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Supreme Court appears split on use of DNA by police

7:01 PM, Feb 26, 2013   |    comments
Supreme Court Associate Justice Samuel Alito called Tuesday's case "the most important criminal procedure case that this court has heard in decades." (Photo: Stephan Savoia, AP)
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WASHINGTON (USA TODAY) - The Supreme Court appeared split down the middle Tuesday on how widely police can use modern DNA technology to solve crimes without violating the privacy of people arrested but not convicted.

The justices agonized over two worthy goals: capturing murderers and rapists whose crimes have gone unsolved, and guarding against government intrusion into individuals' most private genetic data.

Associate Justice Samuel Alito, lauding the potential uses of DNA, called this "the most important criminal procedure case that this court has heard in decades."

MORE: High court's DNA case pits crime solving vs. privacy

Although more than half the states collect DNA from people arrested in felonies and other serious crimes, the practice never has reached the high court before, and the justices seemed genuinely conflicted by both its promise and peril.

Twenty-six states, in conjunction with the federal government, upload the data into a national database in hopes of cracking unsolved crimes. That's what happened to Alonzo Jay King, who was arrested in Maryland for a lesser crime but eventually convicted of a 6-year-old rape after a DNA match.

Much of the hour-long argument in the case of Maryland v. King focused not on the cheek swab that's taken upon arrest but on the current and potential use of that DNA. Though fingerprints generally are used for identification, law enforcement agencies' principal use of DNA is to solve cold cases.

That troubled most of the court's liberal justices but also conservative Justice Antonin Scalia. He wasted no time arguing with Maryland's chief deputy attorney general, Katherine Winfree, about such warrantless, suspicion-free searches.

"The purpose now ... is to catch the bad guys," Scalia said. "Sometimes, the Fourth Amendment stands in the way."

Justice Sonia Sotomayor worried that swabbing for DNA could find its way into the nation's schools and workplaces. Justice Elena Kagan quipped that if its effectiveness is the key, "why don't we do this for anybody who comes in for a driver's license?"

The answer, said U.S. Deputy Solicitor General Michael Dreeben, is that people arrested for serious crimes sacrifice some privacy rights retained by those in school, on the job or at the DMV.

"They are on the gateway into the criminal justice system," Dreeben said. "They are not like free citizens."

On the other side were the court's more conservative justices but also Justice Stephen Breyer, who noted the practice targets those arrested for serious crimes and often can help exonerate people wrongly convicted.

Most convinced about the promise of DNA was Alito, who called it "the fingerprinting of the 21st century." He noted that the criminal justice system has "lots of murders, lots of rapes that can be solved."

The decision could depend on which argument Chief Justice John Roberts finds most persuasive. Among all nine justices, Roberts appeared the most conflicted - even though it was his decision last year that allowed Maryland to continue collecting DNA from people under arrest while the state challenged a lower court ruling.

Roberts punched a hole in the state's argument that DNA helps in determining a person's prior record and the proper bail by noting that it takes weeks if not months to run lab tests. Eventually, he said, the technology will improve so ID can be established in about 90 minutes - but that's a couple of years away.

He voiced concern about how many people could be subjected to DNA swabs and how much private information could be disclosed.

On the other hand, the chief justice contested attorney Kannon Shanmugam's argument that the DNA taken from King represented a substantial breach of privacy. He noted DNA can be retrieved from something as simple as a glass.

"You disclose all of this intimate, private information when you take a drink of water," Roberts said.

The case is likely to be decided by June.

Richard Wolf, USA TODAY

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