Supreme Court Justice Antonin Scalia. (photo: AP)
04 June 13
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Supreme Court ruled in a 5-4 decision Monday that police may take a DNA
swab from people arrested for crimes without first getting a warrant to
do so. In an unusual twist, the court's conservative firebrand, Antonin
Scalia, joined three of his liberal colleagues in a scathing dissent that warns the court's decision paves the way for the creation of an invasive police state.
Scalia called the decision's scope "vast" and "scary,"
and said the DNA collection is an unequivocal violation of Americans'
Fourth Amendment right to be free from "unreasonable searches and
seizures" of their bodies and homes.
"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 wrote. Scalia was joined by Ruth Bader
Ginsburg, Elena Kagan and Sonia Sotomayor, three of the court's
liberals, in his dissent.
Nearly 30 states have laws allowing them to collect DNA from people who have been arrested.
The Supreme Court case involved Alonzo King, whose DNA
sample was taken by Maryland police after he was arrested for assault
in 2009. Months after his arrest, police found that King's DNA sample
matched DNA from a rape kit taken six years earlier from a 53-year-old
woman raped at gunpoint in her home by an intruder. King was convicted
of that rape, but a state appeals court threw out the conviction, ruling
that police could not take a DNA sample from someone who is presumed
innocent of a crime simply to fish around for other possible crimes he
or she may have committed.
The Supreme Court's majority decided that DNA testing
is much like fingerprinting, which has long been considered a routine
part of the arrest process because it helps authorities verify the
identity of a suspected criminal. Justice Anthony Kennedy - joined by
John Roberts, Samuel Alito, Clarence Thomas and Stephen Breyer - wrote
that police do not need a warrant to obtain a DNA sample because it is a
"legitimate police booking procedure" that simply helps authorities
determine the identify of their suspect and find out whether he or she
has been convicted of committing other crimes.
Scalia blasted the majority for categorizing DNA
testing as a way to identify suspected criminals in his trademark
caustic prose, saying their logic "taxes the credulity of the
credulous." He pointed out that King's DNA sample was not sent to the
DNA matching database until August of 2009 - four months after his
arrest and long after he was arraigned - which cast doubt on the claim
that authorities needed it to help verify his identity. Fingerprints, on
the other hand, can be run against convict and other databases in under
half an hour, on average, Scalia noted.
Scalia argued that the primary purpose of the DNA swab
is to find evidence of other criminal wrongdoing, which he compared to
officers showing up at a house without probable cause or a warrant and
rummaging around. Scalia wrote that body searches at the time of an
arrest are valid because police are looking for evidence relevant to the
crime that a person is suspected of committing. DNA sampling takes that
a step further by attempting to find evidence of other wrongdoing that
is not related to the crime the person has been arrested for, Scalia
argued.
That tactic may help solve more crimes, but is an overreach of police power, he concluded.
"Solving unsolved crimes is a noble objective, but it
occupies a lower place in the American pantheon of noble objectives than
the protection of our people from suspicionless law-enforcement
searches. The Fourth Amendment must prevail," Scalia writes.
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