WASHINGTON — The U.S. Supreme Court will decide later this year whether it is constitutional for police to take DNA from arrested suspects to see if they are linked to unsolved crimes.
On Tuesday, attorney Kannon Shanmugam told the justices that Maryland state police violated Salisbury native Alonzo Jay King’s privacy rights by taking his DNA without a warrant.
King was arrested for assault in 2009, and a DNA sample taken following his arrest matched him to the 2003 rape of a Wicomico County woman, for which he was later convicted. Shanmugam contended that under the Fourth Amendment, which protects citizens against unreasonable searches, the practice of taking DNA from arrestees is unconstitutional.
“The state conducted the search really for the admitted purpose of other crimes and for crimes for which they lacked suspicion,” Shanmugam said after the hearing. “In our view, that is the fundamental constitutional principle that governs this case.”
The court’s ruling could have a nationwide impact. Maryland is one of 28 states that allow police to collect DNA from suspects to see if they are connected to cold cases. The practice has led to 43 convictions in Maryland since the police adopted the test in 2009, and eight of those cases were rape or sexual offenses, according to Maryland Attorney General Doug Gansler.
“I think this is the most important criminal procedures case in decades,” Justice Samuel A. Alito Jr. said.
The justices fired off questions to Shanmugam and to representatives from the state attorney general’s office and the U.S. Department of Justice. The justices questioned how far law enforcement should be permitted to go in searching suspects and their properties if authorities believe they are connected to violent crimes.
“Just because you’re arrested doesn’t mean you lose privacy expectations,” Justice Elena Kagan said. “If it’s just to solve cold cases … then it’s just like searching your house.”
Alito, however, asked Shanmugam what made DNA searches “worse” than fingerprinting. Justice Anthony Kennedy asked whether police have a greater obligation to solve cold cases or rape and murder.
“Lots of murders, lots of rapes that can be solved using this new technology with minimal intrusion of personal privacy,” Alito said.
Shanmugam argued that fingerprinting does not present the same expectation of privacy as DNA swabs, because the genetic code can reveal more personal information about a suspect than fingerprints would, such as medical history.
Outside the courthouse after the meeting, Gansler — who did not testify before the justices — told reporters that DNA swabbing is not invasive and could potentially take violent criminals off of the street.
“When you commit a crime, you can be handcuffed. You can be searched from top to bottom. If you’re in a car, they can search your car. If you’re in a home, they can search your home,” Gansler said. “I say they can touch the inside of your cheek and get your DNA only to determine who you are.”
The Supreme Court has until the end of June to make a decision.