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Supreme Court Balances Privacy Rights Against Law Enforcement in DNA Collection Case

Fourth Amendment Privacy
Maryland v. King By Kathleen McGuinness – Edited by Pio Szamel Maryland v. King, No. 12-207 (U.S. Feb. 26, 2013) Transcript of Oral Argument [caption id="attachment_3080" align="alignleft" width="150"] Photo By: - CC BY 2.0[/caption] On Tuesday, the Supreme Court heard oral arguments in Maryland v. King, a challenge to the constitutionality of warrantless DNA sampling of persons arrested for serious crimes. Throughout the hour-long argument, the justices repeatedly jumped in with probing questions over the government’s motivations, the expectations of privacy in DNA, and the future of DNA analysis in law enforcement. If the policy is found to be unconstitutional, twenty-eight other states and the federal government face potential invalidation of similar laws. SCOTUSBlog, Bloomberg, and ABC News have further coverage. SCOTUSblog also has information about the case’s background and pre-argument predictions. A more detailed analysis of the case is available from the Legal Information Institute. One major issue at stake is the efficacy of the government’s DNA sampling program, and the purpose it serves in the justice system. Arguing for the State of Maryland, Katherine Winfree emphasized the program’s success in identifying perpetrators of unsolved crimes through DNA matches. However, several of the justices expressed concern over the use of sampling as a crime-solving tool rather than for purposes of identification or to accurately set bail, Maryland’s other two proffered rationales. Justice Scalia quipped that “if [the State] conducted a lot of unreasonable searches and seizures, [they’d] get more convictions, too.” Tr. of Oral Arg. at 3. Justices Roberts and Scalia also expressed skepticism toward the State’s identification and bail-determination rationales because of the long period of time required for DNA testing, on the order of several months, and expressed discomfort over deciding the issue based on faster DNA comparison technology that might become available in the future. Id. at 59. However, Roberts did suggest that his ultimate opinion of the practice’s constitutionality might be tied to the development of future technology, if it made identification and bail determinations a primary motivation behind DNA sampling programs in the future. Id. at 42. When discussing the technology’s potential role in identification, on the other hand, the court had difficult questions for King’s position. Justice Alito asked at one point why DNA profiling was not merely “the fingerprinting of the 21st century.” Id. at 35. When Justice Kagan asked whether a future DNA sampling system would be constitutional if designed primarily for identification,  even if it also happened to reveal criminal history for sentencing purposes, King’s attorney admitted that such a system might be constitutionally permissible. However, he pointed to the government’s clear crime-solving goals in the current case as an impermissible motivation, and contrasted the privacy concerns involved in DNA collection with existing forms of identification data such as fingerprints. He argued, further, that the government retains a copy of extensive genetic information even though it doesn’t currently use the full information available in the sample, and criticized the current practice as a “just trust us” government policy. Id. at 53. Both sides argued the extent to which privacy rights were implicated in the decision, and the justices had difficult questions for all attorneys.  Breyer challenged the conclusion that the DNA testing process was more invasive than fingerprinting, characterizing the process as “no more intrusive” and “much more accurate.” Id. at 37. Justices Kagan and Sotomayor questioned Maryland’s attorney on the State’s identification of some boundary between collecting DNA and other forms of search, and the difference in justification for taking DNA from felony arrestees and swabbing anyone stopped for a traffic violation if crime-solving were a major goal. Id. at 10–11. The decision in King may have sweeping implications for the use of DNA in law enforcement—and not only for the thirty existing pre-conviction DNA sampling programs. Justice Alito said that King “is perhaps the most important criminal procedure case that this Court has heard in decades.” Id. at 34. As the technology for processing DNA becomes faster and more ubiquitous, the decision in King may direct the future development of a major field in forensic technology.