GWEN IFILL: The Supreme Court today found police can collect DNA from people they arrest, equating the procedure to standard practices such as fingerprinting. The ruling was 5-4, but not your usual 5-4.
Joining us to explain the reasoning behind and the impact of the decision is Marcia Coyle of The National Law Journal. As always, she was in the courtroom today.
So start by describing to me the circumstances of the arrest of one Alonzo King.
MARCIA COYLE, National Law Journal: All right.
Mr. King was arrested in 2009 on assault charges. While he was being booked, police took a DNA swab of his cheek and sent that out for analysis. That’s allowed under Maryland law, which says if you are arrested, but not yet convicted, of a serious crime, you can take the DNA sample.
Several months later, there was a match between his DNA and evidence in an unsolved 2003 rape. He was charged with the rape, convicted, sentenced to life. Maryland’s highest court reversed his conviction, finding that the Maryland DNA collection law violated the Fourth Amendment.
GWEN IFILL: But they were arguing that fingerprinting, swabbing of the cheek same sort of thing.
MARCIA COYLE: Well, that came in the decision. The state of Maryland brought an appeal to the U.S. Supreme Court.
And today the court in dividing 5-4 analyzed the law under the Fourth Amendment, which, as you know, protects us from unreasonable searches and seizures.
GWEN IFILL: And they said this was a reasonable search.
MARCIA COYLE: Yes. Justice Kennedy said reasonableness is the touchstone of the Fourth Amendment.
And, here, someone who is arrested has a lowered expectation of privacy, and the DNA swab of the cheek is a minimal intrusion, and both are really outweighed by law enforcement’s legitimate interest in safe and accurate identification of people arrested.
That’s why he compared it to fingerprinting. Does the same thing. He compared it also to matching an arrestee’s face to a wanted poster — face on a wanted poster. He also said that the DNA analysis was important to ensuring the safety of the public, as well as the safety of staff and other detainees in a facility that would also be used to make decisions about bail and the risk to the public.
He said there is a limit in the Maryland law, and that is, it’s only done if you have been arrested for serious crimes.
GWEN IFILL: Five to four. We have had these conversations before about a 5-4 split in the court.
MARCIA COYLE: Yes.
GWEN IFILL: But it’s usually pretty predictable who is five and who is four. Not today.
MARCIA COYLE: No.
Justice Scalia led the dissenters. And he was joined by Justices Ginsburg, Sotomayor and Kagan, which you don’t see that often. The Fourth Amendment cases tend to bring out Justice Scalia’s libertarian streak. He’s written before about how important it is to have warrants or individualized suspicion.
He said what the court was claiming here, that the DNA swab was really for identification purposes, was basically a smokescreen for what law enforcement really wants to do, and that’s to solve unsolved crimes.
GWEN IFILL: Which is what happened in this case.
MARCIA COYLE: Absolutely. He said that’s a noble goal, but the court, he said, has never suspended the individualized suspicion that would tie a person to a particular crime for an investigative purpose.
The court has done that in a very few number of cases, like you don’t need suspicion to drug-test rail workers. There, the motive is safety.
GWEN IFILL: Now, this outcome could have been different if the reliable four so-called liberal justices had stayed together, but Justice Breyer went the other way.
MARCIA COYLE: Yes, he did.
And Justice Breyer is known for a very pragmatic approach to constitutional interpretation. And I don’t know — he didn’t write separately, so I don’t know what his reasons were, but I suspect since he joined in full Justice Kennedy’s opinion, as did the other conservatives on the court, that he accepted the reasonableness of what police were doing here.
GWEN IFILL: Was there any discussion about whether there was concern about whether this DNA information could be misused?
MARCIA COYLE: Yes.
Justice Kennedy said that the Maryland law made clear that it was only for identification purposes that you are not getting the individual’s total genetic profile.
GWEN IFILL: Exactly.
MARCIA COYLE: Right. But he did say that this is a new technology and that other states’ laws may raise other questions that have to be answered down the road.
That wasn’t sufficient for Justice Scalia. He said, if he followed the logic of the majority’s opinion, then you will be able to swab somebody’s cheek whenever they’re arrested for whatever crime.
GWEN IFILL: Not whenever you’re stopped. So, if you’re pulled over by the side of the road and under suspicion of having done something, they can’t swab you at the side of the road; you have to be under arrest, in custody?
MARCIA COYLE: Well, if you are arrested or if you are stopped by police on the road, the police can do a search incident to an arrest, or they can — if they have probable cause to believe that you have committed a crime, they are usually required to get a warrant. But they also can search if they are concerned that their safety is at risk.
So it’s a totally different situation. Here, somebody was under arrest, wasn’t convicted. And the law allowed the DNA swab.
GWEN IFILL: Are there any states besides Maryland which has a law like this?
MARCIA COYLE: Yes, 28 states and the federal government have laws. They’re not all the same. And it may well be the court’s decision today will encourage other states to pass similar laws.
GWEN IFILL: Very interesting, Marcia Coyle, as always. I know you’re bracing for the rest of this very busy month at the court.
MARCIA COYLE: I am — a very, very big month.
GWEN IFILL: Thank you.
MARCIA COYLE: My pleasure.