By Lawrence Hurley
WASHINGTON (Reuters) - In a major victory for law enforcement agencies, a divided Supreme Court on Monday ruled that police can take a DNA sample from someone who has been arrested and charged but not convicted of a serious crime.
In a narrow 5-4 vote, the court handed a victory to the state of Maryland by saying that taking DNA samples from arrestees was similar to taking fingerprints. Of the 50 states, 29 have laws that allow DNA samples prior to conviction in certain instances, as does the federal government. All 49 other states backed Maryland in the case.
The Supreme Court reversed a decision made last April by Maryland's highest court that overturned the 2010 conviction and life sentence of Alonzo Jay King for a rape committed seven years earlier.
In a majority opinion, Supreme Court Justice Anthony Kennedy said DNA samples can be taken if police have probable cause to detain a suspect facing charges relating to a "serious offense."
Taking a sample using a swab inside the cheek is "like fingerprinting and photographing, a legitimate police booking procedure," he wrote.
King's right under the U.S. Constitution's Fourth Amendment to be free from unreasonable search and seizure had therefore not been violated, Kennedy added.
The ruling sparked vigorous dissent from conservative Justice Antonin Scalia, who accused the majority of undermining the protections enshrined by the Fourth Amendment. Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, all from the liberal wing of the court, sided with Scalia.
Maryland Attorney General Douglas Gansler welcomed the decision, calling it a "resounding victory for law enforcement." He said laws like the one in Maryland helped close "unsolvable cold cases" and could help exonerate those wrongly accused.
King's attorneys at the Maryland Office of the Public Defender did not respond to requests seeking comment.
A sample King gave after a 2009 arrest on assault charges linked him to a 2003 rape and he was sentenced to life in prison. However, the Maryland appeals court concluded that his were violated by being required to provide a DNA sample.
One of the key questions before the Supreme Court was whether police could take his DNA sample when, at the time of the test, they had no evidence linking him with the rape.
It remains unclear if Monday's ruling could open the floodgates to broader DNA collection efforts.
Kennedy said the court's decision was limited to those arrested for a "serious offense." That is a phrase from the Maryland DNA law, which defines a serious offense as a crime of violence or burglary.
However, the National Association of Federal Defenders says federal law could allow DNA samples to be taken for various misdemeanors - even including unauthorized use of Smokey Bear, a cartoon character used by the U.S. Forest Service to warn people about the dangers of fires.
William Jay, a lawyer at the Goodwin Procter law firm who filed the group's brief supporting King, said the ruling left open a significant question as to how it would apply to people not arrested for serious violent crimes.
Scalia dismissed Kennedy's claim that the ruling was limited, saying that in practice he thought that under the court's rationale, DNA could be taken after any arrest.
The states that have DNA collection laws limit the application to those arrested for certain felonies, according to a brief filed by the 49 other states in support of Maryland.
Nevada passed its own law just last week. Jayann Sepich, who runs a nonprofit organization "DNA Saves," which advocates DNA collection laws, said she was hoping legislation would be enacted in next Pennsylvania and Wisconsin.
Monday's ruling was "incredibly important," she said, because DNA collection laws can solve crimes and prevent repeat offenders from committing further offenses.
DNA has already been collected from 1.3 million arrested suspects and 10 million convicted people nationwide, according to the Federal Bureau of Investigation.
The case is Maryland v. King, U.S. Supreme Court, No. 207.
(Reporting by Lawrence Hurley; Editing by Howard Goller and David Brunnstrom)