Justices review DNA collection

High court takes up constitutionality of sampling upon arrest

— The Supreme Court considered on Tuesday the constitutionality of as many as 29 state and federal laws that allow the collection of DNA samples when a person is arrested.

In an hour-long argument, the justices debated whether the constitutional ban on unreasonable searches requires officials to wait until a person is convicted.

The session produced no consensus beyond Justice Samuel Alito’s characterization of it as “perhaps the most important criminal procedure case that this court has heard in decades.” The ruling in the Maryland case will be the court’s first on the privacy of genetic information and may have implications for other cutting-edge police techniques in the future.

Several justices, including Stephen Breyer and Antonin Scalia, suggested they may cross the ideological lines that often divide the court. Scalia signaled his skepticism toward Maryland’s collection program immediately, scoffing when the state’s lawyer opened her argument by touting the 225 matches and 42 convictions the state had secured.

“I’ll bet you if you conducted a lot of unreasonable searches and seizures, you’d get more convictions, too,” Scalia said. “That proves absolutely nothing.”

Breyer pointed to the usefulness of DNA, saying court filings by outside groups described “case after case” where samples from arrested people had helped exonerate someone who had been wrongfully convicted.

Compared with fingerprints, “it’s much more accurate, and that doesn’t just help the defendant,” Breyer said.

The court is considering the case of Alonzo King, who was arrested in Maryland for assault in 2009 and was linked through his DNA to an unsolved 2003 rape. President Barack Obama’s administration is backing Maryland in the case.

Until 2008, Maryland collected DNA samples only from people who were convicted of a felony. The state amended its law in 2008 to include anyone arrested for a crime of violence or burglary.

After taking a sample, Maryland ships it to a laboratory to create a profile - a string of numbers almost always unique to that person. The state then submitsthe profile to CODIS, a national database maintained by the FBI. The database allows comparison of the new profile to unknown DNA on file.

Maryland’s highest court threw out King’s rape conviction last year, saying the state had violated the Fourth Amendment. The court pointed to the “vast genetic treasure map” the state would be acquiring for each person arrested.

Maryland’s chief deputy attorney general, Katherine Winfree, argued that arrested people have a “reduced expectation of privacy.” The state also points to safeguards in the law, including requirements that samples be destroyed, with the records expunged, if a judge throws out the charges or the person is acquitted.

Winfree drew resistance from Chief Justice John Roberts, who said her argument would apply equally to “anybody pulled over for a traffic violation.”

Justice Elena Kagan similarly questioned whether the state’s position had a logical stopping point, saying Maryland’s argument would let it search the house or car of anyone arrested in the hope of finding evidence of an unrelated crime.

“Just because you’ve been arrested doesn’t mean that you lose the privacy expectations in things you have that aren’t related to the offense that you’ve been arrested for,” Kagan said.

Michael Dreeben, a Justice Department lawyer, said DNA collection was little different from fingerprinting - a practice that is now routine procedure at intake centers, even though the Supreme Court has never ruled on its constitutionality.

He drew support from Alito, who called DNA collection the “fingerprinting of the 21st century.”

Justice Anthony Kennedy asked King’s lawyer, Kannon Shanmugam, to acknowledge that Maryland had a “legitimate interest” in discovering whether King could be connected to any unsolved crimes.

Shanmugam argued that while the state does have an interest in solving crimes, it can’t short-circuit the usual requirement that police havereason to suspect a particular person before conducting a search.

“It is settled law that warrantless, suspicionless searches are presumptively unconstitutional,” Shanmugam argued.

The case, which the court will decide by June, is Maryland v. King, 12-207.

In other business, the Supreme Court, in a 5-4 decision, turned back a challenge to a federal law that authorized intercepting international communications involving Americans.

Writing for the majority, Alito said that the journalists, lawyers and human-rights advocates who challenged the constitutionality of the law could not show they had been harmed by it and so lacked standing to sue. Their fear that they would be subject to surveillance in the future was too speculative to establishstanding, he wrote.

Roberts and Justices Scalia, Kennedy and Clarence Thomas joined the majority opinion in Clapper v. Amnesty International, No. 11-1025.

In dissent, Breyer wrote that the harm claimed by theplaintiffs was not speculative. Justices Ruth Bader Ginsburg, Sonia Sotomayor and Kagan joined his dissenting opinion.

Information for this article was contributed by Greg Stohr of Bloomberg News and by Adam Liptak of The New York Times.

Front Section, Pages 2 on 02/27/2013

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