King v. Maryland - When does DNA collection cross the line?

          Modern technology has created privacy concerns that previous generations could never have imagined. The Supreme Court of the United State will be grappling with one of these issues this week through their examination of a Maryland law allowing law enforcement to collect DNA from suspects that are arrested for (but not yet convicted of) felonies.

Maryland and 25 other states (plus the federal government) allow DNA samples to be collected after a felony arrest. Although state laws vary widely, in Maryland the DNA sample may be taken at arrest, but it cannot be tested until probably cause for the arrest has been established by a judge. If no probable cause is found, the sample must be destroyed immediately. The test done on the sample only identifies about 13 individual DNA markers, and it is not shared with any other parties (public or private) for any other purpose.

                In the current Supreme Court case, Alonzo King Jr. was arrested on an assault charge. At the time of his arrest, a sample was taken for DNA, which was later used to connect him to an unrelated sexual assault case. King attempted to have the DNA evidence suppressed under the Fourth Amendment. King was convicted at the trial court level, but the Maryland Court of Appeals held that the DNA was illegally obtained.

                The U.S. Supreme Court agreed to rule on the constitutional issues, and in the meantime granted a stay so that the Maryland law allowing DNA collection upon arrest will remain in effect. An amicus brief has been filed by 49 states, the District of Columbia, and Puerto Rico supporting the Maryland law. The brief emphasizes the compelling government interest served by collection of DNA samples from arrestees. It also argues that a felony arrestee has a diminished expectation of privacy.

                Cases such as this one raise numerous questions about personal notions of privacy, what is “private,” and what should be “private,” particularly in a law enforcement context. Many people feel that DNA is an unreasonable invasion of privacy – more so than other identifiable information like an address or a fingerprint. For example, familial DNA testing can potentially be used to identify individuals related to the arrestee. Others, however, counterbalance this with the law enforcement purposes of collecting DNA. Obtaining DNA from a broader number of individuals coming into contact with the criminal justice system (for instance, upon arrest, or for all crimes, not just felonies) would give law enforcement a greater opportunity to identify already-apprehended suspects in other crimes that they may be responsible for. But the question remains, is that interest greater than the personal privacy interest in keeping your DNA out of the government’s hands? Where does our personal right to privacy end and the government’s right to enforce its laws begin? The Supreme Court may soon tell us what they think.

For more on this case, see http://www.cnn.com/2013/02/25/politics/supreme-court-dna/.