In a Maryland case that's garnered the attention of the other 49 states, the federal Department of Justice and the national science community, the U.S. Supreme Court will hear arguments Tuesday over whether to restrict police in collecting DNA to solve crimes.
The justices will rule on a police practice common in Maryland: taking genetic information from individuals arrested — but not convicted — to link them to unsolved crimes. In the past, the court has acknowledged the power of DNA but has not allowed it to run afoul of fundamental American rights such as the Fourth Amendment's protection against unreasonable searches.
At the center of the case is a Salisbury man, Alonzo Jay King. Police took his DNA when he was arrested in 2009 on assault charges and linked him to the 2003 rape of a Wicomico County woman at gunpoint. King appealed his rape conviction, challenging the key DNA evidence.
The Baltimore-based Office of the Public Defender, which represents King, contends that taking DNA from a person before he or she is convicted of a crime tramples on the constitutional promise to be protected from warrantless searches. Maryland Attorney General Douglas F. Gansler argues that, once arrested for a crime, an individual is not entitled to the same expectation of privacy.
"There is a great deal at stake," Gansler said in an interview. "The use of DNA has really become commonplace in criminal investigations since the O.J. Simpson case.
"Not being able to use DNA would be a significant blow to law enforcement efforts," he said. "When you're using DNA evidence, you know exactly who committed a crime and who didn't."
Colin Starger, a University of Baltimore assistant professor of law, said a defendant, such as King, who has been found guilty of a violent crime doesn't necessarily draw much sympathy.
"It's not about him; it's about much broader concerns," he said.
Starger said allowing police to collect DNA samples in the name of solving crimes opens up the potential for the government's systematic invasion of privacy and the risk of exacerbating inherent racial and socioeconomic inequities in American criminal justice.
African-Americans made up 60 percent of the individuals for whom DNA was stored in Maryland's arrestee database in 2011, but blacks accounted for 30 percent of the population.
In 2011, the last year for which data are available, DNA was taken from more than 10,500 people arrested for committing or attempting to commit a violent crime. Those samples matched evidence for 78 unsolved crimes and led to nine convictions, so far. 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 Maryland, the samples are collected by brushing a cotton swab on the inside of the arrestee's cheek.
Expanding the database was one of Gov. Martin O'Malley's early legislative victories. But last April, the state's highest court, the Court of Appeals, ruled that the practice was unconstitutional. Chief Justice John Roberts granted a stay in July, authorizing law enforcement to collect the samples pending the outcome of the Supreme Court case. After oral arguments Tuesday, it may be months before the court issues an opinion.
Twenty-seven other states and the federal government also can collect DNA samples from individuals arrested for violent crimes. Mitchell Morrissey, district attorney for Denver and an expert on DNA in the criminal justice system, said some of the 22 states without laws authorizing post-arrest DNA collection have held off passing legislation until the Supreme Court clears up the constitutional questions.
About two dozen briefs have been filed for the high court's review, including a 34-page argument written by the California attorney general on behalf of the other 49 states, Washington, D.C., and Puerto Rico in support of the court upholding state laws authorizing the practice.
Briefs were also filed in support of the law by crime victim advocates such as DNA Saves, a group created by the parents of a New Mexico woman who was murdered, the Los Angeles District Attorney, and the U.S. Department of Justice.
Opponents of the practice, including the American Civil Liberties Union, some genetic scientists and the Civil Rights Clinic at Howard University School of Law, filed briefs to caution the high court.
President Barack Obama favors the post-arrest collection of DNA, and the federal government has provided funding to encourage states to collect the genetic data. In January, the president signed a law that provides money for states to start the practice.
"The DNA databases are incredibly powerful, there is no doubt about it," said Starger, whose work with DNA at the Innocence Project helped exonerate individuals imprisoned but not guilty of committing crimes.