A 4th Amendment Outrage: Supreme Court Approves DNA Testing for Arrestees, 5-4

The Supreme Court ruled 5-4 today [Maryland v. King, No. 12-207, June 3, 2013] that when the police have probable cause to arrest somebody, they can take a cheek swab and send the results to a national DNA database, and then ask that the results be used to determine whether the arrestee can be associated with any unsolved crimes for which there is DNA evidence.  Blazing a new trail in the relentless invasion of privacy in our high tech society, the Court rejected Justice Antonin Scalia’s dissenting argument that this result is totally out of line with the founders’ intent in the 4th Amendment, and also that the state of Maryland’s purported justification for such DNA testing is inconsistent with how the DNA sample was handled in this case.

Writing for the Court, Justice Anthony M. Kennedy, Jr. (joined by Chief Justice John Roberts and Justices Clarence Thomas, Stephen Breyer, and Samuel Alito), said that taking a DNA sample from a newly-arrested person is essentially no different from photographing and fingerprinting him or her.  He said that the government has a significant interest in identifying arrestees, and taking a DNA sample is just another way of identifying the individual and minimally intrusive. 

Justice Scalia (joined by Justices Ruth Bader Ginsburg, Sonya Sotomayor and Elena Kagan) argues that DNA is different.  “The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence,” he wrote.  “The prohibition is categorical and without exception; it lies at the heart of the Fourth Amendment.  Whenever this Court has allowed a suspicionless search, it has insisted upon a justifying motive apart from the investigation of crime.  It is obvious that no such noninvestigative motive exists in this case.  The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous.  And the Court’s comparison of Maryland’s DNA searches to other techniques, such as fingerprinting, can seem apt only to those who know no more than today’s opinion has chosen to tell them about how those DNA searches actually work.”

An example of a search of an arrestee that is allowed without any basis for suspicion would be the routine patdown by police to determine if somebody they are arresting has a weapon.  This is allowed for protection of the police officers and others who may come into contact with the arrestee while he or she is detained.

In this case, police arrested Alonzo King for “menacing a group of people with a shotgun.”  As part of the “routine booking procedure,” he was photographed and fingerprinted and, pursuant to a Maryland statute, police took a cheek swab for a DNA sample which, Scalia points out, was not immediately tested to confirm King’s identity, but instead sat in a police lab for weeks before being sent for analysis and then for comparison to a national DNA database of unsolved crimes, where it checked positive for a 6-year-old unsolved rape case.  King was successfully prosecuted for the rape, but the highest appellate court in Maryland reversed his conviction, finding the DNA evidence was  inadmissible under the 4th Amendment, because there was no probable cause for a search of King’s DNA.  As Scalia would point out in his dissent, King’s DNA was not needed to identify him — police knew who he was without that confirmatory evidence — and the DNA evidence was not relevant to the crime for which he was arrested. 

The practice authorized by the majority of the Court today says, in effect, that whenever the police have a reason to arrest somebody, they can take a DNA sample and run it through the unsolved crimes database, trying to pin a crime other than the one for which he was arrested on the arrestee.  It matters not whether the individual was guilty of the crime for which they were arrested.  A totally innocent person who is arrested due to mistaken identity, for example, could be subjected to such a DNA search.  And if the DNA evidence can be used to search the unsolved crime DNA database, why not use it for other reasons? 

Scalia points out that as much as a third of the population is arrested at one time or another (and he might have, but did not, point out that members of racial and ethnic minorities are arrested in much greater proportions due to racial profiling by police), with the result that routine DNA testing of arrestees upon booking will lead to a huge national DNA database in the custody of law enforcement agencies, disproportionately made up of DNA information of minorities, that might be put to many different uses investigating not just criminal activity.  One might imagine it being put to political use, and various regulatory uses as well.  Such a database, for example, could end up with the DNA records of political demonstrators caught up in unconstitutional “sweeps”, such as the mass arrests of political demonstrators during the Republican National Convention held in New York City in 2004.  Down this road lies “Big Brotherism” of the worst sort, at least potentially.

Justice Scalia is accustomed to uttering apocalyptic predictions when writing his dissents, but for once I think he is not far wrong.  His peroration:  “Make no mistake about it: As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.”  He also pointed out that taking King’s DNA at the time of his arrest was really unnecessary.  He was arrested while engaged in criminal activity, so he was likely to either plead guilty or be convicted, and he actually was convicted on the menacing offense.  Scalia has no objection to taking DNA samples from people after they are convicted. This means that the police would eventually have gotten King’s DNA, would have then been able to run the database search, and would then have uncovered the evidence leading to his subsequent rape conviction.  All kosher, since upon being adjudicated a felon, an individual’s liberty interests are circumscribed and there is reason to search.   Scalia’s concern is for the innocent person who is arrested and subjected to this kind of search in the absence of any determination by a tribunal that they have actually engaged in criminal activity.  Scalia points out that the Maryland statute that authorizes these DNA searches “manages to burden uniquely the sole group for whom the Fourth Amendment’s protections ought to be most jealously guarded: people who are innocent of the State’s accusations.” 

Scalia concludes with the hope that “today’s incursion upon the Fourth Amendment. . . will some day be repudiated.”  Amen.

But, in the meantime, civil libertarians should get to work seeking repeal of statutes like the Maryland DNA testing statute involved in this case, and seeking laws banning such DNA testing in jurisdictions where they don’t now exist.  We already have a federal law banning discrimination based on genetic information, which was enacted during the Bush Administration but has yet to be subjected to any extensive interpretation in the courts.  Perhaps Congress should amend this law to address directly the use of DNA testing by law enforcement officials.

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