Supreme Court Issues Important Decision Regarding DNA Collection

A divided Supreme Court issued an important opinion today, Maryland v. King, saying that police are allowed to routinely take DNA from those suspects they arrest without first securing a warrant. The important criminal law decision equated a DNA cheek swab with the commonly accepted practice of fingerprinting.

The case involved a woman who was raped and robbed but police never were able to identify a suspect. Years later, Alonzo King was arrested and charged with second-degree assault. Police took advantage of the Maryland law which allowed warrantless DNA tests following some arrests, and took a swab of King’s cheek. After putting the DNA into a database, the police got a hit for the earlier rape and King was ultimately convicted and sentenced to life in prison.

Justice Kennedy, who wrote for the five-justice majority, said that taking a DNA swab is like fingerprinting and photographing which is already part of a legitimate police booking procedure and is acceptable under the Fourth Amendment.

The case was seen as important not only because of the increasing importance of DNA evidence, but also because of how prevalent the practice already is among the states. As of today, at least 28 states and the federal case engage in warrantless DNA collection. A Maryland court that heard the case said the practice was illegal and said that the state first needed approval from a judge before taking a suspect’s DNA. The Maryland court said that a reasonable expectation of privacy prevented such warrantless searches.

The Supreme Court disagreed with the Maryland court and reinstated King’s rape conviction. Kennedy wrote that in the way it was used in this case, DNA for the purpose of identification is no different than matching someone’s face to a wanted poster or matching tattoos to known gang symbols. According to the justice, the procedure of taking a swab from a cheek is not substantially different than taking a fingerprint from a suspect and matching it to those recovered from a crime scene.

The dissent was harshly critical and led by outspoken Justice Antonin Scalia. Scalia warned the public that because of today’s decision anyone’s DNA could be taken and entered into a national database if they are ever arrested for any reason. Scalia’s trouble with the case was not about the taking of the DNA itself, which is seen as a common step in many criminal investigations. Instead, the issue is one of timing. Taking the DNA before a conviction and without judicial approval is what Scalia had a problem with given that suspects are forced to divulge incredibly valuable and personal information to law enforcement without any judicial oversight.  

Read the full opinion here.

Read: “Supreme Court Upholds Warrantless Collection Of DNA,” by Mark Memmott, published at NPR.org.

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Adam Liptak at the New York Times recently discussed a crucial case currently before the U.S. Supreme Court and how the impact of the decision could be felt across police stations and in court rooms across the country for years to come. The justices appeared to be aware of just how important the case was, with Justice Alito saying that he though it was possibly “the most important criminal procedure case that this court has heard in decades.”

The case deals with whether police are allowed to take DNA samples from people who have been arrested. The case began after a suspect in Maryland, Alonzo Jay King, Jr., was arrested on assault charges back in 2009. A sample of King’s DNA was taken by swabbing his cheek at the time of his arrest, but prior to any conviction, and it later matched evidence from a rape that took place several years prior. King was eventually convicted for the rape and appealed the case to the Maryland Court of Appeals which agreed that taking DNA from those arrested but not yet convicted violates the Fourth Amendment.

While it may be true the DNA collection process is valuable to police departments and has helped nabbed criminals, that does not mean it should be permitted, a point aptly made by Antonin Scalia. Justice Scalia, in responding to a claim that the DNA evidence helped obtain 42 convictions in Maryland, said it was great news and he thought if the police conducted a bunch of other unreasonable searches and seizures they might get even more. He made clear that he thought the effectiveness of the program proved nothing. In an odd alliance, Justice Ginsburg voiced her agreement that the DNA testing practice might be problematic under the Fourth Amendment which requires a warrant before police can conduct a search.

The justices never even discussed the issue of collecting DNA from suspects who had already been convicted of crimes, instead the issue was solely over what the Fourth Amendment might say regarding those suspects who have only been arrested. Justice Roberts said that while Maryland’s law limits the DNA samples to those arrested for serious crimes, there was nothing preventing the law from siding down a slippery slope, perhaps authorizing such DNA searches for everyone pulled over for speeding. Playing a good devil’s advocate, Roberts also said he wondered about the expectation of privacy in DNA when it can be so easily obtained. For instance, Roberts said that simply taking a sip of water leaves behind a wealth of private information.

Alito said that the technology at issue is potentially hugely important and could be used to solve a multitude of murders, rapes and other heinous crimes. He appeared to see the value of it, asking, “Why isn’t this the fingerprinting of the 21^st century?” This issue seemed to be the focus of oral arguments, with King’s attorneys saying that DNA and fingerprints differ in that fingerprints are used almost solely to identify people while DNA is used to solve cold cases. We’ll have to wait a while to hear what the justices think.

Read: “Justices Wrestle Over Allowing DNA Sampling at Time of Arrest,” by Adam Liptak, published at NYTimes.com.

Earlier:

Supreme Court To Hear DNA Collection Challenge

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Supreme Court May Hear Case Regarding DNA Database

The Supreme Court will likely hear a Maryland case this term regarding a law that allows law enforcement to take DNA samples of anyone arrested for a crime--before the individual has been convicted of a crime.
Many people may know or expect that individuals convicted of crimes are required to submit to DNA collection in Tennesee. Something most people are unaware of is that there is a Tennessee law that requires law enforcement to take a DNA sample once someone has been arrested for all violent felonies.

The collection law states: (1) When a person is arrested for the commission of a violent felony, the person shall have a biological specimen taken, for the purpose of DNA analysis to determine identification characteristics specific to the person as defined in subsection (a). After a determination by a magistrate or a grand jury that probable cause exists for the arrest, but prior to the person's release from custody, the arresting authority shall take the sample using a buccal swab collection kit for DNA testing. The biological specimen shall be collected by the arresting authority in accordance with the uniform procedures established by the Tennessee bureau of investigation, pursuant to § 38-6-113, and shall be forwarded by the arresting authority to the bureau, which shall maintain the sample as provided in § 38-6-113. The court or magistrate shall make the provision of a specimen a condition of the person's release on bond or recognizance if bond or recognizance is granted.

Tennessee law requires the Tennessee Bureau of Investigation to establish a DNA database. The database was established nationally by the Federal Bureau of Investigation to enable crime laboratories to exchange DNA profiles for unknown subjects and other offenders.

The law was championed as a tool to help law enforcement find and capture those who commit serious offenses in the state, but opponents of the law argue that it allows law enforcement to trample on the 4th Amendment rights of those who have been arrested but not yet convicted of anything. These opponents of the law argue that DNA samples represent an unreasonable search and seizure of private information when the person has been accused and not convicted of a serious offense.

DNA is a powerful tool that law enforcement can use to tie a person to a crime or crime scene when other evidence is lacking. Adding DNA to the state and national database is expected to help close multiple cases that have gone cold, often because the existing physical evidence, without DNA, was not enough to lead investigators to the perpetrator.

Prior to the implementation of the T.C.A. Section 40-35-321, police were required to obtain a warrant for DNA evidence before they were legally allowed to collect it. For those who are later acquitted or have their charges dismissed, the DNA information is supposed to be removed from the statewide database.

Read: “California and the Fourth Amendment,” published at NYTimes.com.
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