[JURIST] The US Supreme Court [official website] heard oral arguments [day call, PDF] in two cases [JURIST report] on Tuesday. In Maryland v. King [transcript, PDF] the court heard arguments on whether the Fourth Amendment [text] permits states to collect DNA samples from individuals charged with serious crimes, as allowed under Maryland’s DNA Collection Act [text, PDF]. The Chief Deputy Attorney General of Maryland argued, “The cornerstone of our argument is that when an individual is taken into custody, an individual is arrested on a probable cause, on a probable cause arrest, that person by virtue of being in that class of individuals whose conduct has led the police to arrest him on—based on probable cause surrenders a substantial amount of liberty and privacy.” The US Solicitor General also argued in favor of Maryland: “I think that it is appropriately viewed as something that the government has a compelling interest in doing once a person has been arrested, and that is, knowing who that person is, which includes knowing what the person has done. And DNA does that in a far more powerful way than fingerprints have done.” The attorney for Alonzo King argued that the Court should extend Samson v. California and US v. Knights [opinions, which both deal with the liberty interests of parolees, to those merely arrested of a crime.

[T]hat it could be taken at least while he is still under the supervision of the State, because after all, both Samson and Knights were cases in which the individual was still under State supervision. That is to say, we’re not arguing that at the point of conviction, that the resulting lessened expectation of privacy extends in perpetuity as, say, a firearm or felon disability does. But what we are arguing is that—to look at this Court’s cases in Samson and Knights, they both centrally depended on the proposition that it is the fact of conviction that deprives an individual of the full protections of the Fourth Amendment.

In July Chief Justice John Roberts issued a temporary stay [JURIST report] blocking a ruling by the Maryland Court of Appeals [official website] that barred police from collecting DNA from criminal suspects without a warrant, allowing the law to remain in force pending appeal.

The court also heard arguments in Peugh v. United States [transcript, PDF] to determine whether a court violated the US Constitution’s Ex Post Facto Clause [Cornell LII backgrounder] when it applied the US Sentencing Guidelines [materials] at the time of the sentencing rather than at the time of the offense. The attorney for Marvin Peugh argued for retroactive application of the guidelines, so Peugh would be sentenced under the 1998 range of 37 to 46 months for his crime, rather than the 2009 range of 70 to 87 months.

Retroactive application of harsher guidelines passed after the offense violates the Ex Post Facto Clause if it—if it creates a significant risk of increased punishment. Now, the Government here objects that a guidelines amendment does not change the law, but that is incorrect. The guidelines are legislative rules that define a term of a mandatory statute, mainly subsection (a)(4) of section … 18 USC 3553. That provision requires the district court to consider the guidelines sentencing range, and I’ll quote, “established for the applicable category of offense committed by the applicable category of offender.” So in 1998, the guide—that statute, the law mandated that the district court shall consider, as applied to Peugh’s offense and offender category a sentencing range of 37 to 46 months.

The Solicitor General argued that under Miller v. Florida [opinion] that an Ex Post Facto Law has to change “the legal consequences of a prior act” and as the US Sentencing Guidelines were merely amended and updated over time, it does not change the legal consequences of the crime.