Justice Anthony Kennedy: "My question is whether or not the police who have John Doe in custody for a felony have an interest in knowing at the outset or within a few weeks time whether or not that person has committed other crimes?"
Roberts again: "Doesn't that sound just like a Breathalyzer? You are pulled over, they [police] say, we want you to take a Breathalyzer test. They say, you don't have to, but if you don't your license is suspended for six months or whatever. Why isn't that the same thing?"
A 1994 federal law created a national database in which local, state, and federal law enforcement agencies can compare and share information on DNA matches from convicted felons, but courts have been at odds on just when such samples can be collected and the information distributed.
The state DNA collection law in Maryland is set to expire at the end of the year, but the justices are likely to decide its constitutionality before then.
In a brief filed by 49 states supporting Maryland, officials also say the information is secure, and retested when an initial "hit" is identified. After a warrant is issued for probable cause, another fresh DNA sample is taken and it is that test that is used to ultimately prosecute in court. Each initial test costs about $30.
The Fourth Amendment requires the government to balance legitimate law enforcement interests with the privacy rights of individuals. A key area of concern in the high court was whether developing "Rapid DNA" technology will allow initial identification testing to be completed within about two hours. Currently it can take two weeks or more, depending on backlogs.
In responding to concerns DNA testing after arrest had only one real purpose---to solve unrelated, past crimes-- the state said quick testing of DNA could serve another purpose. Winfree said similar to fingerprints, the new technology could help determine whether arrested suspects should be released on bail, or remain in jail because of other newly suspected past offenses. She cited an FBI estimate the new technology could in place within 18 months.
King's attorney, Kannon Shanmugam, told the high court, "There are over 12 million arrests in the United States every year. Virtually all of the arguments advanced by [Maryland] and the United States would justify the blanket collection and retention of DNA from ordinary citizens."
And civil liberties groups worry inadequate testing by overwhelmed lab technicians can lead to errors, such as the one that sent Dwayne Jackson to prison for armed robbery. It was three years before a lab mistake was noticed, and the Nevada man was freed as an innocent man.
Deoxyribonucleic acid is a coded molecule providing a genetic map for the development of all known living organisms. By 2000, all 50 states and the federal government required DNA collection from convicted offenders, and was soon expanded by many jurisdiction to criminal arrests.
The number of offender profiles in federal Combined DNA Index System (CODIS) is now about 10 million, with more than a million arrestee profiles.
Congress in December passed the Katie Sepich Enhanced DNA Collection Act, a grant program to help states pay for the expanded system. The 22-year-old woman was murdered in 2003, but her killer was not identified until three years later, after his conviction for another crime, when his DNA matched cold-case evidence under the victim's fingernails.
Her mother, Jayann Sepich, personally lobbied lawmakers for months to ensure passage.
President Obama signed the bill last month. "It's the right thing to do," he said in 2010, of expanding DNA swabs for arrestees. "This is where the national registry becomes so important."
The case is Maryland v. King (12-207). A ruling will be issued within a few months.