- The Washington Times - Monday, June 3, 2013

A divided U.S. Supreme Court ruled Monday that police can collect DNA samples from people arrested in — but not yet convicted of — serious crimes without first obtaining a warrant, likening the effective technique used by police in more than half the 50 states to fingerprinting or photographing of suspects.

The court on a 5-4 vote upheld a 2009 Maryland law allowing DNA collection, citing the benefits of the science to law enforcement in solving crimes and rejecting the minority’s concerns that it violates Fourth Amendment prohibitions against warrantless or unreasonable searches.

“When officers make an arrest supported by probable cause to hold for a serious offense and 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,” Justice Anthony M. Kennedy wrote in the court’s opinion.

Chief Justice John G. Roberts Jr. and justices Clarence Thomas, Stephen G. Breyer and Samuel Anthony Alito Jr. agreed with the ruling. Conservative Justice Antonin Scalia joined liberal justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan in dissenting.

“Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches,” Justice Scalia wrote.

The decision stems from the case of Alonzo King Jr., who was convicted and sentenced to life in prison for a 2003 rape in Salisbury, Md. Authorities collected a DNA swab from King when he was arrested on assault charges in April 2009, and four months later the DNA was matched to DNA from the rape.

Currently, 28 states allow some form of DNA collection from arrestees, but the type of crimes for which police can collect DNA as well as timing of the collection and analysis vary widely among states.

“The Maryland law that the court upheld today is very different from laws in other states and the federal government,” said Michael Risher, an attorney with the American Civil Liberties Union of Northern California, who filed a legal brief in the Maryland case that supported King.

Maryland allowed DNA to be collected from those accused in a subset of felonies, including any crime of violence; first-, second- and third-degree burglary, and any attempts of those crimes. California allows DNA to be collected in all felony cases, which could include entering a store with the intent to shoplift or walking a dog off a leash on federal property, Mr. Risher noted.

“Because it is somewhat vaguely written, it doesn’t give a lot of guidance to states that might be considering adopting similar laws,” he said. “If it’s all about this balancing test then it should matter what type of offense prompted the arrest.”

Because the majority opinion offered little guidance on acceptable DNA collection procedures, Maryland’s somewhat limited law, which requires that DNA be collected after a person is formally charged with a crime rather than upon arrest and destroyed if charges are dropped or if defendants are acquitted, could become a blueprint for the remainder of states that are interested in adopting similar legislation.

“It could serve as a model,” said Penn State law professor David Kaye, the main author of a nonpartisan amicus brief submitted on behalf of 10 scientists. “The publicity that comes with a Supreme Court decision could renew some efforts in some state legislatures.”

Monday’s decision was regarded as a victory among law-enforcement officials who say analysis of arrestees’ DNA has led to closures in other unsolved crimes.

“This decision will help us solve cases and take criminals off the street,” Maryland Attorney General Douglas F. Gansler said. “We were confident all along the court would agree that taking a DNA swab is no more invasive than taking someone’s fingerprints — and that DNA is an important tool in both identifying the guilty and exonerating the wrongly accused.”

More than 19,500 arrestees currently have their DNA samples on file within the Maryland DNA database, said Greg Shipley, spokesman for the Maryland State Police. Since arrestees began having their DNA collected in January 2009, officials have recorded 245 hits among those in the system — resulting in 79 arrests.

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