April 1, 2013 (Vol. 33, No. 7)

Supreme Court Weighs Constitutionality of Collecting Samples Absent a Conviction

More than a quarter-century since Florida became the first state to use DNA evidence, convicting Tommy Lee Andrews of rape in 1987, scientists and others have struggled to balance the desire of law enforcement agencies to catch criminals and learn as much about them as possible with the need to protect the privacy of individuals’ genetic data.

Now it’s the U.S. Supreme Court’s turn to hear, and hopefully settle, the issue. On Tuesday, February 26, lawyers for the state of Maryland and a convicted rapist presented oral arguments on whether authorities can take the DNA of criminal suspects upon arrest but before they are convicted of a crime.

The issue is of immediate importance to the federal government and 28 states including Maryland, since they collect and analyze DNA data from people upon arrest—a practice also of Great Britain until 2008, when the European Court of Human Rights declared it a violation of human rights. But the issue also raises broader questions.

At issue in State of Maryland v. Alonzo Jay King Jr. is whether the U.S. Constitution’s Fourth Amendment allows warrantless collection and analysis of DNA from a suspect arrested but not convicted of crimes, solely for investigating other offenses for which no individual has been charged.

Maryland officials maintain the state acted properly when it collected DNA by swabbing King’s cheek when he was arrested in Maryland’s Wicomico County in 2009—a year after the state expanded DNA sample collection to include suspects of felony first-degree assault.

King was arrested on that charge, later dropped, and a misdemeanor or second-degree assault charge of which he was initially convicted.

Reopening a Cold Case

King’s DNA matched a sample stored in a state database in connection with a 2003 case in which a 53-year-old woman was raped. The match reopened what had been a cold case, and authorities additionally charged King with the rape and a related robbery, resulting in the life sentence he is now serving.

Through his lawyers, King contended that in collecting DNA before conviction, Maryland carried out an unreasonable search and seizure in violation of the U.S. Constitution’s Fourth Amendment. Not so, countered the state of Maryland. A Wicomico County trial court found him guilty of first-degree rape.

King’s conviction was overturned 5–2 by Maryland’s Court of Appeals, which rejected the state’s argument that collecting DNA was no different than collecting fingerprints from suspects: “Although the Maryland DNA Collection Act restricts the DNA profile to identifying information only, we cannot turn a blind eye to the vast genetic treasure map that remains in the DNA sample retained by the State.”

That “treasure map” includes what scientists know about people through their DNA—and, of particular concern to two lawyers interviewed in recent days, all that remains to be discovered.

“Your fingerprints don’t tell your race, or who you might be related to, or other kinds of information,” Edward J. Naughton, a partner in the Boston office of law firm Brown Rudnick, told GEN. “Your genome contains everything that’s needed, and the government is holding a sample that has your entire DNA profile. And it’s that that really makes DNA different. You can’t reconstruct someone’s risk of developing certain diseases from someone’s fingerprints or their rap sheet.”

Kristina Bieker-Brady, Ph.D., managing partner with the science-focused IP law firm Clark & Elbing in Boston, calls the case a classic example of good facts making bad law: While Maryland authorities convicted King, they did so through a warrantless DNA collection.

“They used that information for the better good of society. But that information goes into a database that can be dipped into for any number of reasons, good or bad. So there’s a real sense among some of us that we need to be very careful about when and under what circumstances we obtain DNA, and how we safeguard that information once we have it,” said Dr. Bieker-Brady, a molecular biologist and geneticist by training.

“Down the road, in ways that we can’t even envision now, there will be information that can be obtained from those sequences that could be detrimental to the individual,” she added.

For example, partial DNA matches involving an arrested suspect can link that person’s family members to other crimes. California, Colorado, Texas, and Virginia are among states that carry out familial searches, according to the FBI.

Beyond families, some suspects are accused wrongly. As Naughton noted, genetic material from a 2004 murder in New York City appeared to match DNA from a chain keeping a subway gate open during an Occupy Wall Street protest last year, but the murder-scene sample was later found to be contaminated.

The patchwork of state laws and procedures complicates efforts to resolve issues raised by the case. In addition to FBI’s Combined DNA Index System or CODIS, DNA databases are maintained by most states, each with their own procedures for whom to sample, and the crimes for which suspects may undergo testing upon arrest.

A Need for Guidance

Even worse, as Maryland cited in a court filing, out of 10 federal and state courts issuing opinions on DNA collection from arrestees, five upheld the practice; the other five found it unconstitutional.

“We need to have guidance,” Naughton said, “because you have each state and the federal government setting requirements for collection, and when samples can be analyzed, and how they should be handled or destroyed or expunged—whether the DNA sample can remain on file, as it were, the entire sample, or only maintain an analysis of the 13 loci that are analyzed.”

Will Maryland v. King produce that much-needed guidance? Naughton thinks so: “You should expect, and I expect, that the guidelines for what is permissible and not permissible are likely to be determined by how the Court decides this case, and what factors either make the collection permissible, or make it unconstitutional.”

Dr. Bieker-Brady disagrees, since the case hasn’t generated enough clamor for a single national standard from law enforcement or DNA privacy advocates.

A longtime advocate of DNA privacy, the Council for Responsible Genetics (CRG), filed an amicus curiae brief contending that collection upon arrest should be stopped on racial justice grounds.

The group cited U.S. Bureau of Justice Statistics figures for 2010, which showed blacks accounted for 12% of the nation’s adult population but about 27% of adult arrests. Even if they’re later found innocent, arrestees face stigmatization and unwarranted law enforcement surveillance from being on the database, CRG argued.

“That the government would obtain DNA from any innocent person is disturbing, but the practice visits a special and severe harm upon minorities,” Jeremy Gruber, J.D., CRG’s president and executive director, told GEN.

Even so, as Naughton and Dr. Bieker-Brady agreed, the issue is a larger one than race.

“An analogy would be, a guy gets into a bar fight, and punches another guy out. Police arrive, everybody agrees this fellow threw the punch. He gets fingerprinted. Police then pull his hard drive. They could find information result in his conviction for something unrelated to the fight,” Dr. Bieker-Brady said. “We would not let that search occur without a warrant right now, or without a reasonable cause. And I would argue to you that the information you’re pulling out of a genome is potentially far beyond what you’re pulling out of a hard drive.”

An assault charge stemming from a punch may not warrant the taking of a DNA sample, but what about murder, rape, or sexual abuse? The heinousness of these crimes should compel the Supreme Court to at least consider limiting collection to these crimes, or a “probable cause” standard beyond a mere arrest.

On February 19 the Court upheld the use of police dogs in searches by ruling that a dog’s sniffing focused on the handle of a car door constituted probable cause for searching the vehicle for drugs and contraband—an example of the balance between privacy and law enforcement the high court should apply to DNA collection.

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