There’s something touchingly amusing in Supreme Court Justice Antonin Scalia adamantly defending the rights of the criminally accused, a group he typically has no sympathy for in other contexts.
But there he was last week, arguing with authoritative condescension that letting police take DNA mouth swabs of arrested suspects is offensive to the Fourth Amendment and not the harmless equivalent of fingerprinting, as Justice Anthony Kennedy had written for the court’s 5-4 majority in Maryland v. King.
In what might seem like an odd alignment, Scalia was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, who often — though not necessarily accurately — are broad-brushed as members of the court’s “liberal” wing.
The majority was filled out by supposed liberal Justice Stephen Breyer and supposed conservatives Chief Justice John Roberts and Justices Clarence Thomas and Samuel Alito.
Who was on which side is not as interesting, or perplexing, as the dynamics of what the court was wrestling with. It always seemed simpler on CSI.
Maryland — like more than half the states and federal law enforcement — allows police to swab the cheeks of people who are being booked into jail after arrest. In Maryland, the practice involves people suspected of violent crimes or burglary. While an arrest would have been made based on probable cause, no separate warrant is required to take the DNA sample.
Maryland’s highest appeals court struck down the practice as an unreasonable search. But the Supreme Court said the opposite.
Kennedy called DNA swabbing similar to taking booking fingerprints or photos and less intrusive than taking blood from a drunken-driving suspect. Besides that, it helps make sure police have picked up the right person. And by running the DNA through the FBI’s CODIS database, they can determine whether they have a violent criminal who shouldn’t be let out on bail.
Comparing DNA with other records, he said, is no different from matching an arrestee’s face to a wanted poster, matching tattoos to known gang symbols or matching an arrestee’s fingerprints to those recovered from a crime scene.
Scalia wasn’t convinced.
Maryland wasn’t interested in identifying the suspect it had but in solving old cases, he argued. In fact, police had charged Alonzo King with first- and second-degree assault for threatening a group of people with a shotgun.
It turned out his DNA matched a sample in the FBI database linking him to the 2003 rape of a Maryland woman in her home. He was convicted of that crime, and that’s what he was challenging.
In his melodramatic fashion, Scalia defined Fourth Amendment protections in absolute terms and offered this quotable gem: “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.”
Commentators much smarter than me have pointed out that Scalia’s wrong about suspicionless searches being banned: We allow them all the time — at the airport, at sobriety checkpoints, to get into federal buildings, to work in certain industries, etc. They’re done not just to find bad actors but to prevent people with bad intentions from carrying them out.
That doesn’t make Scalia entirely wrong, though. As he explained, DNA had little to do with properly identifying someone under arrest, because the data can’t go into the Maryland system until after an arraignment. King’s DNA was useful only for solving a cold case.
But does it make the swab an unreasonable search? Don’t we want police catching people who’ve committed crimes and harmed other people?
On the other hand, what stops police from taking DNA from everyone down to the kid picked up for speeding and keeping it in a computer system for years?
The notion of a “reasonable” search isn’t nearly as straightforward as we might wish.
Linda P. Campbell is a columnist and editorial writer for the Fort Worth Star-Telegram. Distributed by MCT.
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