Anthony Kennedy, Antonin Scalia, Constitutional Law, Police, SCOTUS, Supreme Court

The Police Can Take Your DNA Now, and Justice Scalia Doesn’t Like It

Justice Kennedy announced the majority opinion in a long anticipated case today. It was met with a blistering dissent by Justice Scalia.

Unfortunately for most Court watchers, it was not the opinion in Fisher v. University of Texas, the latest in the Court’s attempts to resolve whether affirmative action in higher education is constitutional. Some observers expressed annoyance.

Instead, the Supreme Court issued a ruling in Maryland v. King, which Justice Alito previously identified as potentially the most important law enforcement decision in decades. The Court held that the police can take your DNA any time you’ve been arrested for a “serious” crime.

But the real fun was in the dissent….

Alonzo King was arrested for menacing a group of people with a shotgun, which is probably not even illegal in some states. The police took his DNA. His DNA linked him to an unsolved rape. He was convicted of that rape.

The Maryland Court of Appeals said the DNA was taken unlawfully — a dude has a right to keep his DNA from the popo when he’s arrested, the Maryland Court held. The Supreme Court disagreed (internal quotation omitted):

[Because of] DNA testing’s unparalleled ability both to exonerate the wrongly convicted and to identify the guilty[, i]t has the potential to significantly improve both the criminal justice system and police investigative practices.

Justice Kennedy’s opinion for the Court spends pages discussing how DNA works. It reminds me of the last time I laid out the case for a new Apple product to my wife. With all those cool science terms and acronyms, how could the Court deny law enforcement the ability to play with this shiny new toy?

And, the Court assures us, this is really familiar territory from the Fourth Amendment’s point of view. This isn’t that invasive; it’s just a swipe on the inside of your mouth. When you line that up against the law enforcement interests in making sure they catch every person possible, as well as making sure no one is giving a fake ID when they’re arrested, the cheek swab passes muster.

Also, as a nice bone thrown to those worried about this maybe not being so awesome for people accused of crimes, the Court notes that its DNA-test-for-everyone approach will “prevent the grotesque detention of . . . innocent people” because

the identification of an arrestee as the perpetrator of some heinous crime may have the salutary effect of freeing a person wrongfully imprisoned for the same offense.

Besides, DNA testing isn’t really any different than photographing or fingerprinting people who’ve been arrested.

Scalia was having none of it. Joined by Ginsburg, Sotomayor, and Kagan, he started with this:

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. And the Court’s comparison of Maryland’s DNA searches to other techniques, such as fingerprinting, can seem apt only to those who know no more than today’s opinion has chosen to tell them about how those DNA searches actually work.

Ouch! Alleging two kinds of misrepresentation in the opening salvo.

Here’s the bottom line, as Scalia sees it:

No matter the degree of invasiveness, suspicionless searches are never allowed if their principal end is ordinary crimesolving. A search incident to arrest either serves other ends (such as officer safety, in a search for weapons) or is not suspicionless (as when there is reason to believe the arrestee possesses evidence relevant to the crime of arrest).

Yet here, the DNA samples are collected without suspicion of any crime committed by the person giving them (other than the one he was arrested for).

Scalia savages the majority’s reliance on photographing and fingerprinting. Neither has ever been held to be a search under the Fourth by the Supreme Court – so they’re flimsy rods to support swabbing someone’s mouth. And, as Scalia points out, neither is primarily used to solve other crimes than those the person was arrested for.

Finally, Scalia calls the majority out for its attempt to limit the scope of its new rule:

The Court disguises the vast (and scary) scope of its holding by promising a limitation it cannot deliver. The Court repeatedly says that DNA testing, and entry into a national DNA registry, will not befall thee and me, dear reader, but only those arrested for “serious offense[s].” . . . 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.

And, of course, what anti-government opinion is complete without invoking Bentham’s favorite theoretical prison:

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 air- plane (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.

Finally, this may be the cheekiest cite-heaving footnote this term, where Scalia hopes this opinion will be overturned later:

Compare, New York v. Belton, 453 U. S. 454 (1981) (suspicionless search of a car permitted upon arrest of the driver), with Arizona v. Gant, 556 U. S. 332 (2009) (on second thought, no).

But, for now, the government gets to take your DNA when you’re arrested for a serious crime.


Matt Kaiser is a lawyer at The Kaiser Law Firm PLLC, which handles complex civil litigation, white collar investigations, and federal criminal cases. On his blog, The Federal Criminal Appeals Blog, he writes about published opinions in criminal cases in the federal circuits where the defendant wins. You can reach him by email at mattkaiser@thekaiserlawfirm, and you can follow him on Twitter: @mattkaiser.

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