Yesterday the Supreme Court issued a decision in Maryland v. King, a case many of my LA245 students wrote about last semester. The decision is unique, not only because of the important Fourth Amendment issue it presented, but also because the decision created a strange divide among Justices resulting in the liberal Justices joining the more conservative Scalia’s Dissent. You may recall the King case was about whether the police can take a DNA sample from someone upon arrest. It is already well established that it is constitutional to take a DNA sample upon conviction. This case takes the intrusion much farther, asking whether the police are allowed to take a DNA swab test at booking, along with fingerprints and mug shots.
The short answer is yes, the police may routinely take DNA samples from defendants upon arrest. In a highly criticized decision, with a strange combination of Justices joining, the Court ruled that anyone arrested for a “serious” crime can be subject to a DNA test upon booking.
The reason for allowing DNA tests offered by the majority was to use DNA to identify the suspect in custody. Of course, as the Dissent points out, what the DNA is really used for is investigating cold cases. That is a noble cause, Scalia states, but not important enough to justify the intrusion on our rights. While the Court’s majority decision reads as if it is “no big deal” to extend police authority to take DNA, as if it is akin to fingerprints, Scalia’s Dissent points out that the decision goes farther than ever before in intruding upon our Fourth Amendment rights. The new rule is subject to all sorts of abuse, given the lack of definition of a “serious” crime.
This decision is extremely disturbing to me. If you do any reading about the criminal justice system, you learn quickly how easy it is to be arrested, sometimes for crimes you didn’t commit. This is particularly true if you are a young black male. Even if your arrest is thrown out of court for lack of probable cause, by then it is too late: your DNA has been taken and been entered into a National database. I am all for solving cold cases, but what is the harm in waiting for the defendant to be convicted?
One Comment
Zach Barnard posted on June 11, 2013 at 9:37 pm
I would think that this comes down to the phrase “probable cause” which should be used more ethically prior to arrest. If people weren’t arrested just for anything but on the basis of true misconduct, then we wouldn’t really need to question whether or not DNA swabbing is an intrusion into our 4th Amendment rights. This is quite fascinating, too, just days before the NSA scandal hit Washington and the world. A post on Mr. Snowdon next, Professor Spooner?