In a case that criminal defense lawyers here in Atlanta and around the country need to all read, yesterday the United States Supreme Court ruled that the police can take DNA samples from people who are merely arrested for serious crimes, and that the Fourth Amendment to the United States Constitution does not prohibit this practice. The decision can be found here. I predicted in a previous post that this would be a close decision, and it was: 5-4. One major surprise was that Justice Breyer, normally a friend of personal liberties, sided with the majority in ruling that warrantless extraction of DNA samples passes constitutional scrutiny. The dissent was sort of “Nino and the Ladies”, with Justice Antonin Scalia being joined by the three female Justices, Sotomayor, Ginsberg and Kagan.
Recall that this case involved Alonzo King, who was arrested in Maryland for menacing a crowd with a gun. Under Maryland law, the police extracted a DNA swab which was later sent to and made a part of a national database. Sometime later still, King’s DNA was matched to a rape investigation from six years earlier. The Maryland Supreme Court threw out King’s conviction because the DNA was extracted without a warrant nor was there any individualized suspicion that justified taking the DNA sample. On Monday, the U.S. Supreme Court reversed the Maryland judges, and instead compared the process of taking DNA with other activities during the criminal booking process such as photographing and fingerprinting suspects when they are booked.
Justice Anthony Kennedy, writing for the five members in the majority of the court, noted that while taking a DNA sample is a search, the Fourth Amendment bars unreasonable searches. Kennedy said that a “gentle” swabbing of the cheek is not unreasonable. Nor, he said, is it unreasonable to use DNA to ascertain whether the arrestee has a criminal history that would make him a flight risk or a risk to the public if released on bail. Because Maryland’s law was restricted to warrantless DNA extraction only when a person is arrested for a “serious” crime, and because the law bars any collection or use of DNA to detect private genetic information, the majority found that DNA collection is a legitimate booking procedure.
In dissent, Justice Scalia, a staunch conservative, issued a rare oral dissent from the bench. He said the court has never held that the government can conduct general suspicionless searches of anyone it arrests, and by doing so in this opinion, the court, he said, casts aside “a bedrock rule of Fourth Amendment law.” “Make no mistake about it,” he warned. “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 is a classic example of a “slippery slope”, or the “camel with his nose in the tent.” in other words, once a process begins, it is very difficult, if not impossible, to stop it. I tend to agree with Justice Scalia that this is just the beginning of the creation of a national database where all of our DNA will be held, compared, used and possibly mis-used. This case reminds me why all criminal defense lawyers need to fight ceaselessly for the rights of our client, for when they can do such things to “criminals”, it is only a short step before they doe these things to the rest of us.