Ready to give up a little piece of yourself to the government? If not, pay close attention to the mind-boggling decision the Supreme Court just issued on the right of law enforcement to collect DNA samples without a warrant.
The case the court was reviewing came from the Maryland Court of Appeals. In 2009, Alonzo King was arrested on assault charges. Three days after his arrest?including booking, fingerprinting, and photographing?police took a cheek swab of his DNA without seeking a warrant linking it to a specific crime. By submitting that sample to the federal DNA data base, authorities connected King to a rape six years earlier. He was subsequently convicted of that rape and sentenced to life in prison.
Sounds good so far, right? Rapists and murderers can be identified and put behind bars where they belong.
The?Maryland Court of Appeals?reversed King’s conviction. The question presented to the court by the defense was:
Whether the Fourth Amendment permits the warrantless collection and analysis of DNA from a person who has been arrested for, but not convicted of, a criminal offense, solely for use in investigating other offenses for which there is no individualized suspicion.
The Maryland court decided that the protections against unreasonable searches and seizures afforded to King by the Fourth Amendment were violated, but gave the state time to appeal before stopping DNA testing. Twenty-eight other states and the federal government also use automatic testing and each had a stake in the outcome.
On Monday, the Supreme Court’s final ruling on the case made for some odd bedfellows. The majority affirmed the right to warrantless testing. It consisted of three conservative justices?John Roberts, Samuel Alito, and Clarence Thomas–plus centrist Stephen Breyer and?swing voter Anthony Kennedy, who wrote the majority opinion. In that opinion, Kennedy wrote:
DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure. Taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.
Sounds ?reasonable? until one reads the scathing dissenting opinion, written by no other than?uber-conservative, Antonin Scalia. Scalia joined the three liberal female justices?Ruth Bader Ginsberg, Sonia Sotomayor, and Elena Kagan?in the dissent, with obvious concern for violations of privacy. He wrote:
Make no mistake about it: because of today’s decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason. This will solve some extra crimes, to be sure. But so would taking your DNA whenever you fly on an airplane ? surely the TSA must know the ?identity? of the flying public. For that matter, so would taking your children’s DNA when they start public school.
It may be wise, as the Court obviously believes, to make the Leviathan all-seeing, so that he may protect us all the better. But the proud men who wrote the charter of our liberties would not have been so eager to open their mouths for royal inspection.
Unlike fingerprinting and photographs, which provide identifying images, DNA is actual property?but property that can send law enforcement on a fishing expedition. In other words, the results of DNA testing don’t have to be linked to a particular crime. The Supreme Court’s decision does say, in wording that reflects Maryland law, that the use of testing must be limited to suspects arrested for ?serious offenses?, but fails to define what constitutes a serious offense. Scalia calls that a senseless distinction.
The legal director of the American Civil Liberties Union (ACLU),?Steven R. Shapiro, backs Scalia. In response to the decision, he said:
Today’s decision creates a gaping new exception to the Fourth Amendment. As Justice Scalia’s dissent convincingly demonstrates, DNA testing of arrestees has little to do with identification and everything to do with solving unresolved crimes. While no one disputes the importance of that interest, the Fourth Amendment has long been understood to mean that the police cannot search for evidence of a crime ? and all nine justices agreed that DNA testing is a search ? without individualized suspicion. Today’s decision eliminates that crucial safeguard.
When the ACLU and Justice Scalia are on the same side of an issue, it’s time for America to pay attention. This data-gathering is already occurring on a widespread basis and is probably the ultimate invasion of privacy. Either we pay attention to the state laws that allow it, or we prepare to ?open wide.?
I’d be delighted if you joined me on?Facebook.
Edited/Published by: SB