Law
6:53 pm
Mon June 3, 2013

Supreme Court Rules DNA Can Be Taken After Arrest

The U.S. Supreme Court ruled Monday that police can routinely take DNA samples from people who are arrested but not yet convicted of a crime, and see if the DNA matches any samples from unsolved crimes in a national database.

The 5-to-4 decision split the court's conservative and liberal blocs, with conservative Justice Antonin Scalia authoring a fiery dissent. Twenty-eight states and the federal government have enacted laws that provide for automatic DNA testing of arrestees.

The court's ruling came in the case of Alonzo King, arrested in Maryland for menacing a crowd with a gun in 2009. Police took a DNA swab from his cheek and sent the DNA to a national database, where it showed a match to a rape six years earlier. King was subsequently tried for and convicted of the rape, but the conviction was thrown out on grounds that there was no warrant and no individualized suspicion that justified taking the DNA sample.

On Monday, the U.S. Supreme Court restored the conviction, comparing such DNA sampling to photographing and fingerprinting suspects when they are booked.

Writing for the five-justice majority, Justice Anthony Kennedy acknowledged that taking a DNA sample is a search, but the Fourth Amendment bars unreasonable searches, he observed, and a "gentle" swabbing of the cheek is not unreasonable. Nor, he said, is it unreasonable to use DNA to ascertain whether the arrestee has a criminal history that would make him a flight risk or a risk to the public if released on bail.

Kennedy noted that Maryland's law provides for automatic DNA testing of arrestees only when they are accused of "serious" crimes, and that the law bars any collection or use of DNA to detect private genetic information. In such circumstances, the court said, DNA collection is a legitimate booking procedure.

Joining Kennedy in the majority were three of the court's conservative justices — Samuel Alito, Clarence Thomas and Chief Justice John Roberts — plus the more liberal justice Stephen Breyer.

A Fiery Dissent

But Scalia, a staunch conservative, in a rare oral dissent from the bench, excoriated the majority. He said the court has never held that the government can conduct general suspicionless searches of anyone it arrests, and by doing so in this opinion, the court, he said, casts aside "a bedrock rule of Fourth Amendment law." Scalia lacerated the court's assertion that the DNA sample was taken to identify King, saying that it "taxes the credulity of the credulous."

"Make no mistake about it," he warned. "Because of today's decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason."

"But the proud men who wrote the charter of our liberties would not have been so eager to open their mouths for royal inspection," he said.

Joining Scalia in dissent were three of the court's liberals — Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

'The Modern Fingerprint'

The dissent notwithstanding, law enforcement was jubilant at the victory. Marcus L. Brown, superintendent of the Maryland State Police, said he expects that the remaining 22 states will now adopt laws like Maryland's.

"I really can't see how other states won't," Brown said. "We view it as sort of the modern fingerprint."

Seconding that view was George Washington University law professor Stephen Saltzburg, author of a leading criminal law text. "Why would you want to be in a state that is unable to run DNA tests on people who are arrested and may have committed serious crimes?"

Both acknowledged, as did others, that the DNA is used as an investigative tool to solve cold cases.

"We can hang on to that DNA," Brown said, "and several years later, when that person commits another violent offense ... we're able to then go back and realize that these serial offenders can now be held accountable for what they've done."

Irv Gornstein, executive director of the Supreme Court Institute at Georgetown University Law Center, called it a "big deal for governments in general that are trying to solve cold cases."

"If the court had gone the other way, it would have significantly restricted the current program that's in effect in the federal government and most of the states," said Gornstein, who spent 29 years in the U.S. Justice Department.

Boston University law professor Tracey Maclin, echoing the spirit of Scalia's dissent, called the notion of using DNA to identify arrestees hard to swallow.

"This is not just searching somebody's purse or knapsack who's been placed under arrest — or even searching their car," Maclin said. "We're searching their person in a situation where we don't have any basis for the search other than the fact that the guy's been arrested."

Gornstein concedes the point, noting that when Alito at oral argument called this case perhaps the most important criminal law case in decades, he wasn't talking about the state needing an additional tool to make bail decisions.

"I think he was quite explicit that there were these rapes and murders that were unsolved and here we have a ready mechanism for solving these crimes," Gornstein said.

George Washington University law professor Orin Kerr, a Fourth Amendment specialist, said the court's decision clears up most of the ambiguity that had existed about taking DNA samples from people at the time of their arrest, but he noted that the court left open some questions.

"The court is talking about serious offenses in this case, but they don't say what counts as a serious offense or whether they'd reach the same result for a nonserious offense. So we just don't know how far this opinion would apply," Kerr said.

