The conflicting tug of personal privacy and crime-solving technology tore at the Supreme Court on Tuesday as justices considered whether the Fourth Amendment permits police to take DNA samples from arrestees who have not been charged with or convicted of a crime.
Justices appeared unusually burdened by the gravity of the issue. At one point Justice Samuel Alito Jr. said he believed the case before them, Maryland v. King, was "perhaps the most important criminal procedure case that this court has heard in decades."
The libertarian streak of some of the court's conservatives was on display, with justices expressing worry about the implications of a Maryland law—similar to those in 27 other states—that does not require a search warrant before police can use a swab to take a DNA sample from inside the mouths of those arrested for serious crimes.
Justice Antonin Scalia set the tone in the opening moments of the hourlong argument, after Deputy Maryland Attorney General Katherine Winfree rattled off the number of convictions obtained and crimes solved when DNA collected under the law matched DNA gathered in previous crimes.
"Well, that's really good!" Scalia exploded. "I'll bet if you conducted a lot of unreasonable searches and seizures, you'd get more convictions, too. That proves absolutely nothing."
Briefly flustered, Winfree hesitated but then said the numbers proved the statute was working.
Soon, other justices piled on, with Chief Justice John Roberts Jr. asking why, if Maryland's law was constitutional, the DNA sampling couldn't be expanded to those arrested for less serious crimes. Why not "anybody pulled over for a traffic violation," he asked. What about a Terry stop, asked Justice Ruth Bader Ginsburg, referring to the Terry v. Ohio ruling that allows police to stop and frisk citizens based on only "reasonable suspicion" that the person is armed or might have committed a crime.
Justice Elena Kagan wondered why, if police can take DNA of an arrestee, they couldn't also search that person's home. "Just because you've been arrested doesn't mean that you lose the privacy expectations in things that you have that aren't related to the offense that you've been arrested for," Kagan stated, adding, "Why don't we do this for everybody who comes in for a driver's license?"
Justice Sonia Sotomayor worried that the law could be extended to "schools, workplaces, wherever else the state has control over your person."
Winfree responded to the barrage by asserting that when police arrest someone, that person "surrenders a substantial amount of liberty and privacy." That lessened expectation of privacy allows police to take DNA not only for the purposes of solving other crimes but also to determine a suspect's identity and past record and, if a match is made, whether the suspect should be let out on bail.
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