OFF THE WIRE
The
Supreme Court on Monday upheld the police practice of taking DNA
samples from people who have been arrested but not convicted of a crime,
ruling that it amounts to the 21st century version of fingerprinting.
The
ruling was 5-4. Justice Antonin Scalia, a conservative, joined three of
the court’s more liberal members — Justices Ruth Bader Ginsburg, Sonia
Sotomayor and Elena Kagan — in dissenting.
The five justices in
the majority ruled that DNA sampling, after an arrest “for a serious
offense” and when officers “bring the suspect to the station to be
detained in custody,” does not violate the Fourth Amendment’s
prohibition of unreasonable searches.
Under those specifications, the court said, “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.”
Scalia’s siding with the liberals
reflects his growing concern over the past five years about privacy,
said Tom Goldstein, the publisher of SCOTUSblog, who teaches at Harvard
Law School and is a Supreme Court analyst for NBC News.
“We’ve
seen several decisions where he has joined more liberal justices to find
greater privacy rights,” he said in an interview. “It’s not a big
surprise in recent years, but it is a surprise in the sense of his
general conservatism.”
While a cheek swab does constitute a search
under the law, the court noted that it requires “but a light touch” and
no surgical intrusion — a critical point, the court said, in
determining whether it was reasonable.
At an oral argument in
February, Justice Samuel Alito called the question perhaps the most
important criminal procedure case the court had taken up in decades.
Twenty-eight states and the federal government take DNA swabs from
people under arrest before they can be tried.
The case arose from
the arrest of a 26-year-old Maryland man, Alonzo King, in 2009 on a
charge of second-degree assault. The police took a swab of DNA from his
cheek, ran it through a database and matched it to an unsolved rape from
six years earlier.
King was convicted of rape and sentenced to
life in prison. He pleaded guilty to a misdemeanor for the 2009 assault.
The Maryland Court of Appeals later reversed the rape conviction on the
grounds that the DNA sample was an unreasonable search.
“Today’s
judgment will, to be sure, have the beneficial effect of solving more
crimes,” Scalia wrote in his dissent. “Then again, so would the taking
of DNA samples from anyone who flies on an airplane.”
In an
allusion to the technique of taking a swab from the cheek, Scalia wrote:
“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.”
The
Maryland law restricts DNA swabbing to people arrested for certain
violent crimes, but justices, including Chief Justice John Roberts,
worried during the oral argument that other laws might not be so
restrictive. Roberts wondered why they couldn’t be applied to simple
traffic stops.
Roberts voted with the majority Monday, as did
Alito, who tipped his hand at the oral argument by saying that DNA
sampling “involves a very minimal intrusion on personal privacy.”
Justice
Anthony Kennedy, considered the court’s swing vote, delivered the
opinion of the court. Justices Clarence Thomas, who usually votes with
the court’s conservatives, and Stephen Breyer, who generally votes with
the liberals, also voted with the majority.
The court’s majority
ruling also said that the government has an interesting in identifying a
person under arrest so that a judge can make an informed decision about
granting bail. Today, it takes as long as two and a half weeks for DNA
tests to come back, but lawyers noted before the court that instant DNA
testing is not far off.
