GWEN IFILL: Now: a Supreme Court case involving genetic data and privacy rights.
Ray Suarez has the story.
RAY SUAREZ: A man was arrested. The police swabbed his cheek for DNA and connected him to another crime. But did the police cross a line? The state of Maryland argued in court today against Alonzo Jay King Jr. in a case about the Fourth Amendment to the Constitution that bars unreasonable search and seizure.
Marcia Coyle of the National Law Journal was in the courtroom this morning for the arguments, and joins us now.
So, they take their suspect. They give him a cheek swab, as required by Maryland law, submit that to a federal database. How does it end up in front of the Supreme Court?
MARCIA COYLE, The National Law Journal: Well, Mr. King was ultimately convicted of the crime that that swab revealed, a six-year-old unsolved rape crime. And he was indicted, convicted.
He initially at trial moved to suppress the evidence of the first swab because he said it violated the Fourth Amendment. The trial court didn’t agree. But Maryland’s highest court did agree with him and reversed. It was Maryland then that brought the case to the Supreme Court.
RAY SUAREZ: So, they didn’t have a warrant to take the DNA.
MARCIA COYLE: Right.
RAY SUAREZ: And they didn’t consider him a suspect in that six-year-old rape. Were those key questions in today’s arguments?
MARCIA COYLE: Well, yes. Obviously, Ray, we say that the Fourth Amendment protects us from unreasonable searches and seizures.
And the main way that protection is enforced is through a warrant. Well, today, Maryland was arguing that the DNA swab here is not very intrusive. It’s very comparable to fingerprinting, which has been around for almost a century, and also that an arrestee has a reduced expectation of privacy, which is one of the things that the court balances.
It looks at whether there was a reasonable expectation of privacy in the things searched vs. what interest is served for the government in doing this particular search.
RAY SUAREZ: So, if you have been arrested, there’s a difference between taking your DNA and, for instance, locking down a whole block and taking a sample from every man in there?
MARCIA COYLE: Well, Maryland would say yes, because Maryland law has limits on how that DNA is to be used. Maryland argued that it’s used primarily for identification purposes, but it also serves an interest in giving judges more information to make bail decisions. And, yes, it does help solve unsolved crimes.
So, the justices were pushing back a bit at Maryland. Justice Sotomayor did ask, what makes an arrestee a special category that should be exempt from the warrant, that police don’t have to have a warrant? And the United States also had an attorney arguing today. And he said that an arrestee is at the gateway to the criminal justice system. An arrestee is not a free citizen. The arrestee has a reduced expectation of privacy.
And they’re also repeat offenders. The only information at stake, he argued, is the identity of the arrestee. That, of course, didn’t satisfy Mr. King’s attorney, who said that, first of all, DNA sampling is not fingerprinting. Fingerprinting, there’s no intrusion into the body.
And, also with fingerprinting, we really don’t have a legitimate expectation of privacy in our fingerprints. They’re everywhere. He argued that Maryland’s primary purpose here is to solve unsolved crimes.
RAY SUAREZ: What does Maryland do with that evidence if a person is not convicted? Do they keep it on file forever?
MARCIA COYLE: No, they don’t. Maryland law requires that if the person is found innocent, that the DNA sample is destroyed.
RAY SUAREZ: And is that an important distinction in the arguing over this case?
MARCIA COYLE: I think it is important in terms of limits here, but it really didn’t play largely in the arguments.
I mean, the justices were really concerned about how much information could be analyzed from the DNA sample. Chief Justice Roberts brought that up as well. The government’s argument, that it’s limited to identification purposes only, Mr. King’s attorney called that the “trust us” argument, because a lot of information is revealed from a DNA sample.
The chief justice then countered by saying, well, a lot of intimate information is left on a glass from which we drink water. But, still, Mr. King’s attorney said, even though we leave DNA on a glass of water, that still would be a search if the police used that glass in order to test our DNA.
RAY SUAREZ: Instead of being an abstract question about the right to privacy and bodily intrusion and interesting back corners of the Fourth Amendment, this DNA did connect this man to an unsolved rape.
Did that weigh heavily on the arguments that both the state was making for the legitimacy of its policy and his own attorney was making about the admissibility of that evidence?
MARCIA COYLE: Well, it did, in the sense that the police didn’t have any reasonable suspicion or probable cause before they took that first swipe of Mr. King’s mouth.
And that is what we expect under the Fourth Amendment, that they do have reasonable suspicion, probable cause, in order to do the search. But ultimately the justices were looking again for boundaries here to what’s going to be done, how much testing. Some of the justices raised questions that, if you follow the state and the federal government’s argument to its logical end, you may end up testing people — that the police may end up testing people who are stopped on the highway because they want to solve an unsolved crime, so they will take everybody’s DNA.
Justice Sotomayor mentioned that you may even end up testing school children some day. So, really, they were very concerned about limits, about what kind of expectation of privacy we have in our DNA, and how that information is going to be used.
RAY SUAREZ: Are there a lot of states that are looking on with interest because they have laws on the books that are similar to Maryland’s?
MARCIA COYLE: Oh, absolutely, Ray.
There are 28 states that have laws similar to Maryland. And in this particular case, Maryland drew support not just from those 28 states, but every state in the country. Every other state joined in an amicus brief. The federal government has a law similar to Maryland, the District of Columbia and Puerto Rico. So it drew a lot of support from state governments.
It also drew support obviously from law enforcement agencies. Mr. King drew support from some privacy organizations concerned about the long-term implications of collecting DNA information this way, as well as criminal defense organizations.
RAY SUAREZ: This is still a pretty new area of science and law. Has this question ever been tested before the court before?
MARCIA COYLE: I don’t believe, in the Fourth Amendment context, it has.
And, also, Ray, there is a very interesting dynamic across the bench during the arguments. You had, for example, Justice Alito, a very conservative justice, who seems to have no problem with what the police are doing here. In fact, he called DNA collection the 21st century fingerprinting. And you had Justice Scalia, his conservative colleague, saying that sometimes the Fourth Amendment has to stand in the way of what police do.
RAY SUAREZ: Marcia Coyle, thanks a lot.
MARCIA COYLE: My pleasure, Ray.