MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington, welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. Later in the broadcast, The Washington Post Cookbook. Food Wednesday goes behind the history of recipes at D.C.'s storied daily newspaper. But first, the Supreme Court settles Maryland's long simmering debate over DNA. The highest court in the country on Monday upheld Maryland's law that allows for law enforcement to collect DNA from those charged with but not yet convicted of serious crimes.

MR. KOJO NNAMDIProsecutors say such DNA collection is an important tool in criminal cases, but questions about the constitutionality of the law sparked the legal dispute that was ultimately settled this week by the Supreme Court. Joining us to explore this ruling and what it means for the region and for the rest of the country is Stephen Mercer. He is chief attorney in the Forensics Division of the Maryland Public Defender's Office. He joins us in studio. Stephen Mercer, thank you for joining us.

ATTY. STEPHEN B. MERCERThank you, Kojo.

NNAMDIAlso with us is Jeffrey Rosen. He is legal affairs editor at The New Republic and a professor at the George Washington University Law School. He joins us by phone from Philadelphia. Jeffrey Rosen, thank you for joining us.

PROF. JEFFREY ROSENThank you, Kojo.

NNAMDIJeffrey, the court upheld the Maryland law that's similar to those in more than two dozen states, but first, this case was born out of a dispute over the use of DNA to link the assault defendant Alonzo King to a separate crime of rape. What's the story behind the Alonzo King case?

ROSENAlonzo King was arrested in 2009 on first- and second-degree assault charges relating to using a weapon to menace a group. On arrest, according to Maryland law, his cheek was swabbed, and his DNA was seized. Sometime later, three days later, in fact, when he was arraigned, this was entered into the Maryland DNA database, and still later down the line, four months later, the DNA sample was plugged into the federal DNA database, known as SCOTUS, and there, his DNA was found to match DNA taken from a rape victim in Salisbury, basically, an unsolved rape case.

ROSENSo he was tried and convicted for rape, and he argued that the conviction should be overturned because his DNA should never been seized on arrest without a valid search warrant. The Court of Appeals in Maryland agreed with him and set the rape conviction aside, but in this very important and surprising in the sense of the alignment 5-4 decision, the Supreme Court reversed the Maryland court and held that no warrant is needed in order to seize DNA from people on arrest.

ROSENSo this decision validates not only Maryland but also the 28 states that have laws allowing the seizure of the DNA of arrestees, and it opens the door that the remaining 22 states will pass similar laws in the future.

NNAMDIAnd settling a constitutional dispute about the Fourth Amendment. Before we get into whether or not you agree with how the court ruled, Jeffrey, what aspects of the law were the ones that sparked this debate?

ROSENWell, the main question was, of course, whether the police need a warrant before they can seize DNA. In many other cases, the Supreme Court has said that the warrant requirement cannot be waived if the police simply want to engage in ordinary criminal law enforcement. In other words, the purpose of the search is to solve the crime under suspicion or to solve other crimes you generally need a warrant.

ROSENIt's only when there's a special need independent of law enforcement, like ensuring the immediate safety of people around the crime scene, that the warrant requirement is waived. In this case, the majority, led by Justice Anthony Kennedy, held that effectively there was a special need. There was no warrant required because the DNA was merely being used to identify Alonzo King to prove that he was who he said he was, and that's important because proving that he is who he says he was would ensure that they didn't have the wrong guy, or that if he were especially dangerous, maybe he could be, you know, denied bail.

ROSENThe dissent by Justice Scalia vigorously objected to this characterization. Justice Scalia said it's obvious that the purpose of this law was not identification of criminals. It was to solve cold cases. We know this because the Maryland law itself said that its purpose was to be used in criminal law enforcement, and that's the reason that Justice Samuel Alito had said at the oral argument that this is perhaps the most important criminal procedure case in a decade because the future of DNA databases was at stake, and the whole point of DNA databases is to solve cold cases.

ROSENSo Scalia was quite, shall we say, passionate in his rejection of the entire premise of the majority, namely the real purpose of this was to identify suspects, and he stressed this wasn't used for identification. The DNA wasn't even entered into the database until three days after arrest by which point everyone knew who Alonzo King was. And by the time it was sent to the federal database, it was actually set along with his name, so this is not like fingerprinting, said Justice Scalia, or not even like other ways of identifying suspects used in the past.

ROSENIt was purely an effort to solve unsolved crimes, and Scalia said, "Until now, the court has required a warrant for that kind of ordinary law enforcement objective.

NNAMDIIn case you're just joining us, Jeffrey Rosen is legal affairs editor at The New Republic and a professor at the George Washington University Law School. He joins us by phone from Philadelphia. In studio with us is Stephen Mercer, chief attorney in the Forensics Division of the Maryland Public Defender's Office. Stephen, you've said this decision could set the stage for a universal DNA database set up of all citizens. Why do you feel that way?

