LINDA WERTHEIMER, HOST:
The law enforcement community is celebrating a U.S. Supreme Court ruling that allows police to automatically take DNA samples from people they've arrested. The 5-to-4 decision allows police to send those samples to a national crime scene database, to see if they match DNA from unsolved crimes.
NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: The Court's ruling came in the case of Alonzo King, a Maryland man arrested in 2009 for menacing a crowd with a gun. When he was taken in for booking, the police automatically swabbed his cheek for DNA and sent it off to the national database on unsolved crimes. The sample matched a rape six years earlier. King was then tried for the rape and convicted, but the conviction was subsequently thrown out on grounds there was no warrant and no individualized suspicion that justified taking the DNA.
Yesterday however, a sharply divided Supreme Court reinstated the conviction, comparing the DNA sampling to the taking of photos and fingerprints at the time a suspect is booked. The 5-to-4 decision split the Court's conservative and liberal blocs, with conservative Justice Antonin Scalia authoring a fiery dissent, and the usually more liberal Justice Stephen Breyer providing a fifth vote to make for a majority ruling for conservatives.
Writing for the majority, Justice Anthony Kennedy, conceded that a DNA swab of the cheek is a search. But he said that taking the sample does not run afoul of the Constitution because it is not unreasonable. Nor, he said, is it unreasonable to use DNA to ascertain whether the arrestee has a criminal history that would make him a flight risk or a risk to the public if released on bail.
Twenty-eight states and the federal government have laws permitting DNA testing of arrestees, but the lower courts were split on whether the practice was constitutional.
George Washington University Law Professor Orin Kerr.
ORIN KERR: It just wasn't clear beforehand if that was lawful. Now we know that it is.
TOTENBERG: Stephen Saltzburg, author of a leading criminal law text.
STEPHEN SALTZBURG: The 28 states that do DNA testing of arrestees can breathe a sigh of relief.
TOTENBERG: Marcus Brown, superintendant of the Maryland State Police, said he expects that the remaining 22 states will now enact laws like Maryland's.
SUPERINTENDENT MARCUS BROWN: I really can't see how other states won't. We view it as a sort of the modern fingerprint.
TOTENBERG: But he acknowledged, as did others, that DNA samples from arrestees are used not merely for identification but to solve cold cases. Here's Irv Gornstein, executive director of the Georgetown Law Center Supreme Court Institute.
IRV GORNSTEIN: I think it's a big deal for governments in general that are trying to solve cold cases.
TOTENBERG: Gornstein noted that while Justice Kennedy's opinion barely mentioned cold cases, Justice Alito at oral argument called this perhaps the most important criminal procedure case in many decades. And it wasn't because Alito thought the state needed more information to make bail decisions.
GORNSTEIN: I think he was quite explicit that there were these rapes and murders that were unsolved. And here we have a ready mechanism for solving these crimes.
TOTENBERG: Civil libertarians were disappointed by the ruling. But perhaps because DNA has so often been used to free the innocent, the critiques were relatively muted.
There was nothing muted about Justice Scalia's rare oral dissent from the bench. He blasted the majority for casting aside the bedrock principle of the Fourth Amendment that the government may not conduct searches of its citizens without individualized suspicion. Make no mistake about it, he thundered. Because of today's decision, your DNA can taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason.
Referring to the majority, he jibed, the proud men who wrote the charter of our liberties would not have been so eager to open their mouths for royal inspection.
Nina Totenberg, NPR News, Washington.
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