WASHINGTON — The Supreme Court justices sounded closely split Tuesday on what one of them called the most important criminal procedure case in decades, a challenge to whether police may routinely take DNA samples from suspects and put the results in a national database.
“Why isn’t this the fingerprinting of the 21st century?” asked Justice Samuel A. Alito Jr. DNA is even more accurate than fingerprinting and has a great potential to solve horrible crimes, he said.
But his fellow conservative, Justice Antonin Scalia, took up the other side, arguing that the court has not allowed police to freely search people or homes in hopes of finding evidence of other possible crimes.
“If you stick a swab in his mouth, that’s a search,” Scalia said. “The purpose is to catch bad guys. But sometimes, the Fourth Amendment stands in the way.”
Meanwhile, liberal Justice Stephen G. Breyer said DNA testing seemed entirely reasonable.
It’s “not intrusive,” he said, referring to the mouth swab. And it’s more accurate and reliable than fingerprinting, he said.
Others worried about going too far. Justice Ruth Bader Ginsburg asked if police could stop someone suspicious on the street and ask to take a DNA swab.
“Why not do it for every person who comes in for a driver’s license?” asked Justice Elena Kagan, posing another hypothetical.
A government lawyer responded that people who are arrested and charged with a crime have a lesser right to privacy than ordinary people on the street.
Lawyers for Maryland and the Justice Department told the justices that police departments stand at the edge of a revolution in speedy DNA technology. This will allow them to take a DNA sample from a suspect and run a nationwide check within 90 minutes before deciding whether to release the person.
Currently it takes several days, and perhaps as long as a few months, for a DNA sample to be processed and analyzed by the FBI’s national database, they said.
State attorneys from all 50 states have joined the Obama administration in urging the court to approve DNA testing of people who are arrested but not convicted of serious crimes. All states now authorize testing the DNA of people who are convicted of felony crimes.
Meanwhile, 28 states have gone further and begun taking DNA samples from people who are arrested for a serious crime.
But last year, Maryland’s highest court ruled it was an unconstitutional search to take a DNA swab from a man arrested for assault. The suspect in the case, Alonzo King, was later convicted of an unsolved rape based on a DNA match and he was sentenced to life in prison.
The court will issue a decision in Maryland vs. King in several months.