Supreme Court questions sides in challenge of Md. DNA law

Maryland's practice of collecting genetic information from people arrested — but not convicted — on serious charges took the national stage Tuesday, as the U.S. Supreme Court weighed in on what Justice Samuel A. Alito Jr. called "perhaps the most important criminal procedure case" in decades.

The four-year-old DNA collection law, overturned by Maryland's top court last year and appealed to the highest level of the federal justice system, drew questions from the justices about where to draw the line on police powers.


Maryland police have used the law to check suspects' genetic information against evidence from unsolved crimes, and it has helped them close 43 cases since it took effect. One of those resulted in a rape conviction against Alonzo Jay King, a Wicomico County man whose challenge to the law is now before the high court.

Lawyers for the state and the U.S. Department of Justice defended the law, arguing that it is analogous to fingerprinting as a way of identifying people taken into custody. Opponents, including King's legal team and the American Civil Liberties Union, focused on whether upholding the law would erode constitutional protections against undue search and seizure.


Investigators have long collected DNA from people convicted of serious crimes. Justice Elena Kagan quickly drew a distinction between the previous law and the state's move to allow the practice upon arrest for violent crimes and burglaries.

"The state does not have the right to go search your house for evidence of unrelated crimes," Kagan said early on in the arguments. "Just because you've been arrested doesn't mean that you lose the privacy expectations … that aren't related to the offense that you've been arrested for."

But Chief Justice John G. Roberts Jr. questioned whether people expected privacy when it comes to their genetic material. Taking a swig of water in a police interview room would lead to DNA's being left behind, he said.

And Justice Stephen G. Breyer suggested that fingerprinting was in some ways a more invasive process than the cheek swab Maryland officials use to collect genetic information. Other data, including fingerprints, could also be abused by law enforcement, he said — perhaps more easily.

"Photos, try photos. My God, you could learn a lot," he said.

The case has implications beyond Maryland, as 28 states and the federal government now take DNA from people arrested on certain charges. The U.S. solicitor general's office joined the Maryland attorney general's office in the oral arguments, and states across the country submitted briefs in support.

The political battle over the law in the state legislature revolved around whether it would discriminate against minorities — who are arrested at higher rates — and was written so that it would expire after five years. The law is up for renewal this year and has the support of Gov. Martin O'Malley.

Takirra Winfield, a spokeswoman for O'Malley, said the governor "hopes the Supreme Court will recognize the value of this tool for fighting violent crime."

Chief Deputy Maryland Attorney General Katherine Winfree opened her presentation before the justices by citing the number of convictions attributed to the law. Of the 43 guilty findings, eight have been for rapes and sex offenses, according to the Governor's Office of Crime Control and Prevention. The majority of the others have been for burglaries and thefts.

"Arrestees do not have a legitimate expectation of privacy in their identity," she said. "We have a legitimate and compelling need to identify suspects and to aid in solving crimes."

Justice Antonin Scalia said the convictions figure "proves absolutely nothing."

"I'll bet you if you conducted a lot of unreasonable searches and seizures, you'd get more convictions, too," he said.


Justice Sonia Sotomayor pursued a similar line of questioning, asking later whether arresting someone gives the police the right to "run rampant" in their lives.

But Alito said the convictions were worthwhile.

"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," he added.

Lawyers for the federal government and Maryland also pursued a separate tack, arguing that taking DNA at the time of arrest can help judges make bail decisions by giving them a fuller view of a suspect's criminal history.

Winfree conceded that it currently takes between 11 and 17 days to analyze DNA, but the information could still be used to modify bail decisions. She added that the FBI estimates that within two years it will be possible for police to analyze DNA profiles within 90 minutes.

"This is not science fiction," she said. "This is the finger printing of the 21st century, but it is better."

Kannon K. Shanmugam, a lawyer for King, who was convicted of a 2003 rape after his DNA was taken a 2009 assault arrest, suggested that the government is really more interested in solving old cases.

He said there have been no instances of bail or other pretrial decisions' being altered since Maryland adopted its new system.

It's also not clear whether under current Maryland law the DNA could be used in that way. The statute says the profile cannot be compared with others in the database until a suspect has been arraigned, which typically happens after an initial bail decision is made.

"If the government were to come back in five years' time with a DNA testing program the primary purpose of which was pretrial supervision or identification … then sure, the analysis would be different," Shanmugam added.

Roberts suggested, though, that it might not be proper for the court to decide based on some future technological standard.

"How can I base a decision today on what you tell me is going to happen in two years?" he asked Winfree. "You say, in two years we will have this rapid DNA available, but we don't now."


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