MERCERKojo, the Fourth Amendment forbids searching a person for evidence of a crime when there's no basis for believing the person in guilty of the crime or is in possession of incriminating evidence. That's a bedrock principle that our society has always valued above the efficiency of solving a crime. And there was no noninvestigative motive to conduct a search in this case. As Jeff Rosen had explained, suspicionless searches can only occur when there is some other justification for it beyond the ordinary needs of law enforcement.

MERCERYesterday, in The Washington Post, the attorney general of Maryland admits to the flimflam in this case. Justice Kennedy's claim that DNA was being collected from arrestees to identify them only makes sense if you don't know what's going on in Maryland and don't understand how the FBI's cold case database works. In The Post yesterday, Atty. Gen. Gansler admitted...

NNAMDIDoug Gansler of Maryland.

MERCER...it's not about identification. It's about solving crimes.

NNAMDIYou've also taken issue, Stephen, with those who have compared DNA collection to fingerprints, including, as you just mentioned, Doug Gansler, the state's attorney general. Why do you feel this analogy is a bad one? Allow me to throw in a question of my own. If I don't have -- if I -- if my fingerprints are in no base anyplace at all, how can fingerprints be used to identify me? What's the difference between fingerprints being used as an identifier and DNA being used as an identifier if my fingerprints, like my DNA are not at any database anyplace?

MERCERWell, fingerprints are -- the primary purpose of fingerprints is to confirm or dispel identity, and there's a fingerprint database with over 73 million known fingerprints in it. And when a person is arrested and their fingerprints collected, those fingerprints are collected for the purpose of comparing it to that reference database of fingerprints. And then that confirms or dispels that person's identity so the police know who they're dealing with.

MERCERDNA doesn't work like that. When DNA is collected at the time of arrest -- and just to clarify the timeframe here -- in Maryland, it's not tested for months. And in Mr. King's case, it wasn't tested for over three months. So there was never ever any question about who the court or the police were dealing with. They knew they were dealing with Mr. King. And when they collected his DNA and then later analyzed it three months down the road, it wasn't compared to a databank of known DNA profiles.

MERCERIt was compared only to unsolved crime DNA, which confirms that this is for investigatory purposes and not for identification. Fingerprints are far superior biometric identifier than DNA. There are important built-in safeguards with fingerprints. A fingerprint when collected, all the information is exhausted. Fingerprints would be very difficult to surreptitiously collect from individuals.

MERCERSo a person generally has to be taken into custody, which means that there's going to be some judicial scrutiny over the collection of those fingerprints. Those safeguards aren't present with DNA. DNA can be surreptitiously collected. And when it is analyzed, there is the person's entire genetic information that is retained, and so it's there for future testing.

NNAMDIWhat do you find are the typical experiences of people who try to get their DNA expunged from the databases? It's my understanding that if suspects are not convicted, their DNA can be destroyed, somehow disposed of.

MERCERThere is in the Maryland statute there is an automatic expungement provision if a person is acquitted of the offense that they're arrested for and their DNA is taken in connection with. But that is not uniform across other states. It -- and there's always the question once that DNA profile is generated and it is placed into a national database and shared with other states, whether in fact there really is expungement in a practical sense.

NNAMDI800-433-8850 is the number to call. What concerns do you have about the ability of law enforcement to collect DNA evidence from those charged with but not yet convicted of criminal -- of crimes and potentially link them to crimes in unrelated cases? 800-433-8850. Jeffrey Rosen is still with us. He is the president of the National Constitution Center in Philadelphia, which explains his presence in Philadelphia today.

NNAMDIHe's also legal affairs editor at The New Republic and professor at the George Washington University Law School. Jeffrey, you were particularly taken by the dissent that Justice Anthony Scalia read from the bench this week. You wrote that it was one of the best Fourth Amendment dissents ever written. Why? What was so striking to you about it?

ROSENIt was a wonderful dissent, and it was a great day for civil liberty. Many of Justice Scalia's greatest opinions have involved his passionate defense of the Fourth Amendment. He's insisted that the police need a warrant before they can use thermal imaging devices or track suspects' movements. But here, he was just especially eloquent about the fact that the framers of the Constitution who had a horror of general warrants or warrants that didn't particularly specify the place to be searched or the thing to be seized would be horrified by the idea that such a substantial invasion of privacy could be visited on people merely because they've been arrested.

ROSENAnd Scalia combined his usual deep historical analysis. He had this wonderful memorable line which he read from the bench at the end where he said that the construct -- perhaps the construction of such a genetic panoptic is wise, but I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection. What a vivid and unforgettable image.

