The Supreme Court ruled 5-4 (but not the usual suspects) that police can take DNA samples from detainees even if they haven’t been convicted of a crime.
A divided Supreme Court ruled Monday that police may take DNA samples when booking those arrested for serious crimes, narrowly upholding a Maryland law and opening the door to more widespread collection of DNA by law enforcement.
The court ruled 5 to 4 that government has a legitimate interest in collecting DNA from arrestees, just as it takes photographs and collects fingerprints. Rejecting the view that the practice constitutes an unlawful search, the majority said it was justified to establish the identity of the person in custody.
As with other recent court decisions involving the Fourth Amendment’s “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” the justices split in an unusual fashion.
The dissenters were three of the court’s liberals plus conservative Justice Antonin Scalia, who amplified his displeasure by reading a summary of his dissent from the bench.
“The court has cast aside a bedrock rule of our Fourth Amendment law: that the government may not search its citizens for evidence of crime unless there is a reasonable cause to believe that such evidence will be found,” Scalia said from the bench.
In his dissent, Scalia wrote that the majority’s attempts to justify the use of DNA as an identification tool “taxes the credulity of the credulous.” He added, “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.”
Scalia was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.
The argument that DNA collecting is no different than fingerprints falls apart when you realize that DNA is not just proof of identity; it tells you everything about someone, even down to their propensity for disease or genetics. It skates way over the line beyond just identity, and that’s going too far. Scott Lemieux at LGM takes it from there.
If this decision stands, we might as well just collect DNA samples from everyone at birth and be done with the pretense that we’re applying the Fourth Amendment to DNA collection. The originalist language is useful, though, because it highlights what a particular embarrassment it was for Thomas to have joined Kennedy’s opinion without comment. I’d love to hear the “originalist” justification for the proposition that you can conduct a search of one’s body without suspicion (let alone warrant) or exigent circumstances as long as the information collected is really useful.
The second — and also ironic — point is that if the conservatives are okay with this, then why not all sorts of databases, like, oh, say, guns? CLW noted, “[t]here are already huge national databases of cars (CARFAX), of credit info (Experion, Equifax, and TransUnion), of international travelers (passports), of dogs and cats. But, because of Da Second Amendment, we can’t have a huge federal database of guns. Got it.”