WASHINGTON -- A divided Supreme Court ruled Monday that police may take DNA samples when booking those arrested for serious crimes, narrowly upholding a Maryland law and opening the door to more widespread law enforcement collection of DNA.
The court ruled, 5-4, that government has a legitimate interest in collecting DNA from arrestees, just as it takes photographs and collects fingerprints.
Rejecting the view that the practice constitutes an unlawful search, the majority said it was justified to establish the identity of a person in custody. "DNA identification represents an important advance in the techniques used by law enforcement to serve legitimate police concerns for as long as there have been arrests," Justice Anthony M. Kennedy wrote for the majority.
The decision will reinstate Alonzo Jay King Jr.'s conviction in a 2003 rape in Salisbury on Maryland's Eastern Shore. He was tied to the crime after a DNA sample was taken following an unrelated 2009 assault arrest.
Law enforcement has found DNA to be a powerful tool in solving cold cases, and the federal government and 28 states allow the practice.
As with other recent court decisions involving the Fourth Amendment's "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," the justices split in an unusual fashion. The dissenters were three of the court's liberals plus conservative Justice Antonin Scalia, who amplified his displeasure by reading a summary of his dissent from the bench.
"The court has cast aside a bedrock rule of our Fourth Amendment law: that the government may not search its citizens for evidence of crime unless there is a reasonable cause to believe that such evidence will be found," Justice Scalia said from the bench.
In his dissent, Justice Scalia wrote that the majority's attempts to justify the use of DNA as an identification tool "taxes the credulity of the credulous." He added, "Make no mistake about it: As an entirely predictable consequence of today's decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason."
Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined his dissent.
Justice Kennedy wrote that the decision was more limited than that, noting that DNA can be taken only from those suspected of "serious" crimes. He said police have a legitimate interest in identifying the person taken into custody, and that DNA samples could assure that a dangerous criminal is not released on bail.
"By comparison to this substantial government interest and the unique effectiveness of DNA identification, the intrusion of a cheek swab to obtain a DNA sample is a minimal one," he wrote.
Justice Stephen G. Breyer -- who most often votes with Justices Ginsburg, Sotomayor and Kagan -- joined the opinion, as did Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr. At the oral argument in the case in February, Justice Alito called it "perhaps the most important criminal procedure case that this court has heard in decades."
Maryland Attorney General Douglas F. Gansler said he was happy that the court agreed that "taking a DNA swab is no more invasive than taking someone's fingerprints -- and that DNA is an important tool in both identifying the guilty and exonerating the wrongly accused."
But American Civil Liberties Union legal director Steven R. Shapiro said the decision "creates a gaping new exception to the Fourth Amendment" and violates a long-established understanding that "police cannot search for evidence of a crime ... without individualized suspicion."
University of Pittsburgh criminal law professor David A. Harris called the majority's reasoning a stretch. "It's very puzzling because all this time -- through decades and decades -- we've been able to identify 99.9 percent of all people just fine with fingerprints and photographs," he said. "They seem to be searching for a rationale to do what they wanted to do anyway. And this is not a very convincing rationale at all."
Mr. Harris suggested that states without such DNA sampling rules already in place should take time before implementing them. Likening the pursuit of cold cases to a needle in a haystack, he suggested that an influx of samples will merely create a larger database that will "simply add more hay; they're not going to be needles. We already can't process the number of samples we have."
Still, all 50 states, the District of Columbia and the Obama administration backed Maryland in defending its law.
In Pennsylvania, there is state Senate legislation pending regarding DNA sampling. The bill would both strengthen the state's current DNA collection law -- for convicted felons -- and lead to additional arrests, said its sponsor, Sen. Dominic Pileggi, R-Chester. "We know from the experience of other states that this kind of DNA collection will help solve violent crimes, and it will get violent serial offenders off the streets -- literally saving lives," he said.
Mr. Pileggi also noted that his legislation strengthens privacy protections and requires DNA laboratories and technicians to meet national standards. It also contains a provision by which a defendant found not guilty can file a written request with state police to have the sample removed from the database.
"Pennsylvania can, and should, be taking better advantage of this powerful tool," Mr. Pileggi said. "Using DNA efficiently and properly helps investigators identify criminals, while also helping to exonerate the innocent."
Justice Kennedy said Maryland's law is limited. He noted that there, too, the sample is destroyed if the arrestee is not convicted, and that DNA tests did not violate the privacy of the person by revealing genetic traits or medical information.
Besides that, Justice Kennedy said, DNA identification provides critical information about the potential danger an arrestee poses, whether he should be eligible for bond or would be likely to flee because he committed a crime more serious than the one for which he was arrested.
But Justice Scalia said those justifications did not apply to Mr. King. It took months for his DNA to be tested, and his sample was not compared with a database that would confirm his identity, but instead to one with samples from cold cases, in which the identity of the DNA was unknown.
"Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches," Justice Scalia wrote.
He concluded with a nod to the Constitution's framers: "I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection."
Mr. Gansler, in an interview after the ruling, acknowledged that "the real reason for the law is solving crime," but said use of DNA was no different than "comparing fingerprints left at the scene of the crime" or a mug shot "to a photograph captured by a surveillance camera."
The decision was evidence of how the court's ideological differences blur on Fourth Amendment cases. Earlier this term, Justices Scalia and Thomas joined Justices Ginsburg, Sotomayor and Kagan to rule that bringing a police dog to a suspected drug dealer's door without a warrant amounted to an unlawful search.
And Justice Scalia joined Justice Sotomayor's broad ruling in another case holding that police officers generally must try to get a warrant before forcing uncooperative drunken-driving suspects to submit to a blood test.
Post-Gazette staff writer Paula Reed Ward contributed.