2013 02 25 NYT DNA and the Constitution – NYTimes.com
DNA and the Constitution
Published: February 24, 2013
On Tuesday, the Supreme Court is scheduled to hear argument about whether it is constitutional for a state to collect DNA from people charged with violent crimes but not yet convicted. Last April, the Maryland Court of Appeals ruled that a state law authorizing such collection violated the Fourth Amendment’s prohibition against unreasonable searches and seizures.
Maryland law enforcement officials were allowed to continue collecting DNA samples, however, through an order last July by Chief Justice John Roberts Jr. He said there was a “fair prospect” that the Supreme Court would reverse the Maryland decision, which conflicts with rulings of the Virginia Supreme Court and of the United States Courts of Appeals for the Third and the Ninth Circuits on similar statutes in other states. But the justices should uphold the Maryland court’s ruling, thus calling into question those other rulings. The Maryland law clearly contravenes the Fourth Amendment.
The case involves the collection of DNA from Alonzo Jay King Jr. after his arrest on assault charges in 2009. His DNA profile matched evidence from a rape in 2003, and he was convicted of that rape.
The state did not, however, obtain a warrant to collect his DNA, nor did it establish that it had probable cause to think that his DNA would link him either to the assault or the rape. It did not even meet the lowest threshold for some searches, by establishing that it had a reasonable basis for taking his DNA, or showing that the DNA evidence would disappear unless it was collected.
Maryland argues that collecting and analyzing DNA is like fingerprinting. But the purpose of fingerprinting is to identify someone who has been arrested. Maryland was using DNA for investigative purposes, not identification, and doing so without legal justification.
Maryland also argues that the incursion on Mr. King’s privacy was minor compared with the major benefit in crime-solving. But the number of crimes solved with DNA from people arrested has been low. The substantial harm to innocent people that could result from the misuse of DNA greatly outweighs the benefits. And the safeguard against such harm is the Fourth Amendment, whose fundamental protections the Maryland court upheld. The Supreme Court should do likewise.