The U.S. Supreme Court upheld Maryland's DNA collection… (KAREN BLEIER / AFP/Getty…)
A divided U.S. Supreme Court ruled Monday that police in Maryland and elsewhere can continue the warrantless collection of DNA from people arrested — but not convicted — of serious crimes.
The 5-4 decision upheld a state law that allows investigators to take genetic information from arrestees, a practice followed by the federal government and about half the states. Police generally compare suspects' DNA to records from other cases in hopes of developing leads.
The case, which amplified a long-running debate over the limits of government search-and-seizure powers, began with a challenge from a Wicomico County man linked to a rape after his DNA was taken in an unrelated arrest.
Justice Anthony Kennedy, writing for the majority, said DNA collection was a legitimate booking procedure akin to fingerprinting and photographing for the purpose of "identifying" suspects.
But in a dissent that aligned some of the court's liberal members with conservative Justice Antonin Scalia, the minority said the court's decision overextends police powers. Scalia quoted Maryland Gov. Martin O'Malley and Attorney General Douglas F. Gansler describing DNA collection as a crime-fighting tool.
"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," Scalia wrote. He took the rare step of reading the statement from the bench.
Gansler called the decision a "resounding victory for law enforcement," and said the court appropriately found there is no difference between taking fingerprints and swabbing a suspect's mouth for DNA, which he called the "21st-century fingerprint."
"In fact you could argue the taking of DNA is less intrusive than fingerprints — at least you don't have ink on your fingers," he said.
Law enforcement is already authorized to handcuff suspects, pat them down, draw blood, and strip-search someone before taking them to a jail cell, he said. "Clearly, they can touch the inside of your cheek and take a DNA swab," Gansler said.
Stephen B. Mercer, chief attorney within the Maryland Public Defender's Forensics Division, said he believes the decision could set the stage for a universal DNA database made up of all citizens.
"All Marylanders who care about their genetic privacy should be alarmed and ready to explore political options," Mercer said.
The American Civil Liberties Union said in a statement that the court's decision "creates a gaping new exception to the Fourth Amendment."
"DNA testing has little to do with identification and everything to do with solving unresolved crimes," said Steven R. Shapiro, the ACLU's national legal director. "While no one disputes the importance of that interest, the Fourth Amendment has long been understood to mean that the police cannot search for evidence of a crime … without individualized suspicion. Today's decision eliminates that crucial safeguard."
Shapiro said some other states have even broader DNA laws than Maryland, and those laws could present issues left unresolved by the ruling.
Alonzo King, who challenged the DNA law in the Wicomico County case, was arrested in 2009 on an assault charge, and his DNA profile was matched to evidence in a 2003 rape case for which he was later convicted.
The case raised questions about whether the Fourth Amendment protected him from having his DNA collected when he had been arrested but not convicted.
The Maryland Court of Appeals had ruled it was illegal for the state to take DNA without approval from a judge, saying King had "a sufficiently weighty and reasonable expectation of privacy against warrantless, suspicionless searches."
Chief Justice John G. Roberts Jr. had authorized Maryland law enforcement to continue collecting the samples until the Supreme Court ruled on the constitutionality of the law.
In the majority opinion, Kennedy said that DNA swabs were taken from people already charged and in custody, and said it was "irrefutable identification of the person from whom it was taken" without constituting evidence of a crime. Linking someone's DNA to a sample in a police database is not alone enough to charge or convict someone of a crime, supporters say.
"A DNA profile is useful to the police because it gives them a form of identification to search the records already in their valid possession," Kennedy wrote.
Scalia blasted the assertion that DNA collection is primarily for identification, saying it "taxes the credulity of the credulous." It took days for authorities to collect King's swab and months to have it entered into a database.
If the process of identifying someone includes finding out what unsolved crimes he or she has committed, Scalia wrote, then it is "indistinguishable from the ordinary law enforcement aims that have never been thought to justify a suspicionless search."