Is being told to open up for an oral swab more intrusive than taking fingerprints?
"I think this is perhaps the most important criminal procedure case that this Court has heard in decades." Justice Samuel Alito said from the bench Wednesday. "This is what is at stake: Lots of murders, lots of rapes that can be -- that can be solved using this new technology that involves a very minimal intrusion on personal privacy. But why isn't this [police DNA sampling] the fingerprinting of the twenty-first century?"
Alito is the Supreme Court's leading criminal-procedure hawk. But equally important, Alito is the Court's leading futurist. Far more than any of his colleagues, he sees the Court's role as peering into the future implications of changes in technology, whether on video games and the First Amendment, the Internet and privacy, or global-positioning systems and police surveillance. Usually he doesn't like what he sees on the horizon; indeed, he is the closest thing the Court has to Suzanne Collins, dystopian author of the Hunger Games trilogy. But DNA sampling, and nationwide databases, apparently hold the rare promise of a brighter tomorrow.
Alito stands out because lawyers and judges don't much like the future; usually we are far more comfortable peering back into the past for guidance and precedent. Chief Justice John G. Roberts sounded very lawyerly indeed Tuesday when he complained about being asked to look even two years ahead. "How can I base a decision today on what you tell me is going to happen in two years?" he asked Katherine Winfree, who was arguing for the state of Maryland. She had forecast that a promised new system will soon allow DNA analysis within 90 minutes of a police sample. "Don't I have to base a decision on what we have today?" Roberts asked.
At issue in Maryland v. King is Maryland's statute permitting police to take a DNA swab from the mouth of any suspect arrested on charges of committing or attempting burglary or a crime of violence. (The samples aren't sent to a database until the suspect is arraigned; if no charges are filed, or the suspect is acquitted, the sample is destroyed.) In April 2009, Alonzo King was arrested by local police in Wicomico County, Maryland, on charges of assault. The state police lab generated a DNA profile from King's DNA swab, and a few months later that profile matched one generated after an unsolved rape six years before.
King was later convicted of the rape. He appealed his conviction, and the Maryland Court of Appeals reversed it, holding that the DNA sample had violated his Fourth Amendment right to be free of "unreasonable searches and seizures."
The stakes in the case are high. Twenty-seven other states, and the federal government, maintain similar DNA databases including swabs from arrestees. At the opening of her argument, Winfree had told the Court that in Maryland alone, the DNA sampling program since 2009 has led to "225 matches, 75 prosecutions, and 42 convictions."
Justice Antonin Scalia interrupted to suggest that "I'll bet you if you conducted a lot of unreasonable searches and seizures, you'd get more convictions too."
The exchange highlighted the issue: should a person arrested for a serious offense expect that, in addition to a photograph and fingerprinting, he or she will be required to open up for an oral swab? If fingerprinting is not a "search," what makes DNA different? Is it the simple fact that suspects have to open their mouths? "I can argue that it is certainly a much lesser intrusion than fingerprints," Justice Stephen Breyer remarked to Kannon K. Shanmugam, arguing for defendant King. Or is it because DNA sampling has an entirely different purpose?
Fingerprints and photos are taken to make sure that an arrested person really is who he or she claims to be, and to make a quick check of the records to see whether there's a criminal history there. Is a DNA sample really a part of the identification procedure? Or is it a free-form investigation of whether the person may have committed some other crime?
If it's part of a "cold case" investigation, then how is it different from going to the arrested person's house and car and searching everything there for evidence of an unrelated crime? The Fourth Amendment doesn't allow a general search of arrestees' homes and cars without a warrant. Justices Elena Kagan and Sonia Sotomayor kept returning to this question.
Here is where the speed of DNA sampling became relevant. Law enforcement seeks the swabs, argued Michael Dreeben, who argued on behalf of the federal government, for two purposes: "crime solution and facilitating the release/custody determination." A suspect whose DNA profile matches an unsolved case would be a much greater danger if granted bail. "That argument only makes sense if we're in your future world where it's 90 minutes, right?" Roberts asked "You are not going to put off the bail hearing for two weeks," while a sample is tested. Dreeben pointed out that even today, when bail is granted, it can later be revoked on new evidence of dangerousness.
In general, DNA sampling seemed to have a lot of fans on the Court. Alito prophesied safer streets and surer justice. Justice Anthony Kennedy repeatedly wondered aloud whether it's really any different than searching a suspect's pockets on arrest. Breyer noted that a DNA database can lead to exonerations as well as convictions. Roberts told Shanmugam that the promise of a 90-minute profile -- which could be part of a bail determination -- might be enough to sway his vote.
Kagan and Sotomayor were politely skeptical. Scalia seemed to be dancing on the delicate cusp between today and tomorrow. "[Y]ou can't demonstrate that the purpose [of sampling] is immediate identification of the people coming into custody," he told Winfree when she rose to rebut. "Maybe you can in two years. The purpose now is -- is the purpose you began your presentation with, to catch the bad guys, which is a good thing. But you know, the Fourth Amendment sometimes stands in the way."