ROSENBut in addition to the powerful imagery, he's just so meticulous analytically about knocking down the premises of the majority's case, which is that this was designed to be used for identification and not solving cold cases. And Stephen Mercer has given additional reasons why that wasn't the case. But Scalia just seemed indignant by the fact that this was a made-up reason. In one footnote, he even challenges his colleagues and say why don't just come out and say that they think that the police can take genetic information merely to solve cold cases? It's because they don't believe it so they've got to come up with this imaginary reason. There are two...

NNAMDIAppropriately enough. Joining us by phone now is Angela Alsobrooks, Maryland state's attorney for Prince George's County. Angela Alsobrooks, thank you for joining us.

STATE ATTY. ANGELA ALSOBROOKSThank you so much for having me.

NNAMDIWhat do you make of Justice Scalia's assertion about the stakes of this ruling that the premise of the law is a fiction that the purpose of DNA testing is to identify suspects rather than solve cold cases?

ALSOBROOKSWell, you know what, it turns out that it is still, I think, very significant that we can use this DNA for identification. It's not always made up. There are many, many instances where we have individuals, for example, in our jails. So it turns out to be a useful tool because we do have difficulty in particular cases identifying individuals who we've had in the jail for some number of time, and they have -- and was not been able to properly identify them. And so this is useful to us. And I think...

NNAMDIHow could you not identify them by fingerprints?

ALSOBROOKSWell, you know what, there are particular instances where we wanna be, you know, abundantly clear about who we have, and DNA turns out to be the best tool we have to properly identify. You can identify, of course, yes, through fingerprints in some instances. But there are times where we believe the DNA is the best tool that we have.

ALSOBROOKSYou know, when we think about all of this, the cold cases that -- I know that there has been much said about the fact that does not just identify -- used for identification but to solve cold cases. But let's not undervalue that either. We have been able, through this, to be able to identify in cold cases, to solve cold cases recently the DNA to solve in the most serious cases in homicides that we've had and some rape that we've had. And so it really is a very useful tool both for identification...

NNAMDIAnd I guess what Justice Scalia and Stephen Mercer and Jeffrey Rosen all seems to be saying is why didn't you just come out and say so? That's what -- that's the real reason that you wanted this.

ALSOBROOKSYou know what, I think there is an argument to be made for that. But, again, I think this depends on where you fall on, who decided this. Is this your family member who has been murdered or raped? Then you find that collecting this sort of information to identify folks for cold cases becomes extremely useful.

MERCERKojo, could I...

NNAMDIJeffrey -- oh, please, Stephen Mercer.

MERCERWith all due respect to Ms. Alsobrooks, the SCOTUS database and DNA databases simply do not function as a tool to identify a person, for example, like an inmate in a jail. When a person's DNA profile is developed and it's placed into the database, it's not searched against known DNA profiles that have pictures or names of persons. It's only searched against the unsolved crime index. There is no names there.

MERCERAnd, in fact, when the person's profile is placed into the database, it's not like a fingerprint. It doesn't include a photograph. It doesn't include the person's name. It is intentionally designed solely to be used for investigating crimes. And that's what this whole decision hinges on is Justice Kennedy's claim that it's being used to identify people when it clearly isn't.

NNAMDIAllow me to go to Harry in Chevy Chase, Md. Harry, you're on the air. Go ahead, please.

HARRYHi. My experience has been that -- and I would like the panel to address these two points. Number one, photographs. Photographs taken of arrested people are frequently used in photographic lineups having nothing to do with identifying the person, and there's never been any objection to that successfully made.

HARRYAnd second of all, I don't really follow and don't think there is any intellectual honesty and, perhaps the panel would address this, as to the different uses of fingerprints and DNA. Fingerprints are often used in addition for immediate identification. They're used to identify people who have committed other unsolved crimes. So if the panel could address those two points, I appreciate it.

NNAMDIFirst, you, Jeffrey Rosen.

ROSENYes. On the photograph point, Justice Scalia addresses it explicitly. He said, is not taking DNA samples the same as taking a person's photograph? No, he responds, because that's not a Fourth Amendment search at all. It doesn't involve a physical intrusion onto the person, and we've never held that merely taking a person's photograph invades any recognized expectation of privacy. And so Scalia really stresses, you don't have an expectation that your picture will be taken.

ROSENBut he emphasizes that the potential privacy invasion of DNA searching is great. The University of Connecticut, for example, recently announced that it would study the DNA of the Sandy Hook shooter, Adam Lanza, to see if he had a genetic predisposition to commit extreme violence. And Justice Scalia suggested that although Maryland claims that at the moment it's only using this to see whether, you know, people are linked to unsolved crimes.

