The U.S. Supreme Court, in a huge victory for law enforcement, ruled 5-4 last week that taking a DNA sample from prisoners accused of serious crimes does not violate the Constitution.
To the outrage of civil liberties advocates, the ruling was not about defendants who had been convicted of a crime. All 50 states allow DNA sampling of those convicted of a felony. The ruling addressed those who had merely been accused of a serious crime.
The underlying case is fairly stark.
In 2003 a man concealing his face and armed with a gun broke into a woman's home in Salisbury, Md. He raped her. Police were unable to identify him, but they did take a sample of the invader's DNA from the woman.
In 2009 Alonzo King Jr. was arrested in Wicomico County, Md., and charged with first- and second-degree assault for menacing a group of people with a shotgun. "As part of a routine booking procedure for serious offenses, his DNA sample was taken by applying a cotton swab or filter paper -- known as a buccal swab -- to the inside of his cheeks. The DNA was found to match the DNA taken from the Salisbury rape victim."
King subsequently was convicted of the rape.
A Maryland appeals court set aside the conviction, finding that the state act authorizing DNA collection from felony arrestees was unconstitutional.
The narrow U.S. Supreme Court majority reversed the state appeals court.
Writing for the unusual mix of justices in the majority, Justice Anthony Kennedy said putting a swab into a prisoner's mouth to take a DNA sample, like fingerprinting and photographs, did not violate the Fourth Amendment's ban on unreasonable searches.
Conservative Justice Antonin Scalia led the dissent. He was joined by the court's three women -- all liberals -- Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Scalia was so disgusted by the majority opinion he read his dissent from the bench -- something a justice does only when he or she is pretty worked up.
Besides the unusual mix on dissent, what makes the ruling more remarkable is that in April the justices made it harder for police to take driver blood tests without a warrant.
In that separate case, the Missouri Supreme Court suppressed the blood sample evidence in a drunk driving case, saying there had been no "exigent circumstances" -- no circumstances that called for immediate action -- that would have excused the failure to obtain a warrant under the Fourth Amendment.
The U.S. Supreme Court agreed.
In the prevailing high court opinion, Sotomayor said U.S. Supreme Court precedent on warrantless searches "applies here, where the search involved a compelled physical intrusion beneath [a defendant's] skin and into his veins to obtain a blood sample to use as evidence in a criminal investigation."
She said an exception to a warrant requirement would occur only when a "totality of the circumstances" supports "exigent circumstances."
She was joined in the majority by Scalia, among others.
The majority opinion in the Missouri case baffled Chief Justice John Roberts. Joined by two other justices -- liberal Justice Stephen Breyer and conservative Justice Samuel Alito (conservative Justice Clarence Thomas dissented separately) -- Roberts concurred in part with the majority and dissented in part: "A police officer reading this court's opinion would have no idea -- no idea -- what the Fourth Amendment requires of him, once he decides to obtain a blood sample from a drunk driving suspect who has refused a Breathalyzer test. I have no quarrel with the court's 'totality of the circumstances' approach as a general matter; that is what our cases require. But the circumstances in drunk driving cases are often typical, and the court should be able to offer guidance on how police should handle cases like the one before us."
In last week's DNA case from Maryland, Kennedy contended that there was no invasive procedure involved, like the injection of a needle, just the gentle swab inside a defendant's mouth. The biological material is examined for genetic markers that could be tied to an individual.
"The advent of DNA technology is one of the most significant scientific advancements of our era," Kennedy said in the majority opinion. "The full potential for use of genetic markers in medicine and science is still being explored, but the utility of DNA identification in the criminal justice system is already undisputed. Since the first use of forensic DNA analysis to catch a rapist and murderer in England in 1986 ... law enforcement, the defense bar and the courts have acknowledged DNA testing's unparalleled ability both to exonerate the wrongly convicted and to identify the guilty. It has the potential to significantly improve both the criminal justice system and police investigative practices."
The underlying case involved the Maryland DNA Collection Act, which allowed the sampling of DNA when someone was arrested by police who had probable cause to believe a felony had been committed.
"The legitimate government interest served by the Maryland DNA Collection Act is one that is well established: The need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody," Kennedy said. "It is beyond dispute that 'probable cause provides legal justification for arresting a person suspected of crime, and for a brief period of detention to take the administrative steps incident to arrest.'"
He added later in the opinion, "DNA identification can provide untainted information to those charged with detaining suspects and detaining the property of any felon. For these purposes officers must know the type of person whom they are detaining, and DNA allows them to make critical choices about how to proceed."
At the heart of Kennedy's opinion was the "reasonableness" of DNA sampling.
