Supreme Court Upholds Maryland Law; Police May Take DNA
Samples From Arrestees
(By Robert Barnes, Washington Post, June 3, 2013)
A divided Supreme Court ruled Monday
that police may take DNA samples as part of a routine arrest booking for
serious crimes, narrowly upholding a Maryland law and saying the samples can be
considered similar to fingerprints. “DNA
identification represents an important advance in the techniques used by law
enforcement to serve legitimate police concerns for as long as there have been
arrests,” Justice Anthony M. Kennedy wrote in the 5 to 4 ruling. The decision overturned a ruling by Maryland’s highest court that the law allows unlawful searches of those arrested to
see whether they can be connected to unsolved crimes. The federal government
and 28 states, including Maryland, allow taking DNA samples.
The court split in an unusual
fashion. The dissenters were three of the court’s liberals, and conservative
Justice Antonin Scalia, who amplified his displeasure by reading a summary of
his dissent from the bench. “The court
has cast aside a bedrock rule of our Fourth Amendment law: that the government
may not search its citizens for evidence of crime unless there is a reasonable
cause to believe that such evidence will be found,” Scalia said from the bench. He added: “Make no mistake about it: Because
of today’s decision, your DNA can be taken and entered into a national database
if you are ever arrested, rightly or wrongly, and for whatever reason.” Scalia was joined by Justices Ruth Bader
Ginsburg, Sonia Sotomayor and Elena Kagan.
Kennedy wrote that the decision was
more limited than that: DNA can be taken from those suspected of “serious”
crimes. He said that police have a legitimate interest in identifying the
person taken into custody and that the DNA samples could make sure that a
dangerous criminal is not released on bail.
“By comparison to this substantial government interest and the unique
effectiveness of DNA identification, the intrusion of a cheek swab to obtain a
DNA sample is a minimal one,” Kennedy wrote. He was joined by Chief Justice
John G. Roberts Jr. and Justices Clarence Thomas, Stephen G. Breyer and Samuel
A. Alito Jr.
The challenge to the Maryland law
was brought by Alonzo Jay King Jr., whose DNA was taken after a 2009 arrest for
assault and used to connect him to an unsolved rape. Maryland Gov. Martin O’Malley (D) said in a
statement: “Today’s Supreme Court ruling is important because it confirms an
important weapon in our arsenal to fight violent crime in our state. DNA collection has been a very effective new
tool in our efforts to save lives by reducing violent crime and resolving open
investigations.”
Police Can Collect DNA From Arrestees, Court Says
(By Jesse J.
Holland, Associated Press, June 3, 2013)
A sharply divided Supreme Court on Monday
cleared the way for police to take a DNA swab from anyone they arrest for a serious
crime, endorsing a practice now followed by more than half the states as well
as the federal government. The justices
differed strikingly on how big a step that was.
‘‘Taking and analyzing a cheek swab of the arrestee DNA is, like
fingerprinting and photographing, a legitimate police booking procedure that is
reasonable under the Fourth Amendment,’’ Justice Anthony Kennedy wrote for the
court’s five-justice majority. The ruling backed a Maryland law allowing DNA
swabbing of people arrested for serious crimes.
But the four
dissenting justices said the court was allowing a major change in police
powers, with conservative Justice Antonin Scalia predicting the limitation to
‘‘serious’’ crimes would not last. ‘‘Make
no mistake about it: Because of today’s decision, your DNA can be taken and
entered into a national database if you are ever arrested, rightly or wrongly,
and for whatever reason,’’ Scalia said in a sharp dissent which he read aloud
in the courtroom. ‘‘This will solve some extra crimes, to be sure. But so would
taking your DNA when you fly on an airplane — surely the TSA must know the
‘identity’ of the flying public. For that matter, so would taking your
children’s DNA when they start public school.’’
Maryland Attorney
General Doug Gansler agreed that there’s nothing stopping his state from
expanding DNA collection from those arrested for serious crimes to those
arrested for lesser ones like shoplifting.
