The Supreme Court on DNA Swabs

by Dimitrios Halikias

Yesterday’s Supreme Court decision in Maryland v. King ruled that police have the right to use DNA swabs to connect arrested individuals with unrelated, unsolved crimes. This ruling, which has enormous consequences for the future incorporation of science in law enforcement, has brought together some strange bedfellows. The decision was written by moderate Anthony Kennedy, who was joined by three conservatives and one liberal judge. The scathing dissent, written by conservative Antonin Scalia, was joined by three of the court’s most liberal judges, including both of President Obama’s appointees.

Today, further complicating matters, two prominent liberal constitutional lawyers — Akhil Amar of Yale Law School and Neal Katyal who served as Obama’s solicitor general – defended the ruling in the New York Times.

The case involved Alonzo King, a Maryland man who was arrested for assault. Maryland police officials used a cheek swab to gather DNA evidence that found King responsible for an unsolved rape from several years before. The DNA swab was not used at all to solve the assault case, nor was there any prior evidence connecting King with the rape.

Writing for the majority, Justice Kennedy wrote that the DNA swab was merely a “minor intrusion” and as appropriate as taking a picture or fingerprint. The case therefore wasn’t about solving other crimes, but was rather simply about properly identifying someone who was already arrested.

Scalia bitterly rejected the decision, arguing that “the Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous.” Using DNA evidence to solve entirely unrelated crimes is no different than searching an individual without a search warrant or probable cause. For Scalia, the DNA swab was a clear violation of the defendant’s Fourth Ammendment protections from unreasonable searches and seizures, and is similar to the abhorred general warrants used by British officials in colonial times to arbitrarily search suspects.

Scalia summarized his view, writing:

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. Whenever this Court has allowed a suspicionless search, it has insisted upon a justifying motive apart from the investigation of crime.

Amar and Katyal responded today by defending the ruling and arguing that Scalia’s reading of the Fourth Ammendment would lead to “absurd” consequences. They cited government inspection of potentially hazardous imports and airport screenings as examples of other government searches that occur without explicit reason for suspicion.

But this objection didn’t respond to Scalia’s deeper point that there is no clear point at which the government may seize DNA in order to investigate unrelated crimes. Justice Kennedy’s decision states that DNA may be taken only when the suspect is arrested for a “serious offense,” but never clearly explains what that means. Scalia therefore concluded that this precedent will prove enormously dangerous, as law enforcement will inevitably insist upon using DNA in more and more criminal cases.

As Scalia concluded:

Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the ‘identity’ of the flying public), applies for a driver’s license, or attends a public school. Perhaps the construction of such a genetic panopticon is wise. But 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.

As yesterday’s ruling demonstrated, protecting Fourth Ammendment rights will become increasingly difficult as scientific tools expand the power of law enforcement.

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