Jesse J. Holland

WASHINGTON: The Salisbury, Md., police department thought it had finally caught a break.

A man wearing a hat and scarf and brandishing a gun had raped and robbed a 53-year-old woman in her home and then vanished into the night. Almost six years later, Alonzo King was arrested in a nearby county and charged with felony second-degree assault. Taking advantage of a Maryland law that allowed DNA tests following felony arrests, police took a cheek swab of King’s DNA that matched a sample from the 2003 Salisbury rape. King was convicted of rape and sentenced to life in prison.

But then a Maryland court said they had to let him go.

King was never convicted of the crime for which he was arrested and swabbed. Instead, he pleaded guilty to the lesser charge of misdemeanor assault, a crime for which Maryland cannot take DNA samples. The courts said it violated King’s rights for the state to take his DNA based on an arrest alone. The state Court of Appeals said King had “a sufficiently weighty and reasonable expectation of privacy against warrantless, suspicionless searches.”

Today, the Supreme Court will try to balance the rights of Americans who have not been convicted of a major crime to keep their DNA out of the government’s hands against the government’s interest in closing cold cases and the rights of crime victims to finally see justice done.

If the justices rule for King, more than 1 million DNA profiles that have been stored in a federal database for matching with future crime scene evidence may have to be purged and others will never be collected, leading some repeat offenders to go free, advocates say.

“The early collection of DNA prevents crime,” said William C. Sammons of the Maryland Coalition Against Sexual Assault. “Had the recidivists been identified early in their career through arrestee collection, they would not have been able to commit the bulk of their crimes.”

But privacy activists see letting police use DNA information without a warrant or a conviction as another loss for American privacy, with Americans’ genetic information held by the government eventually being used for other purposes, just as Social Security numbers were originally not intended to be used for identification.

“Regardless of what the government does with the DNA sample and the limits it places on the sample’s use, all the highly personal data in it is in the government’s possession, and outside the individual’s control,” said Jennifer Lynch, lawyer for the Electronic Frontier Foundation.

Getting DNA swabs from criminals is common. All 50 states and the federal government take cheek swabs from convicted criminals to check against federal and state databanks, with the court’s blessing. But now 28 states and the federal government now also take samples from people who have been arrested for various crimes, long before their guilt or innocence has been proven. According to court documents, the FBI’s Combined DNA Index System or CODIS — a coordinated system of federal, state and local databases of DNA profiles — contains more than 10 million criminal profiles and 1.1 million arrestee profiles.

The Obama administration argues that the government’s interest in solving crimes outweighs the right to keep personal genetic information secret.