‘‘I don’t advocate expanding the crimes for which you take DNA, but the
legal analysis would be the same,’’ Gansler said. ‘‘The reason why Maryland
chooses to only take DNA of violent criminals is that you’re more likely to get
a hit on a previous case. Shoplifters don’t leave DNA behind, rapists do, and
so you’re much more likely to get the hit in a rape case.’’ Twenty-eight states and the federal
government now take DNA swabs after arrests. But a Maryland court said it was
illegal for that state to take Alonzo King’s DNA without approval from a judge,
ruling that King had ‘‘a sufficiently weighty and reasonable expectation of
privacy against warrantless, suspicionless searches’’ under the Fourth
Amendment to the Constitution.The high court’s decision reverses that ruling and reinstates King’s rape conviction, which came after police took his DNA during an unrelated arrest. Kennedy, who is often considered the court’s swing vote, wrote the decision along with conservative-leaning Chief Justice John Roberts and Justices Samuel Alito and Clarence Thomas. They were joined by liberal-leaning Justice Stephen Breyer, while the dissenters were the conservative-leaning Scalia and liberal Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Kennedy called collecting DNA useful for police in identifying individuals. ‘‘The use of DNA for identification is no different than matching an arrestee’s face to a wanted poster of a previously unidentified suspect, or matching tattoos to known gang symbols to reveal a criminal affiliation, or matching the arrestee’s fingerprints to those recovered from a crime scene,’’ Kennedy said. ‘‘DNA is another metric of identification used to connect the arrestee with his or her public persona, as reflected in records of his or her actions that are available to police.’’
But the American
Civil Liberties Union said the court’s ruling created ‘‘a gaping new exception
to the Fourth Amendment.’’ ‘‘The Fourth
Amendment has long been understood to mean that the police cannot search for
evidence of a crime — and all nine justices agreed that DNA testing is a search
— without individualized suspicion,’’ said Steven R. Shapiro, the group’s legal
director. ‘‘Today’s decision eliminates that crucial safeguard. At the same
time, it’s important to recognize that other state laws on DNA testing are even
broader than Maryland’s and may present issues that were not resolved by
today’s ruling.’’ Maryland’s DNA
collection law only allows police to take DNA from those arrested for serious
offenses such as murder, rape, assault, burglary and other crimes of violence.
In his ruling, Kennedy did not say whether the court’s decision was limited to
those crimes, but he did note that other states’ DNA collection laws differ
from Maryland's.
Scalia saw that
as a crucial flaw. ‘‘If you believe that a DNA search will identify someone
arrested for bank robbery, you must believe that it will identify someone
arrested for running a red light,’’ he said.
Scott Berkowitz, president and founder of the Rape, Abuse and Incest
National Network, cheered the decision and called DNA collection ‘‘a
detective’s most valuable tool in solving rape cases.’’ ‘‘We’re very pleased that the court
recognized the importance of DNA and decided that, like fingerprints, it can be
collected from arrestees without violating any privacy rights,’’ he said. ‘‘Out
of every 100 rapes in this country, only three rapists will spend a day behind
bars. To make matters worse, rapists tend to be serial criminals, so every one
left on the streets is likely to commit still more attacks. DNA is a tool we
could not afford to lose.’’
Getting DNA swabs
from criminals is common. All 50 states and the federal government take cheek
swabs from convicted criminals to check against federal and state databanks,
with the court’s blessing. The fight at the Supreme Court was over whether that
DNA collection could come before conviction and without a judge issuing a
warrant. According to court documents,
the FBI’s Combined DNA Index System or CODIS — a coordinated system of federal,
state and local databases of DNA profiles — already contains more than 10
million criminal profiles and 1.1 million profiles of those arrested. According
to the FBI, the DNA samples from people whose charges have been dismissed, who
have been acquitted or against whom no charges have been brought are to be
expunged from the federal system. But states and other municipalities that
collect DNA make their own rules about what happens to their collections.
In the case
before the court, a 53-year-old woman was raped and robbed but no one was
arrested. Almost six years later, Alonzo King was arrested and charged with felony
second-degree assault in a separate case. Relying on the Maryland law that
allows warrantless DNA tests following some felony arrests, police took a cheek
swab of King’s DNA, which matched a sample from the 2003 Salisbury rape. King
was convicted of rape and sentenced to life in prison. King eventually pleaded guilty to a lesser
charge of misdemeanor assault from his arrest, a crime for which Maryland
cannot take warrantless DNA samples. The state court said King’s rights
therefore had been violated when the state took his DNA based on that arrest
alone. Maryland stopped collecting DNA
after that decision, but Roberts allowed police to keep collecting DNA samples
pending the high court’s review. (The
case is Maryland v. King, 12-207.)___
On The Net:
The FBI’s
frequently asked questions about its DNA databases: http://www.fbi.gov/about-us/lab/biometric-analysis/codis/codis-and-ndis-fact-sheet
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