology would allow initial identification testing to be completed within about two hours. Currently it can take two weeks or more, depending on backlogs.
Civil liberties groups worry inadequate testing by overwhelmed lab technicians can lead to errors, such as the one that sent Dwayne Jackson to prison for armed robbery. It was three years before a lab mistake was noticed, and the Nevada man was freed as an innocent man.
DNA — Deoxyribonucleic acid — is a coded molecule providing a genetic map for the development of all known living organisms. By 2000, all 50 states and the federal government required DNA collection from convicted offenders, and that was soon expanded by many jurisdiction to criminal arrests.
The number of offender profiles in federal Combined DNA Index System is now about 10 million, with more than a million arrestee profiles.
Congress in December passed the Katie Sepich Enhanced DNA Collection Act, a grant program to help states pay for the expanded system. The 22-year-old woman was murdered in 2003, but her killer was not identified until three years later, after his conviction for another crime, when his DNA matched cold-case evidence found under the victim’s fingernails.
Her mother, Jayann Sepich, personally lobbied lawmakers for months to ensure passage.
President Obama signed the bill earlier this year. “It’s the right thing to do,” he said in 2010, of expanding DNA swabs for arrestees. “This is where the national registry becomes so important.”
The case is Maryland v. King (12-207).
By Lawrence Hurley
3 June 2013
(Reuters) – In a major victory for law enforcement agencies, a divided Supreme Court on Monday ruled that police can take a DNA sample from someone who has been arrested and charged but not convicted of a serious crime.
On a narrow 5-4 vote the court reversed a decision last April by Maryland’s highest court that overturned the 2010 conviction and life sentence of Alonzo Jay King for a rape committed seven years earlier.
The high court, in an opinion written by Justice Anthony Kennedy, handed a victory to the state of Maryland by saying taking of DNA samples from arrestees was similar to taking fingerprints. Of the 50 states, 29 have such laws along with the federal government.
DNA samples can be taken if police have probable cause to detain a suspect facing charges relating to a serious offense, Kennedy said.
Taking a sample using a swab of the cheek is “like fingerprinting and photographing, a legitimate police booking procedure,” Kennedy said.
King’s right under the U.S. Constitutional Fourth Amendment to be free from unreasonable search and seizure had therefore not been violated, the justice added.
Maryland Attorney General Douglas Gansler welcomed the decision, saying it was a “resounding victory for law enforcement.” Laws like the one in Maryland help close “unsolvable cold cases” and can help exonerate those wrongly accused, he added.
King’s attorney could not immediately be reached for comment.
The sample King gave after a 2009 arrest in Wicomico County on two unrelated assault charges linked him to a 2003 rape. He was sentenced to life in prison after being convicted of the rape and was convicted of one count of misdemeanor assault on the 2009 charges.
The Maryland appeals court had concluded that King’s Fourth Amendment rights were violated when he was required to provide his DNA upon being arrested.
The key legal question before the Supreme Court was whether police could take his DNA sample when, at the time of the test, they had no evidence linking him with the rape.
The American Civil Liberties Union had backed King. The group’s legal director, Steven Shapiro, said the ruling eliminated a “crucial safeguard” by allowing police to conduct a search without having the “individualized suspicion” that the suspect is linked with a particular crime.
Justice Antonin Scalia, a conservative, joined Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, all from the liberal wing of the court, in dissenting from the decision.
Taking issue with Kennedy’s focus on DNA being used to identify suspects, Scalia said that view “taxes the credulity of the credulous.”
He noted, for example, that in King’s case the police did not start the process of taking the DNA sample until three days after the arrest.
“I suspect, though, that they did not wait three days to ask his name or take his fingerprints,” Scalia wrote.
In the immediate aftermath of the ruling there was some uncertainty about Kennedy’s reference to the court limiting the decision to those arrested for “serious offenses.” That is a phrase from the Maryland law, which defined serious offenses as a crime of violence or burglary.
But in his dissent, Scalia described the term as a “senseless distinction” and indicated that he thinks that under the court’s rationale, DNA could be taken after any arrest.
Of the states that have similar laws to Maryland, 13 limit DNA collection to those arrested for a felony, while the others limit it to those accused of certain felonies, according to Jayann Sepich, who runs a nonprofit called DNA Saves that advocates for DNA collection laws.
She described Monday’s ruling as “incredibly important” because she said DNA collection laws can solve crimes and prevent repeat offenders from committing further offenses.
There are already 1.3 million arrested suspects and 10 million convicted people nationwide whose DNA has been collected, according to U.S. Federal Bureau of Investigation data.
The case is Maryland v. King, U.S. Supreme Court, No. 207.
(Reporting by Lawrence Hurley; Editing by Howard Goller, David Storey and Cynthia Osterman)