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Monday, October 24, 2016

Supreme Court Politics 427x321

In a  5-4 decision, the U.S. Supreme Court has ruled that police have the right to gather DNA evidence without a search warrant after an arrest and before the arrestee has been convicted of a crime. The majority ruled that a cheek swab is no different from taking a fingerprint or a photograph.

Already 26 states collect DNA samples from suspects, a fact that had gone mostly unnoticed until 26-year-old Alonzo King was arrested in Maryland for second-degree assault in 2009. Maryland authorities took a DNA swab from King while he was in custody, and after running it through the state’s and the FBI’s databases, they found that it matched DNA from an unsolved rape committed in 2003.

The U.S. Supreme Court’s decision on Monday reversed a 2012 Court of Appeals decision in which Maryland’s highest court ruled in King’s favor, stating that the DNA swab was used for investigative purposes after his arrest—this was in direct violation of his Fourth Amendment rights, as he had not been convicted of any crime and was still presumed innocent.

Groups including DNA Saves have been advocating for the DNA swabbing of arrestees as a means to close unsolved cases, citing statistics that most crimes are committed by repeat offenders.

Justice Anthony Kennedy was among the five Justices who voted to reverse Maryland’s decision. “DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure,” Kennedy wrote. “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.”

Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan joined Justice Antonin Scalia in his written opposition to the court’s decision. His dissent began, “The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incrimi­nating evidence. That prohibition is categorical and with­out exception; it lies at the very heart of the Fourth Amendment.”

Scalia’s defense of the Fourth Amendment continued in his scathing dissent: “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 dissenting Justices warned of likening DNA sampling to fingerprinting and taking photographs. They aimed to differentiate between methods of identifying and investigating an individual after their arrest and before a trial.

New technologies are increasingly presenting privacy challenges that complicate the typical conservative/liberal alliances on the Court.

USA Today reports, “Last year, they held that police could not attach a GPS tracking device to a car in order to monitor a suspect’s movements. This year, they ruled that using a drug-sniffing dog with reasonable suspicion was OK — but not at the door of a private home. And they decided that executing a search warrant after a suspect had left his home was out of bounds.”

Of course the major difference between last year’s decisions and the one the Supreme Court reached today is that DNA swabs may be used by authorities to implicate an arrestee in crimes for which they have no warrant or reasonable suspicion. In this way, the majority found, a DNA swab is similar to the procedural tasks of taking a fingerprint or a mugshot.

The minority warned of the broader implications of the decision.

“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,” Scalia wrote in his dissent. “This will solve some extra crimes, to be sure. But so would taking your DNA whenever you fly on an airplane.”

AP Photo/Charles Dharapak, File

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Copyright 2013 The National Memo
  • This is a vast improvement over the “evidence” used in the past that resulted in so many innocent people spending years in jail, or were executed for crimes they did not commit.

    • RobertCHastings

      Now Dominick, you know as well as I do that proponents of the Death Penalty can point to factual evidence that NO ONE has ever been executed for a crime he did not commit. Hopefully, this most recent decision on DNA will solidify their certitude.
      Gathering of DNA, from EVERYONE who enters a jail, should be a no-brainer. This is NOT an invasion of privacy, as this same court has in the recent past declared that we DO NOT have any reasonable expectation or guarantee of privacy while we are in public, which would appear to be tacit permission to install security surveillance cameras on every street corner. And it should not be a stretch to follow that up with unfettered government access to psychiatric records.

  • Michael Kollmorgen

    I totally approve of a Cheek Swab for DNA IF you are arrested and suspected of committing a crime.

    As technology advances, DNA is just as good as a fingerprint, a video or any other form of identification.

  • disqus_ivSI3ByGmh

    20 years ago, DNA evidence was only able to produce results that a suspect fit a basic genetic profile (i.e. what part of the world your family came from) from gathered evidence. Today’s technology can narrow findings down to individual members of the same family.
    The only people who have reason to fear this are people with something to hide. Just like the people who are opposed to fingerprinting and background checks for firearms purchases. Guess they have something to hide which is why they are opposed to the checks, like maybe they are not eligible to purchase firearms due to violent felony arrests in their past.

