A Horrible Decision

webeagleIt’s one of those United States Supreme Court cases in which you want to read the dissent before the actual opinion.  In Maryland v. King, that’s exactly what I did.  Associate Justice Antonin Scalia wrote the dissent, and was joined by Justices Ginsberg, Sotomayor, and Kagan – the Court’s three female members. 

Maryland v. King is an opinion that allows law enforcement agencies to collect DNA from people who have been arrested.  Many states, including Iowa, allow for the collection of DNA after a person has been convicted of a certain crime, but twenty-eight states and the federal government allow for the collection upon arrest.  On Monday, the Court said it was constitutionally okay to take a sample of “skin cells”.  They might just as well take an arm or a leg, your heart, your brain, or your medical records.  The majority opinion in the case adds credence to the phrase “if you’ve done nothing wrong, you’ve nothing to fear”.  That is not the way America works, or the way it used to work.  That’s where I give credit to my Eighth Amendment (the death penalty is NOT cruel and unusual punishment) nemesis, Justice “Tony” Scalia.

Justice Scalia’s first paragraph in his dissent is simple and brilliant.

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.

We have said this before in previous blogs:

Guilty Until Proven Innocent

DNA:  Modern Day Fingerprints?

The majority opinion really misses the boat.  Justice Kennedy acknowledges that collecting DNA is a Fourth Amendment search. “It can be agreed that using a buccal swab on the inner tissues of a person’s cheek in order to obtain DNA samples is a search. Virtually any “intrusio[n] into the human body” will work an invasion of “‘cherished personal security’ that is subject to constitutional scrutiny.”  He got that right, but then he went on to use examples.  “The Court has applied the Fourth Amendment to police efforts to draw blood,. . . scraping an arrestee’s fingernails to obtain trace evidence, and even to “a breathalyzer test, which generally requires the production of alveolaror ‘deep lung’ breath for chemical analysis”  What he failed to grasp was the difference of circumstances. His examples have one thing in common.  The drawing of an arrestee’s blood, scraping fingernails, and using breathalyzers are evidence-acquiring techniques that are used on a person who is a suspect of a “certain” crime in the present time.  The difference between these Fourth Amendment searches and DNA searches for arrestees is that the DNA searches are not connected to the crime before law enforcement.  The evidence obtained has nothing to do with solving the crime for which the arrestee is facing charges. 

Some may claim that the collection of fingerprints is the same thing.  It’s not.  DNA is your family history.  As Stephanie wrote in a previous blog, “Fingerprints and DNA are very different.  DNA can be inadvertently transferred from one location to another; fingerprints cannot. DNA has a genetic link.  Fingerprints do not.” And although it’s possible to have two people in the entire world have identical fingerprints, those two people may be on different continents, be of diverse cultures and races, and have absolutely nothing in common.  As for DNA, the person with a match closest to yours is most likely a sibling.  And twins often do have the same DNA.  Yeah, it’s different.

We can expect bills next year by the Attorney General, county attorneys, and quite possibly the huge brood of law enforcement lobbying groups, to expand the already expanded list of eligible felons and misdemeanants who have been arrested for a crime to submit to the buccal swab.

© Copyright 2013.  Fawkes-Lee & Ryan.  All rights reserved.

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