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Supreme Court reinstates Md. DNA law

A divided Supreme Court on Monday upheld a Maryland law that permits police to collect DNA samples from people arrested on charges of committing or attempting to commit a violent crime.

In its 5-4 decision, the high court said that swabbing the inside of the cheek for DNA is no different than fingerprinting or photographing a detainee — post-arrest police actions that the court has upheld.

“The legitimate government interest served by the Maryland DNA Collection Act is one that is well established: the need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody,” Justice Anthony M. Kennedy wrote for the majority.

A DNA profile also gives police “a form of identification to search the records already in their valid possession,” Kennedy added.

He likened it to “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.”

Monday’s decision overturned an April 2012 ruling by Maryland’s top court that found warrantless collection of DNA on arrest unconstitutional in nearly every possible circumstance. The Maryland Court of Appeals had said the state’s DNA Collection Act would pass constitutional muster only when collecting a genetic sample is the sole way police can determine the detainee’s identity.

The Court of Appeals’ decision has been on hold while it was under review by the Supreme Court.

Maryland Attorney General Douglas F. Gansler, whose office petitioned for high court review, called the decision “a resounding victory for law enforcement and victims of crime.

“Some criminals leave fingerprints at the scene of a crime; other criminals leave DNA at the scene of a crime,” Gansler said. “Law enforcement should have both tools at their disposal.”

But Stephen B. Mercer, of the Maryland Office of the Public Defender, assailed the decision as clearing the way for police officers to get information on an individual’s entire genetic code — despite law enforcement’s pledge that DNA will be used only for identification purposes.

“It’s like [the state] taking all of your medical records and saying they’ll just look at the first page,” said Mercer, chief attorney of the office’s forensics division.

“All Marylanders who care about their genetic privacy should be alarmed and ready to explore political options,” such as repealing the DNA collection law, he added.

Dissent: ‘Taxes credulity’

Kennedy’s opinion drew a strong dissent from Justice Antonin Scalia, who faulted the majority for its narrow reading of the constitutional provision prohibiting unreasonable searches and seizures.

While gathering DNA on arrest will solve more crimes, “so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the ‘identity’ of the flying public), applies for a driver’s license, or attends a public school,” Scalia wrote.

“Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.”

The Fourth Amendment bans the government from searching for evidence of crime unless it has a basis for believing the person searched committed the crime or has incriminating evidence, Scalia wrote.

“That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment,” he added.

“The court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the state’s custody, taxes the credulity of the credulous. And the court’s comparison of Maryland’s DNA searches to other techniques, such as fingerprinting, can seem apt only to those who know no more than today’s opinion has chosen to tell them about how those DNA searches actually work.”

Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined Scalia’s dissent.

It also earned Scalia a vote of approval from the ACLU of Maryland, where staff attorney David A. Rocah said the majority decision “creates a gaping new exception to the Fourth Amendment.”

Prior Supreme Court decisions permitting a DNA search required police to first have “individualized suspicion” that a person participated in a crime, said Rocah, whose group joined the national American Civil Liberties Union in a brief urging the high court to strike down the DNA collection law.

“Today’s decision eliminates that crucial safeguard,” Rocah said. “We find ourselves in strong agreement with Justice Scalia.”

No added indignity

Maryland’s highest court expressed similar concerns last year when it overturned the rape conviction and life sentence of Alonzo Jay King Jr., 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 Court of Appeals’ 5-2 majority.

The Supreme Court’s decision reinstated King’s conviction.

Lisae C. Jordan, executive director of the Maryland Coalition Against Sexual Assault, praised the outcome, adding that King might still be free had his DNA not been taken.

“This helps give victims confidence that after sexual assault when they get up on a table and have evidence collected from intimate parts of their body, law enforcement will put that evidence to good use,” said Jordan, whose group filed a brief urging the justices to uphold Maryland’s collection law.

Kennedy, in his opinion, said that individuals arrested on suspicion of a violent crime have a “diminished” expectation of privacy, having been handcuffed, fingerprinted and photographed.

“A brief intrusion of an arrestee’s person is subject to the Fourth Amendment, but a swab of this nature does not increase the indignity already attendant to normal incidents of arrest,” Kennedy wrote. “If in the future police analyze samples to determine, for instance, an arrestee’s predisposition for a particular disease or other hereditary factors not relevant to identity, that case would present additional privacy concerns not present here.”

Joining Kennedy’s opinion were Chief Justice John G. Roberts Jr., Clarence Thomas, Stephen G. Breyer and Samuel A. Alito Jr.

The case is Maryland v. Alonzo Jay King Jr., No. 12-207.