Supreme Court Considers Link between DNA and Privacy Rights

“Your purpose (for taking DNA from arrestees) is to find bad guys, and that’s good, but sometimes the Fourth Amendment gets in the way.”

by / February 27, 2013
Crime lab photo: AP/Mike Groll AP/Mike Groll

More than half the states allow police officers to collect DNA from criminal suspects before they are convicted of a crime. A Maryland man argued today in the Supreme Court that the practice is a violation of privacy.

In oral arguments in Maryland v. King, the justices seemed skeptical about whether police should be taking routine DNA samples from people arrested for certain crimes for the express purpose of matching DNA to crime scenes, but conceded that solving crimes was an important police function.

“Your purpose (for taking DNA from arrestees) is to find bad guys,” said Justice Antonin Scalia, “and that’s good, but sometimes the Fourth Amendment gets in the way.”

Justice Samuel Alito called the case “the most important criminal justice procedure case in decades.”

The key sticking point centered on when a person has a reasonable expectation of privacy. Katherine Winfree, the chief deputy attorney general of Maryland, argued that arrestees in custody are a specific class of people that have started on the path into the criminal justice system, and therefore have a reduced expectation of privacy.

She also argued that the state only checks the portions of DNA that confirm identity and cross check the sample against crime scene evidence from unsolved crimes.

That reasoning went too far for Kannon Shanmugam, who argued on behalf of Alonzo Jay King, Jr., a Maryland man arrested in 2009 for assault but who was sentenced to life in prison when his DNA from the assault arrest matched crime scene evidence in a six-year-old rape case. Shanmugam argued that it wasn’t until conviction that an offender surrenders his expectations of privacy, and that since police have no reason to suspect that an arrestee has committed another crime, they should have to get a warrant before using DNA analysis to check the crime scene database to find out if an arrestee has committed another offense.

Additionally, Shanmugam argued, there’s a great deal of personal information contained in DNA that is not found in fingerprints, and simply taking the government’s word that they will not search for other information in DNA is simply not good enough.

Currently, 27 states and the federal government have laws allowing police to take DNA from people arrested for felonies and add them to the state and federal DNA databanks, while at the same time searching for matches from other crime scenes. These matches have solved thousands of open rape and murder cases across the country.

But as a harbinger of the argument to come, when Winfree listed off Maryland’s statistics of people convicted based on arrestee DNA analysis, Scalia retorted, “That’s really good, I bet if you conducted a lot of unreasonable search and seizures, you’d get a lot more convictions.”

In briefs filed by all 50 states and local government advocates, states argue they have a compelling interest in creating arrestee databanks, which can save money as well as lives, since the collection of DNA reduces the number of crimes that must be processed by removing regular offenders from the streets. In a 2009 study from Indiana, analysts found that taxpayers spent about $1,836 per crime reported in the state, and an arrestee DNA statute would save the state about $50 million each year in criminal justice costs.

The first arrestee DNA law originated in New Mexico, where 22-year-old graduate student Katie Sepich was raped and murdered in 2002. Katie’s killer wasn’t found for another three years, until his DNA was taken after he was convicted of another violent crime. Katie’s parents, Jayann and David Sepich, successfully advocated for an arrestee DNA statute in New Mexico, and took their campaign nationwide. In January, President Obama signed the Katie Sepich Enhanced DNA Collection Act, which provides grant funding to states to expand their DNA databanks.

An opinion in the case will be announced later this year.

Reprinted courtesy of Stateline, a nonpartisan, nonprofit news service of the Pew Center on the States that provides daily reporting and analysis on trends in state policy.

Maggie Clark, Stateline staff writer staff writer