"In light of the context of a valid arrest supported by probable cause [the suspect's] expectations of privacy were not offended by the minor intrusion of a brief swab of his cheeks," Kennedy wrote. "By contrast, that same context of arrest gives rise to significant state interests in identifying [the suspect] not only so that the proper name can be attached to his charges but also so that the criminal justice system can make informed decisions concerning pretrial custody. Upon these considerations the court [majority] concludes that DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure. 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."
Scalia was withering in dissent.
"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," he wrote. "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.
"It is obvious that no such non-investigative motive exists in this case," Scalia said. "The [court majority'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. And the [majority'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."
Scalia said he does not want to ban all DNA sampling, but blasted sampling of suspects who had not yet been convicted of a crime.
"All parties concede that it would have been entirely permissible, as far as the Fourth Amendment is concerned, for Maryland to take a sample of King's DNA as a consequence of his conviction for second-degree assault," he said. "So the ironic result of the court's error is this: The only arrestees to whom the outcome here will ever make a difference are those who have been acquitted of the crime of arrest [so that their DNA could not have been taken upon conviction]. In other words, this [state] act manages to burden uniquely the sole group for whom the Fourth Amendment's protections ought to be most jealously guarded: people who are innocent of the state's accusations.
"Today's judgment," Scalia said, "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. 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. I therefore dissent, and hope that today's incursion upon the Fourth Amendment, like an earlier one, will some day be repudiated."
Reaction to the ruling has been largely negative.
Steven Benjamin, president of the National Association of Criminal Defense Lawyers, immediately issued a statement saying, "Today, the Supreme Court essentially ruled that Americans' homes and cars are more protected from warrantless searches than our bodies. How can this be? As technology advances, we must be careful to protect fundamental privacy interests from unacceptable government intrusion. This type of intrusion might now be constitutional, but it certainly is not mandatory. NACDL calls on the state legislatures to provide greater protection than what the Supreme Court has provided today."
On its website, the NACDL said it has a longstanding position against the expansion of DNA databases to include, among other categories of people, those persons arrested by law enforcement but not yet convicted of any offense. The organization filed a friend-of-the-court brief in support of King in the Maryland case.
Steven R. Shapiro, legal director of the American Civil Liberties Union, immediately issued a statement saying, "Today's decision creates a gaping new exception to the Fourth Amendment. 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. At the same time, it's important to recognize that other state laws on DNA testing are even broader than Maryland's and may present issues that were not resolved by today's ruling."
The editorial board of The New York Times rumbled, "Justice Anthony Kennedy, writing for the majority, pretended that collecting DNA is like fingerprinting, a legitimate part of the police booking procedure to identify a suspect. But the main reason law enforcement seeks DNA sampling is not to get an accurate name. It is to connect the suspect to other cases, unrelated to the arrest, by matching the DNA found at other, older crime scenes, when there is no reasonable suspicion to do so."
The Times editorial said the federal government and 28 states permit DNA collection before conviction.
"The decision severely undermines fundamental Fourth Amendment principles that protect individuals against unjustified searches and incursions on privacy by law enforcement," the Times said.
The editorial ended up by quoting Scalia -- not a usual practice for the newspaper: "This search had nothing to do with establishing King's identity," Scalia wrote, warning that "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."
In contrast, an editorial in The Baltimore Sun called the ruling a victory for "common sense," among other things.
"The Supreme Court's decision today to uphold Maryland's law allowing the collection of DNA samples from people arrested for serious crimes upholds the interests of justice, the Constitution and common sense," the Sun said. "Concerns that the DNA samples could violate suspects' privacy were unfounded, the practice of taking the samples is less intrusive than other searches authorized under the Fourth Amendment, and the direct result of a ruling against the law would have been the possibility that a known rapist would be released onto the street."
The Sun's editorial also cited Scalia.
"Justice Scalia's lively dissent rejects the idea that 'identity' amounts to anything more than connecting a name to a person and argues that DNA collection from arrestees serves only as a means to seek evidence to solve unrelated crimes," the Sun said. "His objections miss the mark. DNA itself is not evidence of a crime any more than fingerprints or mug shots. And if the use of DNA in this regard is unconstitutional, so, too, is the collection and analysis of fingerprints that has been standard practice for decades. His argument that the speedier processing of fingerprints than DNA makes them different is unconvincing, given that the technology that makes instant fingerprint matching possible has only been around since 1999.
"It is important not to lose sight of what is at stake here," the editorial added. "The result of the court's decision is that Mr. King will not go free. Nor will at least 50 other criminals who were convicted in Maryland based on DNA evidence collected from arrestees. Maryland's law strikes a careful balance between our rights to privacy and our interest in determining whether arrestees have committed prior crimes. The court's decision serves the interests of both public safety and justice."