Another 5-4 decision on a major political issue at the Supreme Court might lead one to believe that this is yet another example of right/left polarization. In today’s ruling overturning an appellate decision that blocked collection of DNA at the time of arrest, though, the split is unusual, and the ruling perhaps even more controversial as a result:
A sharply divided Supreme Court on Monday said police can continue to take DNA from people they arrest without getting a warrant. The court’s five-justice majority said DNA testing was a legitimate police arrest procedure, like fingerprinting.
“Taking and analyzing a cheek swab of the arrestee DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment,” Justice Anthony Kennedy wrote for the court’s five-justice majority. …
“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,” conservative Justice Antonin Scalia said in a sharp dissent which he read aloud in the courtroom.
So the conservatives broke for individual rights, and the liberals for police powers? Not exactly:
Kennedy wrote the decision, and was joined by Chief Justice John Roberts and Justices Samuel Alito, Clarence Thomas and Stephen Breyer. Scalia was joined in his dissent by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.
That’s noteworthy in itself. Kennedy argued that the buccal-swab procedure made the process “minimally invasive,” unlike a surgical procedure, which makes the process as objectionable as the longstanding process of fingerprinting at the time of arrest:
(1) By comparison to the substantial government interest and the unique effectiveness of DNA identification, the intrusion of a cheek swab to obtain a DNA sample is minimal. Reasonableness must be considered in the context of an individual’s legitimate privacy expectations, which necessarily diminish when he is taken into police custody. Bell, supra, at 557. Such searches thus differ from the socalled special needs searches of, e.g., otherwise law-abiding motorists at checkpoints. See Indianapolis v. Edmond, 531 U. S. 32. The reasonableness inquiry considers two other circumstances in which particularized suspicion is not categorically required: “diminished expectations of privacy [and a] minimal intrusion.” Illinois v. McArthur, 531 U. S. 326, 330. An invasive surgery may raise privacy concerns weighty enough for the search to require a warrant, notwithstanding the arrestee’s diminished privacy expectations, but a buccal swab, which involves a brief and minimal intrusion with “virtually no risk, trauma, or pain,” Schmerber v. California, 384 U. S. 757, 771, does not increase the indignity already attendant to normal incidents of arrest. Pp. 23–26.
(2) The processing of respondent’s DNA sample’s CODIS loci also did not intrude on his privacy in a way that would make his DNA identification unconstitutional. Those loci came from noncoding DNA parts that do not reveal an arrestee’s genetic traits and are unlikely
to reveal any private medical information. Even if they could provide such information, they are not in fact tested for that end. Finally, the Act provides statutory protections to guard against such invasions of privacy. Pp. 26–28.
Read all of Scalia’s dissent to get the full flavor of his objection, but this in particular was intriguing:
Moreover, the CODIS system works by checking to see whether any of the samples in the Unsolved Crimes Collection match any of the samples in the Convict and Arrestee Collection. Ibid. That is sensible, if what one wants to do is solve those cold cases, but note what it requires: that the identity of the people whose DNA has been entered in the Convict and Arrestee Collection already be known. If one wanted to identify someone in custody using his DNA, the logical thing to do would be to compare that DNA against the Convict and Arrestee Collection: to search, in other words, the collection that could be used (by checking back with the submitting state agency) to identify people, rather than the collection of evidence from unsolved crimes, whose perpetrators are by definition unknown. But that is not what was done. And that is because this search had nothing to do with identification.
In fact, if anything was “identified” at the moment that the DNA database returned a match, it was not King—his identity was already known. (The docket for the original criminal charges lists his full name, his race, his sex, his height, his weight, his date of birth, and his address.) Rather, what the August 4 match “identified” was the previously-taken sample from the earlier crime. That sample was genuinely mysterious to Maryland; the State knew that it had probably been left by the victim’s attacker, but nothing else. King was not identified by his association with the sample; rather, the sample was identified by its association with King. The Court effectively destroys its own “identification” theory when it acknowledges that the object of this search was “to see what [was] already known about [King].” King was who he was, and volumes of his biography could not make him any more or any less King. No minimally competent speaker of English would say, upon noticing a known arrestee’s similarity “to a wanted poster of a previously unidentified suspect,” ante, at 13, that the arrestee had thereby been identified. It was the previously unidentified suspect who had been identified—just as, here, it was the previously unidentified rapist.
And … so? That’s exactly what happens with fingerprint matches, too. They get entered into state, regional, and national databases, where investigators can find hits on previously cold cases. There isn’t any rush to enter the fingerprints into those databases either (the delay on entering King’s DNA into CODIS is one of Scalia’s points in the dissent). The process for fingerprints identifies the present suspect, but also depositors of fingerprints from earlier crimes. Sometimes, those fingerprints can also expose false identities, and … so can a DNA database, depending on the data within it.
It’s difficult to see an objection to this, other than the fact that the government now has genetic data on arrestees that could at some time reveal health-related issues for which the government has no business cataloguing. Oddly, though, Scalia never makes that objection, arguing that the founding fathers would hardly “have been so eager to open their mouths for royal inspection” as a rebuttal to the idea that government will force non-arrestees to surrender their DNA … which seems a non-sequitur in the present case of Maryland v King. Surely such an effort would present itself as a separate case to the Supreme Court at that time, and the Court would not be constrained by King to stop it.
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