Supreme Court Rules DNA Can Be Taken After Arrest The court ruled Monday that police can routinely take DNA samples from people who are arrested but not yet convicted of a crime. The ruling compared DNA sampling to photographing and fingerprinting suspects when they are booked.


Supreme Court Rules DNA Can Be Taken After Arrest

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From NPR News, this is ALL THINGS CONSIDERED. I'm Audie Cornish.


And I'm Robert Siegel.

It is a big week for legal cases, and we begin this hour with several of them. Apple is on trial. Somali pirates are in federal court. And first, we bring you the latest from the Supreme Court.

CORNISH: Today, the justices ruled 5-to-4 on this question: Can law enforcement routinely take DNA samples from people who are arrested, but not convicted of a crime? The answer: yes, when the sole purpose is to check the sample against a national DNA crime scene database.

The ruling will have a broad impact. Twenty-eight states and the federal government have enacted laws that provide for this kind of DNA testing. Here's NPR's legal affairs correspondent Nina Totenberg.

NINA TOTENBERG, BYLINE: When Alonzo King was arrested in Maryland for menacing a crowd with a gun, his cheek was swabbed and the DNA sent to a national database where it showed a match for a rape six years earlier. King was subsequently tried and convicted of the rape, but the conviction was thrown out on grounds that there was no warrant and no individualized suspicion that justified taking the DNA sample.

Today, the U.S. Supreme Court restored the conviction, comparing such DNA sampling to the taking of photos and fingerprints at the time a suspect is booked. Writing for the five-justice majority, Justice Anthony Kennedy acknowledged that taking a DNA sample is a search.

But the Fourth Amendment bars unreasonable searches, he observed, and a gentle swabbing of the cheek is not unreasonable, nor, he said, is it unreasonable to use DNA to ascertain whether the arrestee has a criminal history that would make him a flight risk or a risk to the public if released on bail.

Kennedy noted that Maryland's law provides for automatic DNA testing of arrestees only when they are accused of serious crimes, and that the law bars any collection or use of DNA to detect private genetic information. In such circumstances, the court said, DNA collection is a legitimate booking procedure.

Joining Kennedy in the majority were three of the court's conservative justices: Alito, Thomas and Chief Justice Roberts, plus the more liberal Justice Breyer. But Justice Antonin Scalia, a staunch conservative, delivered a rare oral dissent from the bench, excoriating the majority. In approving a suspicionless search, he said, the court has cast aside a bedrock rule of our Fourth Amendment law.

We have never held that the government is free to conduct general suspicionless searches of anyone it arrests without a warrant. That is a terrifying principle that even the majority does not embrace, instead seeking to portray the DNA sample here as merely an attempt to identify King. That assertion, said Scalia, stretches the credulity of the credulous.

Make no mistake about it, he warned. After today's decision, your DNA can be taken and entered into a national database if you're arrested rightly or wrongly. But the proud men who wrote the charter of our liberties would not have been so eager to open their mouths for royal inspection.

Joining him in dissent were three of the court's liberals: Justices Ginsburg, Sotomayor and Kagan. The dissent notwithstanding, law enforcement was jubilant at the victory. Marcus Brown, superintendent of the Maryland State Police, said he expects the remaining 22 states to now adopt laws like Maryland's.

COLONEL MARCUS BROWN: I really can't see how other states won't. We view it sort of as the modern fingerprint.

TOTENBERG: But he acknowledged, as did others, that the DNA tests are used to solve cold cases. Irv Gornstein, executive director of the Supreme Court Institute at Georgetown Law School, spent 29 years in the Justice Department.

IRV GORNSTEIN: I think it's a big deal for governments in general that are trying to solve cold cases because if the court had gone the other way, it would have significantly restricted the current program that's in effect in the federal government and most of the states.

TOTENBERG: Boston University Law Professor Tracey Maclin called the notion of using DNA to identify arrestees hard to swallow.

TRACEY MACLIN: This is not just searching somebody's purse or knapsack who's been placed under arrest, or even searching their car. But we're searching their person in a situation where we don't have any basis for the search other than the fact that the guy's been arrested.

TOTENBERG: Irv Gornstein concedes the point, noting that when Justice Alito at oral argument called this case perhaps the most important criminal case in decades, he wasn't talking about the state needing an additional tool to make bail decisions.

GORNSTEIN: I think he was quite explicit that there were these rapes and murders that are unsolved, and here we have a ready mechanism for solving these crimes.

TOTENBERG: Nina Totenberg, NPR News, Washington.

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