The Supreme Court is about to decide what one justice says may be its most important criminal procedure case in decades — whether the police have the right to take a DNA sample after they make an arrest.
The question before the justices is whether taking DNA, often with the quick swab of a cheek, is the latter-day equivalent of fingerprinting or violates the Fourth Amendment protection against unreasonable searches.
“This is what’s at stake,” Justice Samuel Alito said during an oral argument Feb. 26. “Lots of murders, lots of rapes that can be — that can be solved using this new technology that involves a very minimal intrusion on personal privacy.”
The case arises from the arrest of a 26-year-old Maryland man, Alonzo King, in 2009 on a charge of second-degree assault. The police took a swab of DNA from his cheek, ran it through a database and matched it to an unsolved rape from six years earlier.
King was convicted of rape and sentenced to life in prison. He pleaded guilty to a misdemeanor for the 2009 assault. The Maryland Court of Appeals later reversed the rape conviction on the grounds that the DNA sample was an unreasonable search.
The question before the court has vast implications: 28 states and the federal government take DNA swabs from people under arrest before they can be judged innocent or guilty.
In Maryland alone, DNA samples during arrests have led to 75 prosecutions and 42 convictions since 2009, Katherine Winfree, the state’s chief deputy attorney general, told the justices.
Maryland law restricts DNA swabbing to people arrested for certain violent crimes. But Chief Justice John Roberts, worried about the reach of similar laws, wondered during the oral argument why they couldn’t be applied to simple traffic stops.
“There’s no reason you couldn’t, right?” he asked Winfree. “I gather it’s not that hard. Police officers who give Breathalyzer tests, they can also take a Q-tip or whatever and get a DNA sample, right?”
Michael Dreeben, a lawyer for the federal government, which supports the Maryland law, told the justices that people under arrest “are no longer like free citizens who are wandering around on the streets” with full Fourth Amendment rights.
They can be subjected to a strip search, for example, or given a medical screening when they are thrown in jail, he said. While he conceded that law enforcement officers must get a warrant before searching a home, he said DNA was “not of that character.”
“It is far more like taking a fingerprint,” he said.
Kannon Shanmugam, a lawyer for King, argued that the two were different, partly because fingerprinting is mostly used for identification, not to solve cold cases, and is much more invasive.
“An individual’s DNA contains far more information and far more personal information than an individual’s fingerprints,” he said.
Prosecutors around the country will be watching the court’s ruling closely. If the justices decide that DNA swabbing during arrest is unconstitutional, untold numbers of cold-case convictions could be appealed.
Mindful of the implications, the court could narrowly tailor its ruling, said Jeffrey Urdangen, director of the Center for Criminal Defense at the Northwestern University School of Law.
“The repercussions of this are enormous,” he said.
For victims of violent crime, as for the justices themselves, the question presents a difficult balancing act — how to weigh the crime-solving power of forensic advances against the rights of the accused.
Mai Fernandez, executive director of the National Center for Victims of Crime, acknowledged that the issue is tough, but she said the center supports DNA sampling at the time of arrest, partly because it could prevent future crime.
She likened it to vaccination: Patients have to grapple with side effects, she said, but that pales next to the potential for good.
Of the DNA sampling, she said: “It’s a tool that can save many, many, many lives, and we should take hold of it. It doesn’t mean that we don’t remain a good country. It’s not the end of democracy. It’s just a new tool that we need to learn how to handle.”
Justice Antonin Scalia was less welcoming. At the oral argument, he cut off Winfree, the Maryland state lawyer, immediately after she mentioned the 75 prosecutions and 42 convictions.
“Well, that’s really good,” he said. “I’ll bet you if you conducted a lot of unreasonable searches and seizures, you’d get more convictions, too.”
Alito, the justice who called the sampling issue “perhaps the most important criminal procedure case that this court has heard in decades,” appeared to lean toward classifying it with fingerprinting.
He and Scalia, two of the court’s conservatives, generally come down on the same side of rulings. But they appeared to differ on DNA sampling, an indication of the trickiness of the issue.
Matching the DNA against databases now takes two to three weeks. Two years from now, it could be almost instant, the Maryland lawyer said, meaning the judges could use it to make determinations about bail.
Scalia was unmoved.
“You just can’t demonstrate that now,” he said. “Maybe you can in two years. The purpose now is — is the purpose you began your presentation with, to catch the bad guys, which is a good thing.”
“But you know,” he continued, “the Fourth Amendment sometimes stands in the way.”
The Associated Press contributed to this report.
The U-2 spy plane, the high-flying aircraft that was often at the heart of cold war suspense, is enjoying an encore
Four years ago, the Pentagon was ready to start retiring the plane, which took its first test flight in 1955. But Congress blocked that, saying the plane was still useful.
And so it is. Because of updates in the use of its powerful sensors, it has become the most sought-after spy craft in a very different war in Afghanistan.
All this is a remarkable change from the U-2’s early days as a player in United States-Soviet espionage. Built to find Soviet missiles, it became famous when Francis Gary Powers was shot down in one while streaking across the Soviet Union in 1960, and again when another U-2 took the photographs that set off the Cuban missile crisis in 1962. Newer versions of the plane have gathered intelligence in every war since then and still monitor countries like North Korea.
