Justices seemed conflicted over whether police have a right to take genetic information from people who have only been arrested without getting a judge's approval first, or if the government's interest in solving cold cases trumped the immediate privacy rights of those under police suspicion of other crimes.
One justice seemed to make clear what he thought. "I think this is perhaps the most important criminal procedure case that this court has heard in decades," said Justice Samuel Alito, a former prosecutor.
"This is what is at stake: Lots of murders, lots of rapes that can be solved using this new technology that involves a very minimal intrusion on personal privacy," Alito said later. "Why isn't this the fingerprinting of the 21st century? What is the difference? If it was permissible, and it's been assumed to be so for decades, that it is permissible to fingerprint anybody who's booked, why is it not permissible to take a DNA sample from anybody who is arrested?"
But Chief Justice John Roberts and Justice Elena Kagan questioned how far the government can go if they decide that the police have an interest in people's DNA to help solve cases, with Roberts noting that it wouldn't take much for police to add DNA swabs to traffic stops. "Police officers who give Breathalyzer tests, they can also take a Q-tip or whatever and get a DNA sample, right?" Roberts said.
"It could be any arrestee, no matter how minor the offense," Kagan said. "It could be just any old person in the street. Why don't we do this for everybody who comes in for a driver's license because it's very effective?"
Getting DNA swabs from criminals is common. All 50 states and the federal government take cheek swabs from convicted criminals to check against federal and state databanks, with the court's blessing. But now 28 states and the federal government now also take samples from people who have been arrested for various crimes, long before their guilt or innocence has been proven.
According to court documents, the FBI's Combined DNA Index System or CODIS—a coordinated system of federal, state and local databases of DNA profiles—contains more than 10 million criminal profiles and 1.1 million profiles of those arrested.
In the case before the court, a 53-year-old woman was raped and robbed but no one was arrested. Almost six years later, Alonzo King was arrested and charged with felony second-degree assault. Taking advantage of a Maryland law that allowed warrantless DNA tests following some felony arrests, police took a cheek swab of King's DNA, which matched a sample from the 2003 Salisbury rape. King was convicted of rape and sentenced to life in prison.
King eventually pleaded guilty to a lesser charge of misdemeanor assault from his arrest, a crime for which Maryland cannot take warrantless DNA samples. The state courts said it violated King's rights for the state to take his DNA based on an arrest alone.
The state Court of Appeals said King had "a sufficiently weighty and reasonable expectation of privacy against warrantless, suspicionless searches."
The Supreme Court is reviewing that decision. The justices will make a decision later this year.
Almost all the justices participated in the spirited back-and-forth with lawyers Tuesday—Justice Clarence Thomas did not say anything, as is his custom. And a decision may not fall along the court's ideological lines—for example, conservative Justice Antonin Scalia seemed at times to concern himself about the program's reach, and the usually liberal-voting Justice Stephen Breyer seemed to think that DNA cheek swabs were no more intrusive than fingerprinting, a position expected more from the court's conservative wing.
King's lawyer, Kannon K. Shanmugam, told the justices there's "legitimate expectation of privacy" in the contents of an individual's DNA. "An individual's DNA contains far more information and far more personal information than an individual's fingerprints," Shanmugam said.
But prosecutors argued that those arrested have less expectations of privacy than people not in police custody. An arrested individual "by virtue of being in that class of individuals whose conduct has led the police to arrest him on, based on probable cause, surrenders a substantial amount of liberty and privacy," said Maryland Chief Deputy Attorney General Katherine Winfree.
In addition to solving cold cases, prosecutors argued that DNA testing is needed to help identify the person in custody, just like fingerprinting—when police make ink impressions of suspects' fingers and compare them quickly to others kept by authorities and found at crime scenes.
With arrested individuals, the government has a compelling interest in "knowing who that person is, which includes knowing what the person has done. And DNA does that in a far more powerful way than fingerprints have done," Justice Department lawyer Michael R. Dreeben said.
If that comparison can be made, "I think that you would have a quite good case," Kagan said.
But Winfree said it currently takes 11-17 days to get results from a DNA swab, making it useless for instant identification. Winfree argued that technology will soon go into use give the police the ability to get results back from DNA swabs within minutes, instead of the days it takes now. But "can I base a decision today on what you say is going to happen in two years?" Roberts said.
"You can't demonstrate that the purpose is immediate identification of the people coming into custody. You just can't demonstrate that now," Scalia said to Winfree. "Maybe you can in two years. The purpose now 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."
Justice Anthony Kennedy, usually a swing vote on the court, compared the DNA swab to police patting a person down after an arrest, something they don't need a warrant to do. "Does the justice system have an interest in knowing whether the person committed other crimes?" he asked Shanmugam several times.
"They have that interest, but if they want to investigate other crimes, they have to do what they would have to do as to an ordinary citizen. They have to have a warrant or some level of individualized suspicion," Shanmugam said.
The case is Maryland v. King, 12-207.