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Argument recap: Does crime-solving trump privacy?


With Justice Samuel A. Alito, Jr., pronouncing that “this is the most important criminal procedure case this Court has had in decades,” even while letting on that he has no difficulty making up his mind on it, the Supreme Court returned on Tuesday to the idea of how much leeway the Constitution gives police to adopt new technology to solve crimes.  Amid much fretting on the bench about “cold cases” not yet wrapped up, the Justices examined closely whether routine warrantless police sampling of DNA of persons arrested for serious crimes will be allowed.

The fact is that the Justices, hearing Maryland v. King (docket 12-207), were closely divided, in probably unusual alignments — for example, Justice Alito on one side, and Justice Antonin Scalia likely on the other.  Across the bench, the Justices seemed to be at odds on questions such as how much privacy an arrested individual can expect, when a court should give crime-solving superior rank over privacy, and whether the government can be trusted to limit how deeply it pokes into an individual’s entire DNA in a database.

It was not much help to the Justices when all of the lawyers said that it might be easier to decide this case, if the Justices just waited a couple of years to see where DNA sampling technology may go.  At the close, Chief Justice John G. Roberts, Jr., reminded everyone that the Court had a decision to make now.

The deeply contested nature of the case was evident from its opening minute.  Not surprisingly, the state of Maryland’s lawyer, Chief Deputy Attorney General Katherine Winfree of Baltimore, opened with a quick recital of all the convictions prosecutors have won since 2009 as a result of DNA sampling.  It was as if that was the whole case (and, indeed, for some on the bench, it might be).

But Justice Scalia jumped on that argument immediately.  “That is really good,” he said, with heavy sarcasm.  A lot of convictions could be obtained if there were no Fourth Amendment, he said.  Her statistic “proves absolutely nothing.”  Winfree did not relent, countering that her data showed the DNA sampling law “is working.”

Before long, the Chief Justice (who himself had issued an order last summer that Maryland could continue the DNA sampling, while the state appealed) implied that he may have developed some doubts.   Winfree’s argument, he said, was so broad that police could take a DNA sample from “anybody pulled over for a traffic violation.”

Some of the more liberal Justices — especially Elena Kagan — soon began reacting very negatively when Winfree suggested that individuals who had been arrested “surrendered a substantial amount of liberty.”  Kagan suggested that the state’s argument would justify police — seeking to solve a “cold case” — searching an individual’s house, just because that person had been arrested — indeed, perhaps even if an individual had not been arrested, but just showed up to get a driver’s license.

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

At that very point, though, one among the liberals — Justice Stephen G. Breyer — began defending the need for police to solve serious crimes.  “We are not talking about people who drive a car,” or get stopped for a traffic fine, he said.  What Maryland does is take DNA samples only from people taken in for “felonies,” he added.

It was the last comment before Winfree sat down, and the federal government’s lawyer — Deputy Solicitor General Michael R. Dreeben — immediately sought to take advantage of that opening.  Dreeben began with a studied effort to pare down sharply the amount of privacy possessed by arrestees, saying they stood “in the gateway of the criminal justice system,” and so “they are not like free citizens.”

And, before long, the government lawyer was pressing his main alternative argument: DNA sampling, of the kind done in this case, was “like a fingerprint.”  By law, police can’t do anything with it except use it to identify the individual sampled, Dreeben said.  The government, he said, is not seeking to examine “the entire genome” of an arrested individual.

When Justice Kagan noted that fingerprints are read within five minutes, while it may take days to analyze a DNA sample, Justice Breyer immediately said the technology is developing now so that DNA can be read within “as few as two days.”

That was just the opening that Justice Alito was awaiting, and he began an intermittent series of questions that implied that he thought a DNA sample was constitutionally no different from a fingerprint.  Indeed, he would eventually twice use the phrase, that DNA “is the 21st Century fingerprint.”

Before long, Justice Anthony M. Kennedy left the clear impression that he was, like Alito, very much on the side of the police.  He began suggesting exceptions to the Fourth Amendment search warrant requirement that might justify DNA sampling, and asked a series of questions suggesting that, when police have someone in custody, they clearly have a right not only to know who he or she actually is, but anything that could be learned about crimes they may have committed in the past — cold cases, especially.

Kennedy pressed his questions about diminished privacy and the need to solve old crimes most aggressively when Washington attorney Kannon K. Shanmugam was at the lectern, trying to keep the Fourth Amendment intact as a check upon DNA sampling when driven by the purpose of solving cold cases.

Shanmugan also ran into several questions by the Chief Justice about how much privacy an arrestee would really have if, while in custody, the individual had taken a drink of water and left the cup behind, or a cigarette, that could be analyzed for DNA.  That, the lawyer said, was still a search, and Justice Scalia jumped in quickly to reinforce that point.

Shortly afterward was when Justice Alito pushed the dispute up to the top rank of criminal cases before the Court “in decades,” pointing out emphatically that “there are a lot of murders and rapes that can be solved” by this new technology, which only involves a “very minimal” intrusion.  “Why is this not fingerprinting of the 21st Century?” he asked, noting that fingerprinting “has been around for decades.”

When Shanmugan tried to tick off why he deemed DNA sampling to be different, Alito quickly countered that “a urine sample can be analyzed for all kinds of things,” but prior court decisions have made clear that government cannot use such samples for anything other than to determine whether that individual had used drugs.  It was an attempt to bolster Dreeben’s point that the government won’t abuse the DNA sample by using it to examine an arrested individual’s entire DNA profile.

Justice Kagan sought a response from Shanmugam about whether the Court should give the government “a break” on the premise that DNA samples will be able to be read and analyzed very quickly within a few years, perhaps five.  The lawyer said the constitutional analysis might be different then, because a quick interpretation of a DNA sample might enable the government to decide quickly whether an individual should be allowed to go free on bail after being arrested — rather like fingerprinting is today.

Although that sounded like a concession, Shanmugam promptly repeated his argument that whether DNA sampling of arrestees was ever justified depended on whether the police were using it primarily to solve old crimes, instead of simply establishing the identity of a given individual.

Justice Kennedy, however, promptly retorted that establishing “identification” was not limited to knowing who an individual was, but also whether they had committed other crimes in the past — the very crime-solving purpose that Shanmugan was trying to argue was beyond what the Fourth Amendment would allow when police had no warrant and no suspicion of such past crimes.

It seemed that no one was changing any minds, although the Chief Justice was the one member of the Court who seemed to be leaning one way and then the opposite, from question to question.

Recommended Citation: Lyle Denniston, Argument recap: Does crime-solving trump privacy?, SCOTUSblog (Feb. 26, 2013, 2:40 PM),