    • TZToronto

      I have no problem with routine DNA swabs. I find it hard to believe that Scalia voted with Ginsberg, et al. On the other hand, I have a real problem with the notion that people who have done nothing wrong have nothing to fear. If you happen to get arrested–having done nothing wrong–you actually have to prove your innocence.

      • Allan Richardson

        Technically no, but practically yes. Judges and juries PRESUME that cops are telling the truth, and it may take a good lawyer (think $$$) to rebut that presumption. Since the Public Defender offices in so many states are being defunded, and so little is offered to lawyers “drafted” to take indigent cases, this means indigent (and even middle class people with little savings) defendants have to plea bargain and avoid trial.

        I would be in favor of another Constitutional Amendment to state explicitly what the Gideon case implied: the prosecution of a criminal case cannot have any more money than the defendant can afford to buy plus what the state contributes for his defense, or else the case must be dismissed.

  • Mikey7a

    For once Dominick, I completely disagree sir. This is just another step in the ever lessening of our freedom. If you are convicted, then by all means, let them have your DNA on file. What happened to innocent until proven guilty? Besides that, and here goes the conspiracy part of my beliefs, what is to stop unscrupulous law enforcement from “planting” your DNA, to make an otherwise impossible to prove case against you? Since 9-11, we have lost, and continue to lose too many of our rights to privacy. I hope the ACLU takes this ruling to task. George Orwell would be very pleased to know that his sci-fi tale, was spot on. This just scares the bejesus outta me.

    • Allan Richardson

      Actually, Orwell would NOT be pleased, since he meant the novels 1984 and Animal Farm to be WARNINGS.

  • Allan Richardson

    The “planting” of DNA to frame people is a serious concern, but good police work (not rushing to charge “somebody” but thorough evidence processing that, so far, exists only in CSI dramas) would mitigate that concern. After all, police have been known to use reverse pickpocketing techniques to plant drugs on someone and them charge them with possession (caught red-handed). And criminals have been known to plant other people’s fingerprints, and lie about facial identification in line-ups. There needs to be more aggressive prosecution of bad cops and prosecutors regardless of the means used for identification.

    What is more disturbing about DNA is that it is not ONLY a means of identification and establishing family relationships, but also a way of learning what future diseases a person may contract. Leaking THIS information outside of law enforcement, say to an insurance company (fortunately, Obamacare will protect us from THAT problem, UNLESS a future Republican Congress repeals it and returns that industry to the status quo ante), or an employer, or a prospective client or service provider. It is even possible that laws yet to be passed will allow pre-conviction for crimes not yet committed but probable based upon DNA profiles (ref. Minority Report). To prevent this, we need a Constitutional Amendment prohibiting any use of DNA other than ESTABLISHING IDENTITY, such as medical prediction, except by the owner of that DNA, or his/her parent or guardian for his/her benefit.

    But even DNA has some loopholes, such as transplant patients and chimeras. For example, a kidney transplant patient will excrete the DONOR’s DNA in his urine, but his own DNA in saliva. And a chimera, the result of very early fusion of two fraternal twin zygotes to produce an anatomically normal fetus, can have some body parts grown from one twin and some grown from another. In some cases, biracial chimeras have “checkerboard” skin color! Naturally, such a person would have two different DNA profiles. Chimerism has recently been found to occur more frequently than previously thought; possibly some naturally hermaphroditic babies, and transgendered people, are chimeras of opposite sex fraternal twins. The law would have to account for these unusual cases as well as the common ones.

  • Jim Myers

    One of the things that bother me about using DNA as a test prior to an actual arrest is this.

    It would be easier to plant DNA at a crime scene than it would be to plant a fingerprint there.

    After all, gaining a fingerprint and being able to plant it at a crime scene needs to be done with extreme precision.

    Planting DNA can be done simply by obtaining a hair follicle, saliva, urine, blood, or any one of countless other ways.