Civil libertarians were disappointed by the ruling, but, perhaps because DNA has so often been used to free the innocent, the critiques were relatively muted. As Georgetown's Gornstein put it, the court majority's language, heaping praise on DNA testing for its reliability, "keeps up the momentum" to require the taking and keeping of DNA material in criminal prosecutions.

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Transcript

AUDIE CORNISH, HOST:

From NPR News, this is ALL THINGS CONSIDERED. I'm Audie Cornish.

ROBERT SIEGEL, HOST:

And I'm Robert Siegel.

It is a big week for legal cases, and we begin this hour with several of them. Apple is on trial. Somali pirates are in federal court. And first, we bring you the latest from the Supreme Court.

CORNISH: Today, the justices ruled 5-to-4 on this question: Can law enforcement routinely take DNA samples from people who are arrested, but not convicted of a crime? The answer: yes, when the sole purpose is to check the sample against a national DNA crime scene database.

The ruling will have a broad impact. Twenty-eight states and the federal government have enacted laws that provide for this kind of DNA testing. Here's NPR's legal affairs correspondent Nina Totenberg.

NINA TOTENBERG, BYLINE: When Alonzo King was arrested in Maryland for menacing a crowd with a gun, his cheek was swabbed and the DNA sent to a national database where it showed a match for a rape six years earlier. King was subsequently tried and convicted of the rape, but the conviction was thrown out on grounds that there was no warrant and no individualized suspicion that justified taking the DNA sample.

Today, the U.S. Supreme Court restored the conviction, comparing such DNA sampling to the taking of photos and fingerprints at the time a suspect is booked. Writing for the five-justice majority, Justice Anthony Kennedy acknowledged that taking a DNA sample is a search.

But the Fourth Amendment bars unreasonable searches, he observed, and a gentle swabbing of the cheek is not unreasonable, nor, he said, is it unreasonable to use DNA to ascertain whether the arrestee has a criminal history that would make him a flight risk or a risk to the public if released on bail.

Kennedy noted that Maryland's law provides for automatic DNA testing of arrestees only when they are accused of serious crimes, and that the law bars any collection or use of DNA to detect private genetic information. In such circumstances, the court said, DNA collection is a legitimate booking procedure.

Joining Kennedy in the majority were three of the court's conservative justices: Alito, Thomas and Chief Justice Roberts, plus the more liberal Justice Breyer. But Justice Antonin Scalia, a staunch conservative, delivered a rare oral dissent from the bench, excoriating the majority. In approving a suspicionless search, he said, the court has cast aside a bedrock rule of our Fourth Amendment law.

We have never held that the government is free to conduct general suspicionless searches of anyone it arrests without a warrant. That is a terrifying principle that even the majority does not embrace, instead seeking to portray the DNA sample here as merely an attempt to identify King. That assertion, said Scalia, stretches the credulity of the credulous.

Make no mistake about it, he warned. After today's decision, your DNA can be taken and entered into a national database if you're arrested rightly or wrongly. But the proud men who wrote the charter of our liberties would not have been so eager to open their mouths for royal inspection.

Joining him in dissent were three of the court's liberals: Justices Ginsburg, Sotomayor and Kagan. The dissent notwithstanding, law enforcement was jubilant at the victory. Marcus Brown, superintendent of the Maryland State Police, said he expects the remaining 22 states to now adopt laws like Maryland's.

COLONEL MARCUS BROWN: I really can't see how other states won't. We view it sort of as the modern fingerprint.

TOTENBERG: But he acknowledged, as did others, that the DNA tests are used to solve cold cases. Irv Gornstein, executive director of the Supreme Court Institute at Georgetown Law School, spent 29 years in the Justice Department.

IRV GORNSTEIN: I think it's a big deal for governments in general that are trying to solve cold cases because if the court had gone the other way, it would have significantly restricted the current program that's in effect in the federal government and most of the states.

TOTENBERG: Boston University Law Professor Tracey Maclin called the notion of using DNA to identify arrestees hard to swallow.

TRACEY MACLIN: This is not just searching somebody's purse or knapsack who's been placed under arrest, or even searching their car. But we're searching their person in a situation where we don't have any basis for the search other than the fact that the guy's been arrested.

TOTENBERG: Irv Gornstein concedes the point, noting that when Justice Alito at oral argument called this case perhaps the most important criminal case in decades, he wasn't talking about the state needing an additional tool to make bail decisions.

GORNSTEIN: I think he was quite explicit that there were these rapes and murders that are unsolved, and here we have a ready mechanism for solving these crimes.

TOTENBERG: Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.