DNA and the Supreme Court: Your privacy vs. crime solving

Justice Samuel Alito says this is the most important criminal procedure case in decades.  Photo: U.S. Supreme Court heard arguments this week on DNA swabbing AP

WASHINGTON,  March 2, 2013 — The Supreme Court heard arguments this week and will decide, according to Justice Samuel Alito, “ the most important criminal procedure case this Court has had in decades.” Should police be allowed to take a DNA sample from you once you are arrested? The legal issues here involve a balancing of your privacy rights and society’s desire to catch bad guys, and whether we trust the government to self limit its use of our DNA.

The background for this case involves the 2009 arrest of Alonzo King on assault charges. Police, within their rights under Maryland law and following procedures, took a DNA sample by swabbing King’s cheek. The sample was sent to the federal DNA database. A match was found.

Turns out King raped a woman, proven by a match from an old rape kit. He was convicted of breaking into the home of a 53-year-old woman and raping her while holding a gun to her head. King was sentenced to life in prison.

The trial court guilty verdict was over-turned by the Maryland Court of Appeals. The Court indicated the law allowing a DNA test, prior to a conviction, was nothing more than a fishing expedition for anything prosecutors could catch.

Maryland appealed to the U.S. Supreme Court.  So this term, we will learn if it is unconstitutional to take a DNA sample without a warrant, when the sole purpose is to check the DNA against a national crime scene database.

Let us review the arguments. First, there is the privacy vs. crime solving issue.

Justice Roberts issued an order last summer that Maryland could continue DNA sampling while Maryland appealed. In oral arguments, he likened the police taking a DNA swab sample to taking DNA samples from a cup of water left behind or a cigarette. Score one for the police.

Supreme Court Justice Samuel Alito AP

Justice Kennedy has seemingly decided in favor of the police, as evidenced by his statement that when someone is in custody, police have the right to know who that person actually is, and anything else they can learn about crimes that the individual may have committed in the past.

Justice Kennedy correctly believes that many murders and rapes can be solved by this technology and offered that the swab is a “very minimal” intrusion.  Count another vote for the police.

Maryland’s arguments to the Court stressed that the use of the DNA samples is a necessary measure to catch potential rapists and serial murders before they commit their 8th or 9th crime. Maryland’s Attorney General Douglas Gansler said, “… there are far greater invasions of privacy than touching a Q-tip to the inside of your cheek for a second.” 

Privacy arguments draw support under current “default” understanding of the Fourth Amendment (specifically the right against unreasonable searches and seizures). A search has to be authorized either by a magistrate’s warrant or by some degree of particular suspicion (such as an officer seeing drugs on the front seat of your car when you are stopped).

Without a search warrant, the police, generally, are not supposed to be allowed to conduct a search. Swabbing you, all agree, is a search. 

The bigger issue that this case should, but may not, address is that of government restraint. Both the Federal Government and 28 states have laws that provide for automatic DNA collection at the time of their arrest.  This decision will likely affect what states do in the future.

Maryland indicates it only takes DNA samples when individuals arrested have been charged with serious crimes. That assures me… not.

The Federal government has no such self-imposed restraint. If you are speeding and pulled over on a federal highway (in the D.C. area that would be the George Washington Parkway), you are going to get swabbed.

Justice Sotomayor said the issue was “how far we let the state go each time someone is in custody” and posited that if Maryland prevailed, police might be able to advance crime-solving by pursuing anyone under state control, such as school children. Score one for privacy advocates.

Maryland, arguing for the right to swab, claims that today’s DNA sample is equivalent to yesterday’s fingerprinting.  Justice Alito seems to agree with that notion, implying that he thought a DNA sample was constitutionally no different from a fingerprint. Score one for the government.

The government offered a “trust us” argument by noting first that fingerprint testing is only used to identify the individual tested. In support of the restraint chord, I note that despite an abundance of other uses, urine is now tested only to determine if the individual tested had used drugs. 

The “trust” argument then is that DNA samples are now being used only to investigate past unsolved crimes.

A complete DNA analysis, however, can reveal extensive information about your medical and personal history. I for one do not trust anyone that has that much information about me, particularly a government.

Genes, unlike fingerprints, contain information about your racial and ethnic heritage, disease susceptibility, and even behavioral propensities. Taking a DNA sample is simply not the same as taking a fingerprint. DNA samples may be used for identification purposes, but the DNA itself represents far more than a fingerprint. 

Thus far, there seems to be a limit on what the government does with DNA samples.  Searches are limited to connecting you to past crimes. What would stop the government from expanding that search and going through an entire local database to solve a crime by looking at racial or genetic stereotypes? Without limits, a door is being opened that could lead to outrageous applications.

It appears the Supreme Court is going to find in favor of the crime-catching view, limiting our privacy rights, and that they will reinstate King’s guilty verdict.

I want bad guys caught and punished. I believe that King should serve the life sentence he was given at the trial court level. I do not believe taking a DNA sample from someone arrested for a serious crime should be barred. I am afraid, however, of over-use by the government. 

I hope that the Court provides guidelines that limit the use of DNA sampling such that it cannot be done, as the Federal Government now allows, for anyone in custody. I hope it further limits the use of the DNA information and indicates it can only be used individually to look for past crimes. Justice Alito’s prediction about the impact of this case is spot on.

Paul A. Samakow is an attorney licensed in Maryland and Virginia, and has been practicing since 1980.  He represents injury victims and routinely battles insurance companies and big businesses that will not accept full responsibility for the harms and losses they cause. He can be reached at any time by calling 1-866-SAMAKOW (1-866-726-2569), via email, or through his website. He is also available to speak to your group on numerous legal topics.  Paul is the featured legal analyst on the Washington Times Radio, in Washington, D.C., on the Andy Parks show, the featured legal analyst for America’s Radio News Network, heard in 165 markets nationwide, and he is a columnist on the Washington Times Communities.

His book “The 8 Critical Things Your Auto Accident Attorney Won’t Tell You” is free to Maryland and Virginia residents and can be obtained by ordering it on his website; others can obtain it on Amazon.


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Paul Samakow

Attorney Paul Samakow brings his legal expertise to the headlines from life and real-life experience to The Washington Times Communties. A native Washingtonian, Samakow has been a Plaintiff’s trial lawyer since 1980, with offices in Maryland and Virginia. 

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