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Court to take on DNA testing: In Plain English

Just a little over a year ago, the Supreme Court waded tentatively into the intersection of the Fourth Amendment, technology, and privacy in the case of Antoine Jones, a Washington-area nightclub owner.  Without getting a warrant, police put a GPS tracking device on Jones’s car that allowed them to monitor his movements for almost a month, leading to the discovery of large amounts of cash and cocaine.

Jones was sentenced to life in prison, but his case made its way to the Supreme Court, which unanimously agreed with him that the government’s installation and use of the tracking device violated his right under the Fourth Amendment to be free of “unreasonable searches and seizures.”  But the Justices were divided on the reasoning behind that conclusion, leaving open the very real possibility that United States v. Jones represented only the beginning, rather than the end, of the Court’s efforts to grapple with technology such as tracking devices:  after all, as Justice Sotomayor pointed out there, in many cases these days the police might not need to install a tracking device because a suspect’s car or smartphone already has one built in.

The storyline could be much the same on Tuesday, when the Court hears oral arguments in Maryland v. King, a challenge to the constitutionality of a Maryland law that requires anyone arrested for a serious crime to provide a DNA sample, which is then included in a national database.  Under the law, the DNA sample is not analyzed until the arrestee first appears in court, and his DNA records are automatically deleted if he is found not guilty or his conviction is later overturned.   And although the information contained in a DNA profile can be to identify someone, it was specifically chosen because it would not give away that person’s physical or medical characteristics.

The state (supported by the federal government) contends that the DNA database is an important part of its efforts to identify arrestees and solve crimes.  On the other hand, respondent Alonzo King warns that the benefits of the law are overstated, and that it also raises “profound privacy concerns.”


King was charged with assault after he was accused of pointing a shotgun at a group of people in Maryland.  King conceded that he was involved in the incident, and there was no real question about his identity.  On the same day that he was arrested on the assault charges, police officers took his fingerprints and – by swabbing the inside of his cheek – a DNA sample.

King was eventually convicted of the assault charges and was sentenced to four years in jail, with most of that time suspended.  However, when his DNA profile matched evidence from an as-yet-unsolved rape, he was also charged with that crime, convicted, and sentenced to life in prison.

King appealed his sentence, arguing that requiring him to provide a DNA sample violated his rights under the Fourth Amendment.  A Maryland court agreed with him, and so the state asked the Supreme Court to step in.  It did.  On July 30 of last year, Chief Justice John Roberts issued an order that allowed Maryland to continue its DNA collection while the Supreme Court proceedings were underway.  Describing DNA collection as an “an important feature of day-to-day law enforcement practice in approximately half the States and the Federal Government” and a “valuable tool for investigating unsolved crimes and thereby helping to remove violent offenders from the general population,” he also tipped his hand (at least to a certain extent) with his suggestion that “there is a fair prospect that this Court will reverse the decision below.”  And on November 9, the full Court agreed to review the case on the merits.

The arguments

In their briefs, Maryland and the federal government (which filed a “friend-of-the-court” brief supporting the state) contend that a search does not violate the Fourth Amendment as long as it is reasonable – a determination that courts can make by balancing the degree to which the search violates an individual’s privacy against the benefits to the government from the search.  They paint this case as fairly cut and dried, with the balance heavily weighing in favor of the government.

On King’s side of the equation, they contend, “DNA fingerprinting” (a term that they use as part of their efforts to equate DNA collection with the long-established practice of fingerprinting arrestees) has only a very small impact on an individual’s privacy:  it’s just a swab of the inside of the cheek, which we show to others all the time when we eat or yawn.  Like a regular fingerprint, there are no broader privacy concerns involved when police take a DNA sample, which is just a “list of numbers” that doesn’t indicate anything about a person’s appearance or medical condition.  And because law enforcement officials aren’t supposed to look at the “vast genetic treasure map” that could be drawn from a DNA sample, that is all that matters right now for the Court’s purposes in this case.  The Court doesn’t, the governments stress, need to consider all of the future possibilities that could arise as a result of changes in technology.

On the other side of the equation, they regard the government’s interest in obtaining a DNA profile as substantial.  Getting a DNA profile allows for better identification of arrestees, which in turn allows law enforcement officials to know how to charge defendants (who may, for example, have committed other crimes before), whether to let them out on bail pending trial, and how dangerous they might be while in prison.  And, “of course,” they note at the end of their argument, states and the federal government have “an interest in solving crimes.”

Although he won in the lower court using the same balancing test that the state and federal government now espouse, King largely disavows that test in his brief.  Instead, he maintains that, under the Fourth Amendment, a search requires both a warrant and probable cause, neither of which existed in his case:  there was no warrant, and there was no probable cause because the state had not shown that it could use the DNA profile to link him either to the original assault charges or the rape charge.  Moreover, he argues, none of the exceptions that the Court has created to the warrant requirement apply to his case.

King vehemently disputes the state’s efforts to portray the DNA law as useful for identifying arrestees:  unlike fingerprints, he contends, DNA samples aren’t actually very helpful for things like identifying suspects in custody or supervising arrestees because (among other things) of the time that is needed to prepare a DNA profile from a sample.

And even if the “balancing test” used in the lower court were the correct one, King adds, the Court should still rule for him not only because taking the DNA (unlike fingerprinting) involves a physical intrusion into the arrestee’s body, but also because of the broader and “profound privacy concerns” that arise from the DNA collection.  In particular, he emphasizes, even if an arrestee’s DNA profile only contains a limited amount of information, the state still has the original DNA sample – which contains all of the arrestee’s DNA – and could run new tests on it.

These concerns, in his view, far outweigh the government’s interest in collecting the DNA samples.  This is especially true when the government can still get DNA samples from people who are convicted of crimes and when it can show that it would be helpful to link a specific defendant to the crime for which he has been arrested.  What the Fourth Amendment does not allow is a “fishing expedition” whenever someone is arrested.  Indeed, on the state and federal government’s theory, he suggests, law enforcement officials could collect DNA from any group that might be more likely to commit crimes.  The Court, he concludes, “should draw the line here.”

Will the Court keep the focus on the current use of DNA technology, as Maryland and the United States have suggested, or will it instead accept King’s invitation to consider the longer-term implications of a ruling in favor of the government?  Cases like Jones suggest that the Court may be more comfortable dealing only with the narrow issue before it and postponing the knottier technological questions for later, but we will know much more after Tuesday’s argument – which we will come back to discuss in Plain English.

Recommended Citation: Amy Howe, Court to take on DNA testing: In Plain English, SCOTUSblog (Feb. 23, 2013, 3:33 PM),