The Supreme Court will revisit the crossroad of privacy and evolving science later this month when it considers whether officials can take the DNA -- without a warrant -- of someone who has been arrested but not convicted of a crime.
While all states require DNA from individuals convicted of a felony, the federal government and 28 states also require DNA collection and analysis from at least some arrestees.
Alonzo Jay King Jr, claims his constitutional rights were violated when he was arrested in 2009 for assault. At the time of his arrest, pursuant to Maryland's DNA Collection Act, officials swabbed his cheek and collected his DNA without a warrant.
His 2009 sample was later matched in a state database to DNA from a 2003 rape case. It was a cold case involving a 53-year-old female victim identified as "Vonette W." in Maryland. Based on the new evidence, King was eventually charged with the 2003 rape and robbery. He is currently serving a life sentence.
Lawyers for King appealed the decision arguing that taking the warrantless DNA from someone who has been arrested but not convicted of a serious crime violates the Fourth Amendment's ban on unreasonable search and seizure. The Court of Appeals of Maryland ruled in King's favor.
The court rejected an analogy that taking the DNA was no more invasive than taking a fingerprint.
"Although the Maryland DNA Collection Act restricts the DNA profile to identifying information only, we can not turn a blind eye to the vast genetic treasure map that remains in the DNA sample retained by the State," the court's majority said.
Maryland's Attorney General Douglas F. Gansler is asking the Supreme Court to step in and reverse the lower court decision.
In court papers filed with the Supreme Court, the two sides address the balance between an individual's privacy and the needs of law enforcement.
King's lawyers say that even though their client has diminished privacy as someone who had been arrested for a serious crime, the government has no right to forgo ordinary rules requiring a warrant and probable cause before forcing him to submit to a search for investigative purposes involving a physical intrusion into the body.
"The collection of an individual's DNA raises profound privacy concerns," writes King's lawyer, Kannon K. Shanmugam. "Our DNA is our blueprint: an individual's DNA contains not only deeply personal information about the subject's medical history and genetic conditions, but also information that can be used to make predictions about a host of physical and behavioral characteristics, ranging from a subject's age, ethnicity, and intelligence to the subject's propensity for violence and addiction."
Shanmugam cautions the court about the impact of new technologies and individual privacy and says the court needs to draw the line at allowing officials to conduct warrantless DNA tests before arrestees have even been convicted of a crime.
"Some Fourth Amendment incursions may come in sheep's clothing," Shanmugam tells the justices in court briefs. "This wolf comes as a wolf."
But Gansler defends the law. He references the cold case that was solved because of the law. "He [King] did not leave behind his photograph, his fingerprints or his name, but he did leave his identity nonetheless, in the form of a string of numbers engraved upon every cell."
Gansler says the collection of DNA is subject to strict regulations and that the state must destroy a DNA sample and expunge all related DNA records if no conviction arises from the related charges or the conviction is reversed.
The federal government agrees and has filed a brief on behalf of Maryland arguing that the "touchstone of the Fourth Amendment is reasonableness" and that the law properly balances a person's privacy interest against a legitimate government interest.
"The governments' interests very significantly outweigh an arrestee's interest in avoiding the minimal intrusion of collection of a DNA sample for the limited purpose of creating a DNA fingerprint."
The Supreme Court will hear arguments in the case on Feb. 26.