Supreme Court sanctions warrantless DNA collection from arrestees

Police in states that collect DNA evidence from everyone arrested for felony crimes may continue to do so, the U.S. Supreme Court ruled Monday.

In a 5-4 decision (PDF) that saw arch conservative Justice Antonin Scalia side with the nation's three reliably liberal justices, the court upheld a ruling out of Maryland that affirmed the state's policy of collecting DNA swabs from people who have yet to be convicted of a crime. A total of 26 states have similar policies in place today, whereas all 50 states collect DNA from people convicted of felonies.

The ruling affirms that DNA can be used as an identifying marker for individuals, much in the same way fingerprints and footprints have been used for decades. "When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee's DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment," the court's majority wrote.

Justice Scalia, however, penned a scathing rebuke of the court's majority, calling it an "incursion upon the Fourth Amendment" and the first step toward a "genetic panopticon" society.

"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," he wrote. "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."

Scalia added that Maryland state law appears to prohibit collection and testing of DNA as a means of identifying people, given that other simpler and faster means are available. "I hope that Maryland officials who read the Court's opinion do not take it seriously," he wrote. "Acting on the Court's misperception of Maryland law could lead to jail time."

The case sprang from the arrest of Alonzo King Jr. on an assault charge four years ago, when police in Maryland took a DNA swab before he'd been convicted. King's DNA was matched to evidence collected during an investigation of a rape in 2003 approximately three months later, leading to his conviction and subsequent life sentence. His attorneys challenged the search on Fourth Amendment grounds.

"Today's decision creates a gaping new exception to the Fourth Amendment," American Civil Liberties Union legal director Steven R. Shapiro said in a media advisory. "As Justice Scalia's dissent convincingly demonstrates, DNA testing of arrestees has little to do with identification and everything to do with solving unresolved crimes. While no one disputes the importance of that interest, the Fourth Amendment has long been understood to mean that the police cannot search for evidence of a crime – and all nine justices agreed that DNA testing is a search – without individualized suspicion. Today's decision eliminates that crucial safeguard."

This video is from MSNBC, aired Monday, June 3, 2013.

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