Moral Low Ground

Civil Liberties

Maryland v. King: Supreme Court Approves Warrantless Police DNA Collection; Scalia Joins Liberals in Dissent

In a 5-4 ruling, the US Supreme Court has affirmed the right of police to collect DNA samples from everyone arrested– but not charged or convicted– for felony offenses.

In Maryland v. King, the justices overturned an appeals court decision and upheld a Maryland state law allowing police to collect DNA samples from felony arrestees without first obtaining a warrant.

“When officers make an arrest supported by probable cause to hold a suspect for a serious offense and bring him 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 majority opinion stated.

That majority consisted of Chief Justice John Roberts, along with Justices Clarence Thomas, Samuel Alito, Stephen Breyer and Anthony Kennedy, who wrote the Court’s opinion. Dissenting were Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan and Antonin Scalia.

“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,” wrote Scalia, who, unusually, joined the court’s most liberal justices in dissenting. “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.”

The Fourth Amendment ban on “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… is categorical and without exception,” the dissent states.

Scalia, who called the decision an “incursion upon the Fourth Amendment,” wrote that the ruling could be the first step toward a “genetic panopticon.”

“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 wrote.

The case in question involves a man named Alonzo King Jr, who was arrested in Wicomico County, Maryland on suspicion of assault in April 2009. When King was arrested, police took a DNA sample via a cheek swab as permitted under state law. Police entered that DNA information in state and national criminal databases, with the sample matching that from an unsolved sexual assault case for which King was later convicted and sentenced to life in prison.

“Today’s decision creates a gaping new exception to the Fourth Amendment,” the American Civil Liberties Union (ACLU) lamented. “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 police cannot search for evidence of a crime… without individualized suspicion. Today’s decision eliminates that crucial safeguard.”

Twenty-six states currently collect DNA samples of arrestees yet to be convicted, or often even charged, for serious crimes.

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