In late February, the U.S. Supreme Court considered the constitutionality of a Maryland statute that allows the police to take DNA swabs from people arrested for crimes and attempted crimes of violence and burglaries. The question for the Court was whether the intrusion into the privacy interests of those felony arrestees is outweighed by the governmental interests at stake.
The Court’s ruling will affect the practice of the United States and the 28 states that take DNA samples from at least some of their arrestees. It will also implicate the constitutionality of the Katie Sepich Enhanced DNA Collection Act, which became law on January 10, 2013, and provides federal grant funding to states that enact laws providing for the collection of DNA from those arrested for certain felony offenses. The law also calls for the states to adopt procedures to expunge DNA profiles for arrestees if their convictions are overturned or the charges against them are dismissed. Because the Act did not become law until January 10, 2013, it was hardly mentioned in the briefing; the top-side briefs from Maryland and its supporters were due before President Obama signed the bill. Nonetheless, the Court’s ruling will determine whether that grant program can go into effect.
The collection of DNA samples from convicted felons, parolees, and probationers would be unlikely to raise a judicial eyebrow. They have crossed a line which accused felons won’t cross until they are tried and convicted. Even so, those arrested for felonies are different from people on the street.
The government has the right to determine the true identity of a felony arrestee, but has no parallel interest in the identity of members of the general public. To that purpose, arrestees can be searched, photographed, and fingerprinted. They can also be required to speak, provide handwriting and hair samples, disrobe to show tattoos, scars and other distinguishing marks, and participate in a line-up.
In addition, the government can detain arrestees pending trial or impose restraints on their movements and activities if it releases them. To help it make sound decisions on detention or release, the government needs to know not just the identity of the arrestee but also whether he has a criminal record or charges pending. Those arrestees who pose a danger to the community can be detained pending trial.
Maryland and its supporters, including the United States (which takes DNA samples from all arrestees, not just those arrested for certain serious felonies), point to these interests in identifying and deciding how to handle felony arrestees as justification for the taking of DNA samples. While fingerprints and other distinguishing features may make for a good identification, the DNA profile is far more accurate.
That profile comes from a sample that is typically obtained by swabbing the inside of the arrestee’s mouth. Even though the sample contains the full complement of the arrestee’s genetic information, a “vast genetic treasure map” as the Maryland Court of Appeals put it, the profile is generated by looking for the number of times specified DNA sequences repeat at 13 locations in the molecule. According to the United States, those sequences are not linked to known physical or medical characteristics. That profile is then loaded into a nationwide database, which forensic laboratories can search electronically. Maryland and federal law limit the use of the samples to their inclusion in the database, prohibit the misuse of the profile or the genetic information, and specify criminal sanctions for their misuse.
The case before the Court involved a DNA sample taken from Alonzo Jay King, Jr. in 2009 after he was arrested on charges of first- and second-degree assault. His profile matched a sample from a previously unsolved 2003 rape, in which the perpetrator broke into a Maryland home and, holding a gun to the occupant’s head, raped her, so the State obtained a court order compelling the collection of a second swab. A grand jury then charged King with that rape, and he was convicted notwithstanding his argument that the collection of his DNA was an unlawful search.
The Maryland Court of Appeals, with a dissent from two judges, held that the collection of DNA swabs from King violated the Fourth Amendment’s bar to unreasonable searches and seizures. It discounted the State’s interest in correctly identifying King, reasoning that fingerprints were good enough and that the “hit” came after King was already identified. The court rejected King’s attack on the law as a whole, explaining that the State could take a DNA sample from an arrestee without a warrant if “there are conceivable, albeit somewhat unlikely, scenarios where an arrestee may have altered his or her fingerprints or facial features (making difficult or doubtful identification through comparison to earlier fingerprints or photographs on record).…” Otherwise, it declined to “allow warrantless, suspicionless searches of biologic materials without a showing that accurate identification was not possible using ‘traditional’ methods.”
Limiting the government to “traditional” methods of identification is unsound. As Justice Alito asked, “[W]hy isn’t this the fingerprinting of the 21st century?” Saying “No” to DNA sampling would leave the government in the last century. More to the point, using DNA profiles to help make an accurate identification is no more a search than comparing an arrestee’s fingerprints or photograph to those on file.
That said, collecting the sample may be unconstitutionally intrusive, as King argues. It requires the arrestee to open his mouth, but, as Justice Alito observed, taking fingerprints involves the manipulation of the hand and fingers. And, as Chief Justice Roberts asked, what about samples left in interrogation rooms on drinking glasses or cigarette butts? Alternatively, what if future samples can be taken using a piece of adhesive tape on the arm or outer ear? A decision holding that swabbing the arrestee’s mouth is unconstitutionally intrusive could be overtaken by events.
Using the DNA sample to solve cold cases may be the unconstitutional warrantless, suspicionless search the Maryland court refused to permit. But, DNA matches don’t just get bad guys, they can exonerate innocent people who are in prison. Days after the oral argument in the Supreme Court, the Washington Post reported that a Florida man was convicted of a rape that occurred more than 30 years before. DNA evidence collected after he was convicted of a similar offense in Florida in 1999 matched samples recovered from the victim of the 1977 rape. Conversely, last October, a Texas man who served 25 years in prison for allegedly bludgeoning his wife to death was released after DNA evidence not only exonerated him, but also matched a sample to a convicted offender.
Moreover, DNA sampling laws that focus on felony arrestees test a community largely populated with recidivists. A USDOJ study found that 64% of the arrestees in the 75 largest counties in the country had one or more prior felony arrests. And, in 2011, 67% of the federal defendants had at least one prior conviction, and more than 20% had more than five. Felony arrestees and criminal defendants are clearly different from the people on the street.
Judging how the Supreme Court will rule from oral argument is tricky. The transcript suggests that Maryland and King each have their supporters. But, if the Court rules for King, it risks blocking the use of a very accurate way of identifying arrestees and, intentionally or not, overturning the Katie Sepich Act.
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