Constitutionality of DNA collection challenged in Supreme Court

WASHINGTON — Lawyers battled in the Supreme Court on Tuesday about whether Maryland law enforcement authorities can gather DNA samples from people who are charged with, but not convicted of a crime.

As Maryland’s Chief Deputy Attorney General Katherine Winfree began the case by rattling off statistics in support of DNA collection, Justice Antonin Scalia interjected almost immediately.

“I’ll bet if you conducted a lot of unreasonable searches and seizures, you’d get more convictions, too,” Scalia said. “That proves absolutely nothing.”

The case revolves around Alonzo Jay King Jr., who was arrested in 2009 for first-degree assault. Officials took a DNA swab from his mouth and connected and convicted of him of a 2003 rape.

Most of the justices used a “slippery slope” line of questioning, challenging Winfree to define what Maryland could use the DNA for, and to explain how the government would nix any attempt from authorities to abuse the collection of molecular evidence.

“Just because you’ve been arrested doesn’t mean that you lose the privacy expectations,” Justice Elena Kagan said. “The state doesn’t have the right to go search your house for evidence of unrelated crimes.”

Gathering DNA from a person in custody cannot be compared to police arbitrarily rummaging through someone’s house, Winfree responded. Even if swabbing was considered invasive, it is at such a minimal level that it does not outweigh the interest of states to catch criminals, she said.

Arguing the case alongside Winfree was Michael R. Dreeben, the U.S. deputy solicitor general.

Dreeben extoled the acquisition of DNA as invaluable to solving cold cases and reassured the justices that the samples would be used only for identification purposes. DNA collection in Maryland is reserved for individuals charged with violent crimes and first-degree burglary.

“The government has a tremendous need for this information at the time of arrest to solve crimes, exonerate the innocent and give closure to victims,” Dreeben said.

Arguing for King was Kannon K. Shanmugam, who said the swabbing violated his client’s Fourth Amendment rights. The amendment protects people from unreasonable search and seizure. Not only were Maryland’s actions unconstitutional, he argued, but they could also crack open a Pandora’s Box. That could lead to a society in which anyone could be subjected to warrantless DNA swabbing with the only justification being that they may have committed a crime at some point in their lives.

Shanmugam said he was not disputing that certain intrusions of privacy are permissible to those under arrest, but that extracting DNA samples from people not convicted of any wrongdoing is too extreme.

Justice Samuel A. Alito Jr., asked why DNA swabbing couldn’t be the “fingerprinting of the 21st century.”

“This is perhaps the most important criminal procedure case that this court has heard in decades,” Alito said. “So this is what is at stake: Lots of murders, lots of rapes that can be solved using this new technology that involves a very minimal intrusion on personal privacy.”

Shanmugam conceded that as a means of identification, DNA is far more powerful than fingerprints. But the tradeoff of privacy for security simply is not worth it.

“First of all, there is an intrusion into the body,” Shanmugam said of the swabbing. “But secondly, and perhaps more importantly, there is a legitimate expectation of privacy in the contents of an individual’s DNA.”

About half of the states have laws similar to Maryland’s, but all 49 other states filed a friend of the court brief in support of Maryland’s position. Civil liberties groups and some scientists argued that as DNA technology improves, the invasion of privacy could be more severe. They also argued that it will be increasingly difficult to keep the data private.

The court is expected to rule in the case Maryland v. Alonzo Jay King Jr. by summer.

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