Supreme Court: Police Can Take DNA Samples in Arrests.
Justice Anthony Kennedy wrote for the court's 5-4 majority and likened taking DNA samples to fingerprinting. Above, he spoke to California students in March.
WASHINGTON—A divided Supreme Court held Monday that police can take DNA samples from people under arrest in the hope of tying them to unrelated crimes, in a ruling that touched both on fast-changing technology and age-old issues of citizens' rights against state searches.
Authorities previously have been able to take such samples from convicted felons, whom courts consider to possess minimal privacy rights. At issue Monday was whether people who merely have been arrested—and may ultimately be released or acquitted of the charges that led to their arrest—also must submit to a cheek swab that would be matched against a nationwide DNA database of evidence from unsolved crimes.
The Supreme Court says in a closely divided vote that police can take DNA samples from criminal suspects without probable cause. Jess Bravin joins Lunch Break from the high court with details. Video
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That practice, currently followed by 28 states and the federal government, allowed police in Wicomico County, Md., to link Alonzo King, arrested in 2009 for assault with a shotgun, with an unsolved 2003 rape. He later was convicted of the rape and sentenced to life in prison.
The Maryland Court of Appeals, the state's highest court, voided the rape conviction. It held that the state law providing for taking arrestee DNA samples violated the Fourth Amendment, which generally requires police to demonstrate probable cause that an individual has committed a crime before they can search him or her.
While police had probable cause to arrest Mr. King on the assault charge, they had no reason to suspect him of the unrelated rape, and thus the Maryland court found the DNA search unconstitutional.
Monday's 5-4 Supreme Court opinion, by Justice Anthony Kennedy, sided with prosecutors, who have justified DNA sampling as a method to confirm an arrestee's identity as well as an invaluable tool in solving cold cases.
That practice, currently followed by 28 states and the federal government, allowed police in Wicomico County, Md., to link Alonzo King, arrested in 2009 for assault with a shotgun, with an unsolved 2003 rape. He later was convicted of the rape and sentenced to life in prison.
The Maryland Court of Appeals, the state's highest court, voided the rape conviction. It held that the state law providing for taking arrestee DNA samples violated the Fourth Amendment, which generally requires police to demonstrate probable cause that an individual has committed a crime before they can search him or her.
While police had probable cause to arrest Mr. King on the assault charge, they had no reason to suspect him of the unrelated rape, and thus the Maryland court found the DNA search unconstitutional.
Monday's 5-4 Supreme Court opinion, by Justice Anthony Kennedy, sided with prosecutors, who have justified DNA sampling as a method to confirm an arrestee's identity as well as an invaluable tool in solving cold cases.
The ruling comes as the cost of DNA sequencing has fallen and some advocates fear dissemination of DNA information could intrude on privacy or lead to discrimination. In 2008, Congress barred health insurers from using genetic data to raise rates on those found to be susceptible to certain diseases.
Justice Kennedy likened DNA sampling, which is done by swabbing the inside of an arrestee's cheek, to fingerprinting, a long-accepted form of physical identification.
Even though it currently can take months before a DNA match is made, Justice Kennedy wrote that authorities can still benefit from such identification when setting bail or imposing conditions of pretrial release long after the arrestee has entered the criminal-justice process.
"A person who is arrested for one offense but knows that he has yet to answer for some past crime may be more inclined to flee the instant charge," he wrote.
Dissenting Justice Antonin Scalia signaled his frustration by reading his dissent aloud. He likened the DNA law to the "despised" British practice of issuing general warrants in colonial days, authorizing royal officers to conduct blanket searches of the public.
"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," he said.
While Justice Kennedy agreed that DNA sampling constituted a search of an arrestee's body, he said he considered it a minor intrusion. "A swab of this nature does not increase the indignity already attendant to normal incidents of arrest," he wrote.
Justice Kennedy noted several privacy safeguards in the Maryland law, which applies only to those arrested on suspicion of violent crimes or burglary. The samples may not be processed without suspects' consent until they are arraigned, must be destroyed if charges are dismissed or the suspect is acquitted, pardoned or has a conviction reversed on appeal, and can only be used for "identification" purposes.
Justice Kennedy stressed those protections in upholding the Maryland statute. But "if in the future police analyze samples to determine, for instance, an arrestee's predisposition for a particular disease," additional court review could be necessary, he wrote.
Not all DNA collection laws include as many safeguards as Maryland's law, and the ruling left open the possibility of challenges to statutes giving authorities wider leeway in the use of genetic samples.
Chief Justice John Roberts and Justices Clarence Thomas, Stephen Breyer and Samuel Alito joined the majority. Justice Breyer, although generally a liberal vote, has taken a more flexible position on the Constitution's protections for criminal defendants than others on the court's left wing, and his position, like that of seven other justices, seemed evident at oral argument.
The swing vote belonged to Justice Thomas who, as is his custom, said nothing at argument and thus gave no clue to his leanings. In several past criminal procedure cases, he had aligned with Justice Scalia in staking out a firm view of defendants' rights, reflecting what the two conservatives said was the position of the Constitution's framers.
More recently, however, Justice Thomas has been siding with greater police powers, casting Justice Scalia into a minority with liberal Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan .
Justice Scalia contended that because authorities already possessed the power to take DNA samples from those ultimately convicted of crimes, only people who are wrongly arrested or later acquitted will have their privacy violated. He suggested the court had opened the door to wider use of mandatory DNA sampling by government, much as fingerprinting has spread far beyond the precinct house.
"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," he wrote.