ROSENIn the future, unlike a photograph, the genetic information might be used to predict our medical history, our predisposition to violence, even, you know, the likelihood that we are to be terrorists, and there are no privacy protections...

NNAMDIAre you saying that what Justice Scalia is saying is that the photograph does not involve any element of search, that fingerprints do not involve any element of search because they don't involve element of intrusion and the DNA does?

ROSENThat's exactly right. The first two photographs and fingerprints don't involve a physical intrusion onto the person to put cotton swab in someone's mouth and physically to intrude into the body, Scalia says, is different. In addition to that intrusion, the physical intrusion, there is the possibility of revealing far more private information in the genetic information itself...

NNAMDITo which...

ROSEN...even than a photograph or fingerprint would.

NNAMDITo which you say what, Angela Alsobrooks?

ALSOBROOKSI'm sorry.

NNAMDII was asking what would be your response to that.

ALSOBROOKSWell, you know, the thing is -- I think one of the points we have to remember is that the Fourth Amendment does not provide against all intrusions but only against intrusions that are not justified under the circumstances. So I think that's a point that we should also consider is that whether in these cases the intrusion is justified. I know that what we're talking about is these intrusions.

ALSOBROOKSAnd I think that the court has decided that this DNA, under these circumstances, because we're talking about serious felony cases, not just any case. But they're deciding that in the most serious cases that this sort of intrusion is justified.

NNAMDIWe're running out of time very quickly, but here's Linda in Takoma Park. Linda, you're on the air. Go ahead, please.

LINDAHi. I was a victim of an assault, and they caught the wrong person, 17 or 18. They kept him in jail for about six months. They didn't take a DNA sample from him. But later on, they found the person that had committed the assault because he was a convicted criminal. They had his DNA on file. They had to let the first person go. I feel haunted by this. If they had taken this young man's DNA sample when he was arrested, they would have had to let him go pretty quickly.

NNAMDIAnd, Stephen Mercer, I guess because most members of the public don't understand the finer points of the Constitution, the difference between being intrusion -- intruding and not intruding, I suspect a lot of people feel like DNA, and they say, hey, if its' really helping to catch real criminals, which is what DNA seems to do, or to exonerate people who are innocent, what's wrong with it?

MERCERWell, the -- I think it's important to note that Justice Kennedy's opinion rejected the efficiency argument, and that was what the government opened their argument with back in February to the Supreme Court, was that this works. Let us do it. It solves crime. No doubt it solves crime, but if the measure of reasonableness is gonna simply be whether a crime has been successfully solved, then there's no Fourth Amendment.

MERCERAnd, you know, the Fourth Amendment has a bedrock principle, simply that there can't be a physical intrusion to gather evidence of a crime unless there's reason to believe the person committed the crime. That's -- that is a part of our society. That is a ban on the precise sort of general warrant that we are seeing in modern day that's represented by these DNA arrestee expansions. You know, in Maryland, we had over 33,000 DNA samples collected over the last four years. Over 21,000 of those were from African-Americans.

MERCERIf you analyze the data from the state, only 14 convictions occurred that would not have occurred if it was just a convicted offender database. So you put 14 in the numerator, 33,000 in the denominator, and what you have is a modern-day equivalent of general warrants.

NNAMDIGot to go quickly, but, Jeffrey Rosen, what did we learn about the court from this ruling?

ROSENWell, what's most significant is that Justice Breyer joined the conservatives. He was the tie-breaking vote. He often votes with the conservatives in criminal procedure cases. Had he voted the other way, then the case would have come out the other way and warrants would have been required. So we also learned that Justice Scalia really cares about the Fourth Amendment and will join the liberals in cases where he feels the basic fundamental constitutional values are implicated.

ALSOBROOKSAnd finally, Angela Alsobrooks, now that this is been allowed t stand, what do you feel that you're going to be able to do?

ALSOBROOKSWell, we'll be able to continue to solve some of the cold cases that become, you know, life-changing for many of our families, rape cases and the cases of -- homicide cases. And it is a very, very powerful tool. We just secured a conviction in the fall for a case where we secured this DNA in 2011, in a cold case for a family where the case stated 10 years. This is powerful -- a powerful tool, and it will bring healing to a great many families and victims.

NNAMDIAngela Alsobrooks is Maryland state's attorney for Prince George's County. Jeffrey Rosen is legal affairs editor of The New Republic, a professor at George Washington University Law School and president of the National Constitution Center in Philadelphia. And Stephen Mercer is chief attorney in the forensics division of the Maryland Public Defenders Office. Thank you all for joining us. We're gonna take a short break. When we come back, a Washington Post food -- "The Washington Post Cookbook." It only took half a century to get here, but now it's here. I'm Kojo Nnamdi.