In a 5-4 decision the Supreme Court ruled that Maryland's DNA Collection Act was constitutional. ScotusBlog has full info on the case and its background.
From the NYT:
The federal government and 28 states authorize the practice, and law enforcement officials say it is a valuable tool for investigating unsolved crimes. But the court said the testing was justified by a different reason: to identify the suspect in custody.
“When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody,” Justice Anthony M. Kennedy wrote for the majority, “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.”
A little detail about the case here:
Maryland v. King, No. 12-207, arose from the collection of DNA in 2009 from Alonzo Jay King Jr. after his arrest on assault charges in Wicomico County, Md. His DNA profile, obtained by swabbing his cheek, matched evidence from a 2003 rape case, and he was convicted of that crime.
The Maryland Court of Appeals ruled that a state law authorizing DNA collection from people who had been arrested but not yet convicted violated the Fourth Amendment’s prohibition of unreasonable searches.
Justice Kennedy wrote in the majority opinion that the “quick and painless” swabbing procedure was a search under the Fourth Amendment, meaning it had to be justified as reasonable under the circumstances. It was, he said, given “the need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody.”Such identification, he said, “is no different than matching an arrestee’s face to a wanted poster of a previously unidentified suspect; or matching tattoos to known gang members to reveal a criminal affiliation; or matching the arrestee’s fingerprints to those recovered from a crime scene.”
The information retrieved through DNA testing as performed by law enforcement officials is limited, Justice Kennedy wrote, and whether “the testing at issue in this case reveals any private medical information at all is open to dispute.”
Antonin Scalia wrote the dissent and questioned the purpose of collecting the DNA swab:
Justice Antonin Scalia summarized his dissent from the bench, a rare move signaling deep disagreement. He accused the majority of an unsuccessful sleight of hand, one that “taxes the credulity of the credulous.” The point of DNA testing as it is actually practiced, he said, is to solve cold cases, not to identify the suspect in custody.
But the Fourth Amendment forbids searches without reasonable suspicion to gather evidence about an unrelated crime, he said, a point the majority did not dispute. “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,” Justice Scalia said from the bench.
The comments flow:
Akhil Reed Amar and Neal K. Katyal think the decision was correct and that Scalia got his history wrong:
Akhil Reed Amar and Neal K. Katyal think the decision was correct and that Scalia got his history wrong:
His opinion opened with these lines: “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. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment.”
But the Fourth Amendment’s text is not nearly so simple as he makes it out to be. It merely requires that all searches and seizures be not “unreasonable.” Its words do not distinguish between intrusions seeking “evidence of crime” and other sorts of intrusions — say, to collect revenue, or preserve public safety.
Justice Scalia failed to identify even one source from the founders articulating the ultraprecise rule that he claims is the central meaning of the Fourth Amendment. And his version of the Fourth Amendment would lead to absurd results.
Scalia concludes his inspiring dissent by noting the tremendous stakes in the case, and the dangers posed by the Court’s uncritical approval of DNA testing of arrestees—a decision that will affect the “nearly one-third of Americans [who] will be arrested for some offense by age 23.” He predicts that although “the Court disguises the vast (and scary) scope of its holding by promising a limitation it cannot deliver”—namely, that DNA testing will be limited to those arrested for serious crimes such as felonies—the logic of the decision would, in fact, allow DNA tests to “identify” those arrested for traffic offenses. He then directly addresses American citizens, in rousing words that he read from the bench: "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.” And he ends with one of his most memorable images: “Perhaps the construction of such a genetic panopticon 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.
