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U.S. Supreme Court authorizes post-arrest DNA collection

A divided U.S. Supreme Court ruled Monday that police in Maryland and elsewhere can continue the warrantless collection of DNA from people arrested — but not convicted — of serious crimes.

The 5-4 decision upheld a state law that allows investigators to take genetic information from arrestees, a practice followed by the federal government and about half the states. Police generally compare suspects' DNA to records from other cases in hopes of developing leads.

The case, which amplified a long-running debate over the limits of government search-and-seizure powers, began with a challenge from a Wicomico County man linked to a rape after his DNA was taken in an unrelated arrest.

Justice Anthony Kennedy, writing for the majority, said DNA collection was a legitimate booking procedure akin to fingerprinting and photographing for the purpose of "identifying" suspects.

But in a dissent that aligned some of the court's liberal members with conservative Justice Antonin Scalia, the minority said the court's decision overextends police powers. Scalia quoted Maryland Gov. Martin O'Malley and Attorney General Douglas F. Gansler describing DNA collection as a crime-fighting tool.

"Make no mistake about it: As an entirely predictable consequence of today's decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason," Scalia wrote. He took the rare step of reading the statement from the bench.

Gansler called the decision a "resounding victory for law enforcement," and said the court appropriately found there is no difference between taking fingerprints and swabbing a suspect's mouth for DNA, which he called the "21st-century fingerprint."

"In fact you could argue the taking of DNA is less intrusive than fingerprints — at least you don't have ink on your fingers," he said.

Law enforcement is already authorized to handcuff suspects, pat them down, draw blood, and strip-search someone before taking them to a jail cell, he said. "Clearly, they can touch the inside of your cheek and take a DNA swab," Gansler said.

Stephen B. Mercer, chief attorney within the Maryland Public Defender's Forensics Division, said he believes the decision could set the stage for a universal DNA database made up of all citizens.

"All Marylanders who care about their genetic privacy should be alarmed and ready to explore political options," Mercer said.

The American Civil Liberties Union said in a statement that the court's decision "creates a gaping new exception to the Fourth Amendment."

"DNA testing has little to do with identification and everything to do with solving unresolved crimes," said Steven R. Shapiro, the ACLU's national legal director. "While no one disputes the importance of that interest, the Fourth Amendment has long been understood to mean that the police cannot search for evidence of a crime … without individualized suspicion. Today's decision eliminates that crucial safeguard."

Shapiro said some other states have even broader DNA laws than Maryland, and those laws could present issues left unresolved by the ruling.

Alonzo King, who challenged the DNA law in the Wicomico County case, was arrested in 2009 on an assault charge, and his DNA profile was matched to evidence in a 2003 rape case for which he was later convicted.

The case raised questions about whether the Fourth Amendment protected him from having his DNA collected when he had been arrested but not convicted.

The Maryland Court of Appeals had ruled it was illegal for the state to take DNA without approval from a judge, saying King had "a sufficiently weighty and reasonable expectation of privacy against warrantless, suspicionless searches."

Chief Justice John G. Roberts Jr. had authorized Maryland law enforcement to continue collecting the samples until the Supreme Court ruled on the constitutionality of the law.

In the majority opinion, Kennedy said that DNA swabs were taken from people already charged and in custody, and said it was "irrefutable identification of the person from whom it was taken" without constituting evidence of a crime. Linking someone's DNA to a sample in a police database is not alone enough to charge or convict someone of a crime, supporters say.

"A DNA profile is useful to the police because it gives them a form of identification to search the records already in their valid possession," Kennedy wrote.

Scalia blasted the assertion that DNA collection is primarily for identification, saying it "taxes the credulity of the credulous." It took days for authorities to collect King's swab and months to have it entered into a database.

If the process of identifying someone includes finding out what unsolved crimes he or she has committed, Scalia wrote, then it is "indistinguishable from the ordinary law enforcement aims that have never been thought to justify a suspicionless search."

"Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches," he wrote.

But Gansler said civil libertarians "should be rejoicing at this opinion," saying it helps solve crimes that might never be solved otherwise and exonerates the wrongly accused.

O'Malley, who has been a major proponent of DNA collection, said in a statement that the ruling "confirms an important weapon in our arsenal to fight violent crime in our state."

Mercer, of the state public defender's office, said that just because the tool has been effective does not mean it conforms with the Fourth Amendment, and challenged Gansler's comparison of DNA to fingerprints.

"If the state wants to play the fingerprint game, the very same rule that controls fingerprints would mean DNA collected to investigate someone requires a warrant or probable cause," Mercer said.

Of the states that have laws similar to Maryland's, 13 limit DNA collection to those arrested for a felony, while the others limit it to those accused of certain felonies, according to Jayann Sepich, who runs a nonprofit called DNA Saves that advocates for DNA collection laws.

She described Monday's ruling as "incredibly important" because, she said, DNA collection laws can solve crimes and prevent repeat offenders from committing further offenses.

There are 1.3 million arrested suspects and 10 million convicted people nationwide whose DNA has been collected, according to FBI data.

In Maryland, law enforcement is authorized to collect a DNA sample when a suspect is arrested for committing or attempting to commit a violent crime or burglary.

In 2011, the last year for which data are available in Maryland, DNA was taken from more than 10,500 people arrested for committing or attempting to commit a violent crime. Those samples have matched evidence for 78 unsolved crimes and led to nine convictions. If the suspect is not convicted, the sample must be destroyed.

State lawmakers first established a DNA database in 1994 that included genetic information from individuals convicted of rape and sexual offenses, expanding the database in 2002 to include all felons. Samples from the arrestees were included in 2009.

In the most recent legislative session, Maryland lawmakers voted to keep the state DNA collection on the books indefinitely.

In a radio interview in early May, Gansler had predicted the Supreme Court would rule 9-0 in favor of Maryland's law, according to a transcript. It is unusual for a Supreme Court justice to read a dissent from the bench and can indicate a deep division among the justices.

Kennedy, Roberts, Stephen Breyer, Samuel Alito and Clarence Thomas made up the majority opinion; Scalia, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan dissented.

Del. Sam Arora, a Montgomery County Democrat who is a member of the House Judiciary Committee, led a bipartisan group of 19 state legislators urging the Supreme Court to review the Court of Appeals ruling and support the state's law.

"Our law has taken rapists and other dangerous offenders off Maryland's streets," Arora said in a statement. "Today's decision upholds a proven tool that catches serial criminals and keeps innocent people out of prison."

Reuters contributed to this article.

jfenton@baltsun.com

Copyright © 2014, The Baltimore Sun
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