A recent Supreme Court decision on law enforcement performing DNA tests on criminal suspects was quickly overshadowed by news of the federal government’s compiling the personal data of virtually every American for “security” reasons. The two issues are related, though, in the context of the ongoing expansion of the surveillance state.
In a 5-4 split, the court ruled in Maryland v. King that police can take a DNA swab from anyone they arrest for a serious crime, upholding a practice currently used by more than half the states (including Florida) and the federal government. Supporters contend it is no different than fingerprinting. Opponents argue that using a database of DNA to solve unrelated crimes constitutes an unconstitutional search.
Alonzo King was arrested in Maryland in 2009 on an assault charge. At booking he was photographed and fingerprinted, but police also took a cheek swab for DNA testing. Subsequent testing of the DNA sample enabled the police to link King to an unrelated, unsolved 2003 rape, for which he was subsequently tried and convicted. King argued that the police had no probable cause to believe that he had committed that 2003 crime and therefore had no basis for conducting the DNA search that ultimately linked him to it.
Although the Maryland Court of Appeals agreed and threw out the rape conviction, the Supreme Court overturned the state ruling on the grounds that DNA testing is not intrusive (and hence does not rise to the Fourth Amendment’s prohibition of “unreasonable” searches) and it helps identify the person under arrest (even though King already had been positively identified). The majority opinion, written by Justice Anthony Kennedy, at least pays lip service to constraints on how that genetic evidence is used. It can only apply to serious felonies (murder, rape, etc.), and the evidence must be destroyed if the suspect is not convicted.
In a blistering dissent, however, Justice Antonin Scalia correctly points out that DNA testing is being used to solve suspicionless crimes. If, as Kennedy and the majority contend, the state interest in solving crimes with genetic markers outweighs the individual’s right to privacy, then what logic stops the government from compiling DNA data on everyone?
Scalia is justifiably skeptical that the government will maintain a narrow control of evidence that contains such a vast array of possible uses. He cites the collection of fingerprints evolving “from convicted criminals, to arrestees, to civil servants, to immigrants, to everyone with a driver’s license” in some states — and DNA has far more uses.
DNA testing could expand to less-than-serious crimes, and officials could argue that destroying such evidence interferes with solving cold cases. Thus, even if a person is wrongly arrested his DNA will be on file forever. Because you never know when it might be useful.
“Solving unsolved crimes is a noble objective,” Scalia wrote, “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 Fourth Amendment must prevail.”
A universal DNA database is the companion to the federal government’s compiling of communications records of millions of Americans, most of whom are not (currently) suspected of a crime. It sits there in storage, for years, just in case someone’s dot can be connected to another’s. For what purpose? That’s for the state to decide.
The judiciary must impose tighter controls than what the Supreme Court did last week.
From the Panama City News Herald