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| This photo taken in April 2009, provided by the Salisbury, Md., Police Department, shows Alonzo Jay King Jr. A narrowly divided Supreme Court ruled Monday that police can collect DNA from people arrested but not convicted of serious crimes, a tool that more than half the states already use to help crack unsolved crimes. |
WASHINGTON
(AP) -- A sharply divided Supreme Court on Monday cleared the way for
police to take a DNA swab from anyone they arrest for a serious crime,
endorsing a practice now followed by more than half the states as well
as the federal government.
The justices differed strikingly on how big a step that was.
"Taking
and analyzing a cheek swab of the arrestee DNA is, like fingerprinting
and photographing, a legitimate police booking procedure that is
reasonable under the Fourth Amendment," Justice Anthony Kennedy wrote
for the court's five-justice majority. The ruling backed a Maryland law
allowing DNA swabbing of people arrested for serious crimes.
But
the four dissenting justices said the court was allowing a major change
in police powers, with conservative Justice Antonin Scalia predicting
the limitation to "serious" crimes would not last.
"Make
no mistake about it: 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," Scalia said in a sharp dissent
which he read aloud in the courtroom. "This will solve some extra
crimes, to be sure. But so would taking your DNA when you fly on an
airplane - surely the TSA must know the `identity' of the flying public.
For that matter, so would taking your children's DNA when they start
public school."
Maryland Attorney General Doug
Gansler agreed that there's nothing stopping his state from expanding
DNA collection from those arrested for serious crimes to those arrested
for lesser ones like shoplifting.
"I don't
advocate expanding the crimes for which you take DNA, but the legal
analysis would be the same," Gansler said. "The reason why Maryland
chooses to only take DNA of violent criminals is that you're more likely
to get a hit on a previous case. Shoplifters don't leave DNA behind,
rapists do, and so you're much more likely to get the hit in a rape
case."
Twenty-eight states and the federal
government now take DNA swabs after arrests. But a Maryland court said
it was illegal for that state to take Alonzo King's DNA without approval
from a judge, ruling that King had "a sufficiently weighty and
reasonable expectation of privacy against warrantless, suspicionless
searches" under the Fourth Amendment to the Constitution.
The
high court's decision reverses that ruling and reinstates King's rape
conviction, which came after police took his DNA during an unrelated
arrest.
Kennedy, who is often considered the
court's swing vote, wrote the decision along with conservative-leaning
Chief Justice John Roberts and Justices Samuel Alito and Clarence
Thomas. They were joined by liberal-leaning Justice Stephen Breyer,
while the dissenters were the conservative-leaning Scalia and liberal
Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.
Kennedy called collecting DNA useful for police in identifying individuals.
"The
use of DNA for identification is no different than matching an
arrestee's face to a wanted poster of a previously unidentified suspect,
or matching tattoos to known gang symbols to reveal a criminal
affiliation, or matching the arrestee's fingerprints to those recovered
from a crime scene," Kennedy said. "DNA is another metric of
identification used to connect the arrestee with his or her public
persona, as reflected in records of his or her actions that are
available to police."
But the American Civil Liberties Union said the court's ruling created "a gaping new exception to the Fourth Amendment."
"The
Fourth Amendment has long been understood to mean that the police
cannot search for evidence of a crime - and all nine justices agreed
that DNA testing is a search - without individualized suspicion," said
Steven R. Shapiro, the group's legal director. "Today's decision
eliminates that crucial safeguard. At the same time, it's important to
recognize that other state laws on DNA testing are even broader than
Maryland's and may present issues that were not resolved by today's
ruling."
Maryland's DNA collection law only
allows police to take DNA from those arrested for serious offenses such
as murder, rape, assault, burglary and other crimes of violence. In his
ruling, Kennedy did not say whether the court's decision was limited to
those crimes, but he did note that other states' DNA collection laws
differ from Maryland's.
Scalia saw that as a
crucial flaw. "If you believe that a DNA search will identify someone
arrested for bank robbery, you must believe that it will identify
someone arrested for running a red light," he said.
Scott
Berkowitz, president and founder of the Rape, Abuse and Incest National
Network, cheered the decision and called DNA collection "a detective's
most valuable tool in solving rape cases."
"We're
very pleased that the court recognized the importance of DNA and
decided that, like fingerprints, it can be collected from arrestees
without violating any privacy rights," he said. "Out of every 100 rapes
in this country, only three rapists will spend a day behind bars. To
make matters worse, rapists tend to be serial criminals, so every one
left on the streets is likely to commit still more attacks. DNA is a
tool we could not afford to lose."
Getting DNA
swabs from criminals is common. All 50 states and the federal
government take cheek swabs from convicted criminals to check against
federal and state databanks, with the court's blessing. The fight at the
Supreme Court was over whether that DNA collection could come before
conviction and without a judge issuing a warrant.
According
to court documents, the FBI's Combined DNA Index System or CODIS - a
coordinated system of federal, state and local databases of DNA profiles
- already contains more than 10 million criminal profiles and 1.1
million profiles of those arrested. According to the FBI, the DNA
samples from people whose charges have been dismissed, who have been
acquitted or against whom no charges have been brought are to be
expunged from the federal system. But states and other municipalities
that collect DNA make their own rules about what happens to their
collections.
In the case before the court, a
53-year-old woman was raped and robbed but no one was arrested. Almost
six years later, Alonzo King was arrested and charged with felony
second-degree assault in a separate case. Relying on the Maryland law
that allows warrantless DNA tests following some felony arrests, police
took a cheek swab of King's DNA, which matched a sample from the 2003
Salisbury rape. King was convicted of rape and sentenced to life in
prison.
King eventually pleaded guilty to a
lesser charge of misdemeanor assault from his arrest, a crime for which
Maryland cannot take warrantless DNA samples. The state court said
King's rights therefore had been violated when the state took his DNA
based on that arrest alone.
Maryland stopped
collecting DNA after that decision, but Roberts allowed police to keep
collecting DNA samples pending the high court's review.
The case is Maryland v. King, 12-207.
