Can police collect DNA before conviction? Supreme Court to hear case.

Many states allow police to collect DNA samples from people who have been arrested. But others see that as a violation of the Fourth Amendment. Now, the Supreme Court will step in.

The US Supreme Court on Friday agreed to take up a case examining whether the Fourth Amendment permits police to collect and analyze a person’s DNA at the time of arrest or whether they have to wait until after the suspect has been convicted to take a DNA sample.

The case raises the thorny issue of when the government is allowed to collect a DNA sample from an individual and store it in a national database.

DNA information has become a major crime-fighting tool, providing a significantly more accurate method of identifying individuals than the subjective art of fingerprint comparisons. DNA data have helped police solve crimes and have also helped defense lawyers identify and correct wrongful convictions.

But unlike fingerprints, DNA material can reveal far more about an individual, including details that most people consider highly personal and private.

Nonetheless, law enforcement officials insist that they are interested in using DNA technology only for identification, as a kind of enhanced form of fingerprinting.

The issue arises in the case of Alonzo King, who was arrested in southern Maryland in 2009 on an assault charge.

As part of his processing by police, officers used a swab to collect a sample of his saliva from his cheek. The sample yielded an identifying DNA profile which was fed into a national database.

Mr. King’s DNA profile was found to match the DNA profile of the person who robbed and raped a woman in the same area of southern Maryland in 2003.

Armed with that information, authorities applied for a search warrant and obtained a second swab of King’s cheek. The second sample also matched the DNA evidence from the 2003 rape. King was charged with the rape and robbery.

Prior to the trial, his lawyer moved to invalidate the use of the DNA evidence because it allegedly violated King’s Fourth Amendment right to be free from unreasonable searches and seizures. The judge denied the motion. King was convicted of first-degree rape and sentenced to life in prison.

His lawyer appealed and the Maryland Court of Appeals reversed the conviction. In a 5-to-2 vote, the court said that the initial collection of King’s DNA at the time of his arrest violated his Fourth Amendment rights.

The Maryland court said that even though King was in police custody following his arrest, he nonetheless had an “expectation of privacy to be free from warrantless searches of his biological material and all of the information contained within that material.”

Prosecutors defended the taking of a DNA sample at the time of arrest as similar to taking a suspect’s fingerprints and feeding the prints into a national database. If the prints linked the suspect to another crime, police would be entitled to use that information as evidence against the suspect.

The Maryland court disagreed. It said there is a difference between a DNA sample and a fingerprint. DNA samples contain a massive amount of personal information about a suspect – well beyond identifying the suspect. “We cannot turn a blind eye to the vast genetic treasure map that remains in the DNA sample retained by the state,” the court said.

The Maryland judges said it would be like the state seizing a person’s private medical records without a warrant and pledging to only use that portion of the records the might help identify the patient.

The majority judges concluded that the state could not take a DNA sample at the time of arrest, but must wait until the suspect had been convicted.

Maryland officials asked the judges to stay their decision, pending further appeal. They refused. The officials then took their request for a stay to US Supreme Court Chief Justice John Roberts, who granted it.

In its action on Friday, the Supreme Court agreed to hear the underlying case.

All 50 states and the federal government have laws authorizing the collection of DNA from convicted individuals. In contrast, 27 states and the federal government have laws permitting DNA collection from arrestees.

“States have been collecting DNA from arrestees since 1999. Nearly 14 years later, the constitutionality of these statutes should be clarified,” Assistant Maryland Attorney General Brian Kleinbord wrote in his brief urging the high court to take the case.

King’s lawyers acknowledged that the case raised “indisputably substantial issues concerning the privacy implications of the government’s collection and analysis of DNA.” But they said the justices should allow other cases to emerge and be resolved in the lower courts before they weigh in.

“The science and technology behind DNA analysis continue to evolve rapidly, and the legal landscape is also shifting as officials develop new uses of DNA analysis and refine the governing laws in an effort to strike an appropriate balance between law-enforcement and privacy interests,” Washington lawyer Kannon Shanmugam wrote in his brief. He said the court should allow the issue to continue “percolating” in the lower courts.

Maryland’s Mr. Kleinbord insisted the time was right for high court review.

He said five state courts and five federal courts have considered the issue in the past seven years. Five upheld DNA samples from arrestees, five others did not.

“Ten cases in seven years, in a variety of state and federal courts, resulting in an even split in outcomes, is not ‘percolation,’ " Kleinbord wrote. “It is disarray.”

“Criminal suspects, prosecutors, and the lower courts require clarity and uniformity in the application of the Fourth Amendment to the use of DNA for identification purposes,” he said.

“The forensic application of DNA science has been in common use longer than GPS devices, the Internet, and cellphones,” Kleinbord added.

The case is Maryland v. King (12-207). It will be set for oral argument in February, March, or April, with a decision expected by late June.

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