With increasing frequency, the Justices of the Supreme Court face issues of new and changing technology; these cases almost always present a challenge, especially in the field of law enforcement.

Just last Term, in United States v. Jones, the Court wrestled with whether law enforcement officials violated the Constitution when they used a GPS tracking device attached to the outside of a car to monitor a driver’s movements. In prior Terms, the Justices have considered questions about scientific evidence and cross-examination of lab experts. In other recent cases that did not involve law enforcement practices, the Court has considered whether Congress can regulate animal cruelty videos, as well as restrictions on violent video games by states, treatment of work text messages for employee discipline purposes, and efforts by the Federal Communications Commission to keep expletives off the primetime airwaves.

With all of this activity, it is not surprising that, during the November 2011 argument in the Jones case, the Justices kept referring to George Orwell’s 1984. The Court’s challenge is how to fit new technology into old legal doctrines and even older provisions of the Constitution. As Justice Samuel Alito noted about the Fourth Amendment last January in his concurring opinion in Jones, “it is almost impossible to think of late-18th-century situations that are analogous to what took place in this case.”

The Court’s latest foray into the intersection of law and technology involves the constitutional validity of the law enforcement practice of collecting DNA samples from individuals who are arrested for, but not yet convicted of, violent crimes and some other felonies. The samples, collected through a swab of the cheek inside the mouth, are compiled as part of a nationwide police database. The database is used to search for criminals by trying to match DNA from someone who is arrested for one crime with DNA from previous crime victims or crime scenes. The practice (in different forms) is authorized by law in twenty-eight states and the federal government.

How the Court handles these issues should be of interest not only to students of criminal procedure and law enforcement, but also to those interested in privacy, technology, evidence, the interaction of law and science, and the workings of the Supreme Court.

In the current technology challenge, the Justices will consider the case of Alonzo King, who was arrested in April 2009 on a variety of assault charges. Under Maryland law, these felony charges qualified King to have a DNA swab taken. Three months later, King’s completed DNA profile was uploaded to Maryland’s own DNA database, and shortly after that police learned that King’s DNA profile matched evidence from an unsolved 2003 rape case. Although the rape victim in the 2003 case had been unable to identify her attacker, a grand jury indicted King for the rape based on the DNA match. After the indictment, police obtained a search warrant and took a second DNA swab, which confirmed that King’s DNA matched evidence from the rape. After trying unsuccessfully in court to suppress the original DNA swab and resulting evidence, King was convicted of the rape charges and was sentenced to life in prison.

On appeal, the state’s highest court — the Maryland Court of Appeals – ruled that the evidence against King in the rape case was obtained illegally in violation of the Fourth Amendment because police had neither a warrant nor probable cause for the first DNA swab. The state court said that the existence of probable cause to arrest King for assault charges in 2009 did not create probable cause for the DNA swab after he was arrested. Thus, that court ruled, the Maryland law allowing the DNA swab without a search warrant was unconstitutional as applied to King. The state quickly went to the U.S. Supreme Court, and on July 30 Chief Justice John Roberts – who handles emergency orders that come from states within the Fourth Circuit – issued an order that allowed Maryland to continue collecting the DNA samples. Notably, the Chief Justice described the DNA collection as “a valuable tool for investigating unsolved crimes,” and he suggested that there was a “reasonable probability” that the Court would grant cert. and review King’s case. Indeed, on November 9, it did so, and the case is now scheduled for oral argument on February 26.

The question in the DNA appeal, as in the GPS decision last year, is how to balance the sometimes conflicting interests of privacy and public safety to reflect the values of the Fourth Amendment, which protects against “unreasonable searches and seizures” by the government. For some forty-five years, the Court has said that the key to analyzing whether a search passed muster under the Fourth Amendment is to consider whether an individual has a reasonable expectation of privacy as to the focus of the search and whether the government’s interest outweighs that expectation.

Maryland officials, backed by amicus briefs by other states, law enforcement organizations and the U.S. Solicitor General, argue that an individual who is under arrest for a violent crime or some other felonies has a significantly reduced expectation of privacy. Taking a cheek swab of an arrested individual, they argue, is a minimal intrusion on that privacy and is easily justified by the needs of law enforcement to be able to compile DNA data to help solve crimes and to exonerate those who are wrongly accused. Law enforcement interests also argue that the intrusion from the DNA swab is no greater than the fingerprinting to which arrestees have routinely been subjected for decades.

But the Maryland Court of Appeals saw the balance of interests differently, focusing at least in part on the technology that is represented by DNA profiles. The DNA swab, the Maryland court said, provides the government with a “vast genetic treasure map.” Fingerprints, the court continued, only provide the government with a means of identifying physical characteristics, while with a DNA sample, “[a] person’s entire genetic makeup and history is forcibly seized and maintained in a government file.” The Maryland court also noted that when the DNA test is not being used for the immediate prosecution but rather to try to solve other crimes, there is no reason why obtaining a DNA swab could not wait until after a person is convicted of one crime.

Deciding cases like the DNA appeal, or last year’s GPS dispute, may be especially challenging, as they require the Court to learn about the technology in order to determine how to apply the law. This point was driven home clearly in Jones, in which the GPS device was secretly attached to the car only after the authorizing search warrant had expired. Minutes into the oral argument, Chief Justice John Roberts mused that under the Justice Department’s view that the placement of the GPS to monitor travel on public roads was not really a search, federal agents could place GPS tracking devices on the cars of the Justices of the Supreme Court.

Making the issues even more complicated is the difference in approaches among the Justices to interpretation of the Fourth Amendment. While many Justices embrace a balancing approach that pits the expectation of privacy against the government’s justification, others – like Justice Antonin Scalia – maintain that the relevant inquiry is whether a contemporary practice would have been considered a search or seizure by the Framers of the Fourth Amendment, which was ratified in 1791.

Whatever the Court understands about new practices and however the Court decides to approach the meaning of constitutional provisions, there will certainly be more challenges of new technology facing the Justices in the months and years ahead.

Recommended Citation: Stephen Wermiel, SCOTUS for law students (sponsored by Bloomberg Law): The Court takes on DNA screening, SCOTUSblog (Jan. 10, 2013, 11:24 AM), https://www.scotusblog.com/2013/01/scotus-for-law-students-sponsored-by-bloomberg-law-the-court-takes-on-dna-screening/