Now the U-2 and its pilots, once isolated in their spacesuits at 70,000 feet, are in direct radio contact with the troops in Afghanistan. And instead of following a rote path, they are now shifted frequently in midflight to scout roads for convoys and aid soldiers in firefights.
In some ways, the U-2, which flew its first mission in 1956, is like an updated version of an Etch A Sketch in an era of high-tech computer games.
“It’s like after all the years it’s flown, the U-2 is in its prime again,” said Lt. Col. Jason M. Brown, who commands an intelligence squadron that plans the missions and analyzes much of the data. “It can do things that nothing else can do.”
One of those things, improbably enough, is that even from 13 miles up its sensors can detect small disturbances in the dirt, providing a new way to find makeshift mines that kill many soldiers.
In the weeks leading up to the recent offensive in Marja, military officials said, several of the 32 remaining U-2s found nearly 150 possible mines in roads and helicopter landing areas, enabling the Marines to blow them up before approaching the town.
Marine officers say they relied on photographs from the U-2’s old film cameras, which take panoramic images at such a high resolution they can see insurgent footpaths, while the U-2’s newer digital cameras beamed back frequent updates on 25 spots where the Marines thought they could be vulnerable.
In addition, the U-2’s altitude, once a defense against antiaircraft missiles, enables it to scoop up signals from insurgent phone conversations that mountains would otherwise block.
As a result, Colonel Brown said, the U-2 is often able to collect information that suggests where to send the Predator and Reaper drones, which take video and also fire missiles. He said the most reliable intelligence comes when the U-2s and the drones are all concentrated over the same area, as is increasingly the case.
The U-2, a black jet with long, narrow wings to help it slip through the thin air, cuts an impressive figure as it rises rapidly into the sky. It flies at twice the height of a commercial jet, affording pilots views of such things as the earth’s curvature.
But the plane, nicknamed the Dragon Lady, is difficult to fly, and missions are grueling and dangerous. The U-2s used in Afghanistan and Iraq commute each day from a base near the Persian Gulf, and the trip can last nine to 12 hours. Pilots eat meals squeezed through tubes and wear spacesuits because their blood would literally boil if they had to eject unprotected at such a high altitude.
As the number of flights increases, some of the plane’s 60 pilots have suffered from the same disorienting illness, known as the bends, that afflicts deep-sea divers who ascend too quickly.
Relaxing recently in their clubhouse at Beale Air Force Base near Sacramento, Calif., the U-2’s home base, several pilots said the most common problems are sharp joint pain or a temporary fogginess.
But in 2006, a U-2 pilot almost crashed after drifting in and out of consciousness during a flight over Afghanistan. The pilot, Kevin Henry, now a retired Air Force lieutenant colonel, said in an interview that he felt as if he were drunk, and he suffered some brain damage. At one point, he said, he came within five feet of smashing into the ground before miraculously finding a runway.
As a safety measure, U-2 pilots start breathing pure oxygen an hour before takeoff to reduce the nitrogen in their bodies and cut the risk of decompression sickness. Mr. Henry, who now instructs pilots on safety, thinks problems with his helmet seal kept him from breathing enough pure oxygen before his flight.
Lt. Col. Kelly N. West, the chief of aerospace medicine at Beale, said one other pilot had also been disqualified from flying the U-2. Since 2002, six pilots have transferred out on their own after suffering decompression illnesses.
Still, most of the pilots remain undeterred, and the Air Force is taking more precautions. Holding an oxygen mask to his nose, one pilot, Maj. Eric M. Shontz, hopped on an elliptical machine for 10 minutes before a practice flight at Beale to help dispel the nitrogen faster. Several assistants then made sure he stayed connected to an oxygen machine as they sealed his spacesuit and drove him to the plane.
Major Shontz and other U-2 pilots say the planes gradually became more integrated in the operations in Iraq and Afghanistan. But since the flights over Afghanistan began to surge in early 2009, the U-2s have become a much more fluid part of the daily battle plan.
Major Shontz said he was on the radio late last year with an officer as a rocket-propelled grenade exploded. “You could hear his voice talking faster and faster, and he’s telling me that he needs air support,” Major Shontz recalled. He said that a minute after he relayed the message, an A-10 gunship was sent to help.
Brig. Gen. H.D. Polumbo Jr., a top policy official with the Air Force, said recent decisions to give intelligence analysts more flexibility in figuring out how to use the U-2 each day had added to its revival.
Over beers at the clubhouse, decorated with scrolls honoring the heroes of their small fraternity, other U-2 pilots say they know their aircraft’s reprieve will last only so long.
And the U-2’s replacement sits right across the base — the Global Hawk, a remote-controlled drone that flies almost as high as the U-2 and typically stays aloft for 24 hours or more. The first few Global Hawks have been taking intelligence photos in Iraq and Afghanistan.
But a larger model that could also intercept communications has been delayed, and the Air Force is studying how to add sensors that can detect roadside bombs to other planes. So officials say it will most likely be 2013 at the earliest before the U-2 is phased into retirement.
“We’ve needed to be nimble to stay relevant,” said Doug P. McMahon, a major who has flown the U-2 for three years. “But eventually it’s bound to end.”