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Justices debate Maryland DNA collection law

WASHINGTON — The Supreme Court’s justices appeared divided Tuesday over the constitutionality of a Maryland law that permits police to collect DNA samples from people arrested on charges of having committed or having attempted to commit a violent crime.

Calling the case “the most important criminal procedure case that this court has heard in decades,” Justice Samuel A. Alito Jr. said that swabbing an arrestee’s cheek for genetic material is no more invasive than collecting a fingerprint, a practice the high court has long found constitutional.

“Why is this not the fingerprinting of the 21st Century?” Alito said of DNA collection.

But Justice Sonia Sotomayor equated the taking of an arrestee’s DNA sample to a warrantless search of his or her home, which, absent an emergency, violates the Fourth Amendment of the U.S. Constitution.

“How far do we let the state go?” Sotomayor asked. “There is something inherently dangerous in DNA collection.”

The Supreme Court was reviewing the Maryland Court of Appeals’ decision that found warrantless collection of DNA on arrest unconstitutional in nearly every possible circumstance.

Maryland is one of 28 states to allow the pre-conviction collection of DNA, although the specific limits of collection and use vary from state to state.

The Maryland case has drawn dozens of friend-of-the-court briefs from parties ranging from states, police groups and sexual assault victims’ advocates urging the court to uphold warrantless DNA collection, to forensic science experts, defense attorney groups and civil liberties organizations urging the court to strike down such laws.

The Maryland Court of Appeals found the state’s DNA Collection Act would pass constitutional muster only when collecting a genetic sample is the only way police can determine the detainee’s identity.

Other purposes, such as using the DNA sample to investigate additional crimes, require a warrant under the Fourth Amendment, the Maryland Court of Appeals held last April in Alonzo Jay King Jr. vs. Maryland.

Chief Deputy Attorney General Katherine Winfree, arguing the case for the state on Tuesday, urged the justices to overturn the state court’s ruling. DNA collection on arrest helps law enforcement achieve the “compelling goal” of knowing who they have in custody and whether those people committed other crimes, she said.

Nor does the Constitution bar the collection of DNA from arrestees, who have already been handcuffed and searched for weapons, because they have “a reduced expectation of privacy” under the Fourth Amendment, Winfree said.

But Kannon K. Shanmugam, representing the respondent, King, said warrantless DNA collection is “presumptively unconstitutional” when used to investigate the detainee’s potential involvement in other crimes.

The practice raises “profound privacy concerns” because DNA contains “a great deal of personal information” not disclosed by a person’s fingerprint.

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

Shanmugam, a partner at Williams & Connolly LLP in Washington, D.C., argued the case pro bono for the Maryland Office of the Public Defender.

Both attorneys’ arguments drew praise and criticism — sometimes from the same justice.

Justice Antonin Scalia lauded the state’s effort at solving crimes but said the warrantless DNA collections might be going too far.

“The purpose is to catch the bad guys,” Scalia said. “Sometimes the Fourth Amendment stands in the way.”

Shanmugam’s argument drew fire from Chief Justice John G. Roberts Jr., who questioned whether an arrestee — or anyone, for that matter — has a reasonable expectation of privacy in their DNA.

“It is left wherever you happen to have been,” Roberts said. “We disclose all of this personal [DNA] information when we take a drink of water and leave the glass behind.”

Justice Stephen G. Breyer said DNA collection “works both ways” insofar as it can link arrestees to crimes or exonerate them.

In addition, DNA collection is “no more intrusive than fingerprinting,” Breyer said. “It’s more accurate.”

‘On the gateway’

Deputy U.S. Solicitor General Michael R. Dreeben, who also argued before the high court, pressed the federal government’s support for Maryland’s position that DNA collection is constitutional.

“People who are arrested on probable cause are not similarly situated with other people,” who enjoy broad protection against unreasonable searches, Dreeben said.

“They are on the gateway into the criminal justice system,” he added. “The expectation of privacy is minimal.”

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

Roberts stayed the Maryland Court of Appeals decision last July, pending a final decision by the Supreme Court. In his order granting the stay, Roberts said there is a “fair prospect” the Supreme Court will overturn the Maryland court’s ruling and uphold the constitutionality of the DNA collection.

The Supreme Court is expected to render its decision in Maryland v. King, No. 12-207, by the end of the court’s term this summer.

The Maryland high court, in its controversial ruling, overturned a rape conviction and life sentence of King, whose DNA sample — taken after his arrest for an unrelated assault in 2009 — was linked to the 2003 sexual attack.

The police had confirmed King’s identity in the 2009 assault through photographs and fingerprints and thus “had no legitimate need for a DNA sample in order to be confident who it arrested or to convict him on the first- or second-degree assault charges,” Judge Glenn T. Harrell Jr. wrote for the 5-2 majority.

“We simply will not allow warrantless, suspicionless searches of biological materials without a showing that accurate identification was not possible using ‘traditional’ methods,” Harrell added. “[T]here are conceivable, albeit somewhat unlikely, scenarios where … the state may secure the use of DNA samples, without a warrant under the Act, as a means to identify an arrestee, but not for investigatory purposes, in any event.”

Other courts that have considered the issue have reached different conclusions — as did Judge Mary Ellen Barbera, who dissented from the King decision, saying arrestees have a “significantly diminished expectation of privacy” with regard to police taking a DNA sample from them.

Barbera was joined in dissent by retired Judge Alan M. Wilner, who sat by special assignment. As for the assault charge, King was found guilty of a misdemeanor count of second-degree assault and sentenced to four years in prison with all but one year suspended.

Kimberly Atkins of Lawyers USA, a sister publication of The Daily Record, contributed to this report.