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The Supreme Court hears arguments today that challenge a widespread manner of DNA testing.
WERTHEIMER: Federal law and laws in 28 states provide for automatic DNA testing for anyone arrested but not yet convicted of a crime.
INSKEEP: The case pits that automatic use of modern technology against some notions of personal privacy.
Here's NPR's legal affairs correspondent Nina Totenberg.
NINA TOTENBERG, BYLINE: When Alonzo King was arrested on assault charges in 2009, Maryland police followed the practice dictated by state law. They swabbed his cheek to get a DNA sample, and then submitted the sample to the federal DNA database to see if there were any matches.
The database eventually came up with a hit, matching King's DNA to evidence from a rape six years earlier. A masked man had broken into the home of a 53-year-old woman and raped her while holding a gun to her head. King was subsequently tried for the 2003 rape and sentenced to life in prison.
The conviction was thrown out, however, by the Maryland Court of Appeals. The state court noted that King was presumed innocent and that the DNA was not taken to prove the initial charge against him. Therefore, the court concluded, the DNA collection was nothing more than a state fishing expedition, for anything prosecutors could catch.
Maryland appealed to the U.S. Supreme Court, where the justices will hear arguments today. Representing Alonzo King, Kannon Shanmugam will tell the Court that swabbing people who have not been convicted of a crime, in hopes of finding a match to a different crime, amounts to a dragnet search of the kind the Founding Fathers sought to prevent with the Fourth Amendment.
KANNON SHANMUGAM: The default rule under the Fourth Amendment is that when a search takes place, it has to be supported either by a warrant issued by a magistrate or by some level of individualized suspicion.
TOTENBERG: And neither takes place under the Maryland DNA law, or any other similar law. Indeed, some laws are more far-reaching. Maryland only checks DNA for anyone arrested for a serious crime. But as lawyer Shanmugam points out, the federal law is not limited to those accused of felonies.
SHANMUGAM: As matters currently stand, if you are arrested for any federal offense, including speeding on the GW Parkway, the federal government will, as a matter of course, collect your DNA and prepare a profile and enter it into the federal database.
TOTENBERG: Maryland Attorney General Douglas Gansler counters that regardless, the search is de minimus - that it's negligible, compared to other privacy intrusions when an individual is arrested, even though that person is presumed innocent.
DOUGLAS GANSLER: They're presumed innocent when they're handcuffed. They're presumed innocent when they're strip-searched. And they're presumed innocent when they're sitting in jail awaiting trial. Those are far greater invasions of privacy than touching a Q-tip to the inside of your cheek for a second.
TOTENBERG: Prosecutors and advocates for victims' rights contend there's no difference between DNA testing and fingerprinting.
Jayann Sepich, whose daughter was brutally raped and murdered, has crusaded for more DNA collection laws. It was a DNA match like Alonzo King's that finally brought her daughter's killer to justice three years after the crime.
JAYANN SEPICH: I think it is the fingerprint of the 21st century.
TOTENBERG: And indeed, the comparison with fingerprinting is a big hurdle to overcome for those challenging DNA collection. Defense lawyer Shanmugam will argue today that fingerprinting is different.
SHANMUGAM: Fingerprinting does not involve any intrusion into the body. But separate and apart from that, fingerprinting is used primarily for the purpose of identifying an individual who is in custody, for determining the name and identity of that individual.
TOTENBERG: Moreover, he notes that a complete DNA analysis can reveal a, quote, "treasure trove" of information about an individual's medical and personal history. Allowing the state to have access to that information without a warrant or some individualized suspicion, he says, is like loading an information gun to invade people's privacy.
State Attorney General Gansler sees that argument as nonsense.
GANSLER: There's never been an allegation anywhere that I'm aware of, in the history of the United States, that any police department has ever gone beyond using the DNA solely for identification purposes.
TOTENBERG: Gansler points out that the state law limits DNA testing to the small portion of information that law enforcement uses to match evidence from a crime scene. But defense lawyer Shanmugam calls that argument a "trust us" theory.
Ultimately, law enforcement authorities view DNA as the gold standard in crime detection. The push to add DNA profiles and crime scene DNA to the federal database is fueled by the idea that lives can be saved if serial rapists and murderers can be detected early in their careers and taken off the streets after one or two crimes, instead of a dozen or more.
The odds are that the Supreme Court will agree. The court has already issued a relatively rare order that permits Maryland to continue the testing while the justices consider the case.
Nina Totenberg, NPR News, Washington.
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