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Brave new world?


Alonzo King was arrested in 2009 for waving a shotgun at a bunch of people.  That probably wouldn't have amounted to a big deal.  What did amount to a big deal was that the police took a buccal swab from him, pursuant to a Maryland law which allowed DNA samples to be taken from persons arrested for "serious" felonies.  The DNA sample from King was found to match that taken from the perpetrator of a rape committed six years earlier.  He was convicted of that rape and sentenced to life in prison without parole.  The Maryland Court of Appeals tossed the conviction and sentence, finding that taking DNA samples from a person who hadn't been convicted of a crime violated the Fourth Amendment.  Different courts, both state and federal, have reached different results on the question, so the Supreme Court decided to resolve the issue.  On Monday, they did, and, by a 5-4 vote, it's bad news for King.

Justice Kennedy's opinion for the majority is eminently reasonable.  He stresses the precautions provided by the Maryland law:  It allows collection of a sample only from someone who is charged with a crime of violence or burglary.  The sample can't be processed until the defendant is arraigned, at which point a judicial officer has determined that there's probable cause to believe that the defendant has committed a crime.  If probable cause isn't found, or if the defendant is acquitted, his conviction is vacated on appeal, or he's pardoned, the sample is destroyed.  The sample can't be used for anything other than identification; even testing for familial matches is prohibited.  The sample is collected by use of the buccal swab, which essentially involves a quick swab of the inside of the mouth with something resembling a Q-tip.  No messy needles, no greater intrusion upon the body.

The DNA is entered into the national database, called CODIS.  At this point, we're introduced to the concept of "junk DNA."  (Cue Elton John's Rocket Man:  "...all the science, I don't understand...")  The short version is that the DNA sample used in CODIS isn't useful for anything besides identification:  it doesn't have any association with genetic diseases or predispositions. 

So what's not to like?  Sure, it's a search, so the Fourth Amendment applies, but the test is one of "reasonableness."  The police obviously have an interest in ascertaining the identity of the person they've arrested, and Kennedy spends a full quarter of the opinion on this subject:  determining the identity allows the police to determine who they've actually arrested, similar to the purpose achieved by fingerprints and mug shots, and allows them to make better decisions as to dangerousness and bond conditions. 

Balanced against these "routine administrative steps incident to arrest" is the arrestee's privacy interests, the next subject of the opinion, but you can pretty much guess where that's going:  after all, given the fact the guy's already in police custody, how much of an interest in privacy does he have left?  Certainly not one that would be offended by the "brief and minimal intrusion" of the buccal swab, or the fact that the information obtained from the swab can't be used for anything other than identification; the idea of a rogue government sifting through CODIS to determine genetic defects is fanciful nonsense. 

The entire premise of Kennedy's argument -- that the purpose of the DNA testing is to identify the arrestee -- is undercut by the very precautions in the use of the DNA profile that Kennedy relies on:   it can't be processed until a determination of probable cause is made, days after the arrest has been made.  Scalia's dissent, for Ginsburg, Sotomayor, and Kagan, completely demolishes the premise.  As Scalia notes, King's sample wasn't received by the forensic science unit until two weeks after his arrest, and wasn't sent to the lab for testing until two months after that.  The match wasn't made until four months after King was arrested, during which time he "had engaged in dis­covery, and he had requested a speedy trial -- presumably not a trial of John Doe." 

If the sampling isn't done for purposes of identity, what's left?  To Scalia, this is nothing more than the general warrants which impelled the adoption of the Fourth Amendment:  generalized, suspicion-less searches whose primary purpose was to detect evidence of criminal wrongdoing. 

A couple of points here.  First, there seems to have been a significant evolution in Scalia's thinking on Fourth Amendment issues.  This is the same Scalia who wrote the 1995 opinion in Vernonia School District 47J v. Acton, upholding the right of a school district to subject student athletes to random drug testing.  This is the same Scalia who wrote the opinion in Hudson v. Michigan, the 2006 decision which found that violations of "knock and announce" rule weren't subject to the exclusionary rule, and who used the opinion to launch into a diatribe about the rule's "substantial societal costs."  It's hard to square that with the Scalia who provided the deciding vote in Arizona v. Gant, which overruled Belton v. New York's rule allowing the search of the interior of a car anytime an occupant was arrested, the Scalia who wrote the opinion in US v. Jones requiring a warrant for placement of a GPS on a vehicle, the Scalia who wrote the 5-4 opinion earlier this year in Florida v. Jardines, finding that a drug sniff at the door of a house was a violation of the Fourth Amendment, or the Scalia who writes in this case, "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."

Second, how does this affect Ohio's law?  Kennedy's opinion took pains to mention the safeguards in the Maryland scheme:   testing was limited to those arrested for "serious offenses," the sample wasn't processed until probable cause was found, and was destroyed if the defendant was subsequently acquitted, pardoned, or his conviction vacated on appeal.  Ohio's statute, RC 2901.07, provides none of that:  it allows taking a DNA specimen from anyone arrested for a felony, and even certain misdemeanors, and has no provisions for the destruction of the sample.  That might make the Ohio law subject to attack under certain circumstances, but don't get your hopes up:  as Scalia notes,

If one believes that DNA will "identify" someone arrested for assault, he must believe that it will "identify" someone arrested for a traffic offense. This Court does not base its judgments on senseless distinctions. At the end of the day, logic will out. When there comes before us the taking of DNA from an arrestee for a traffic violation, the Court will predictably (and quite rightly) say, "We can find no significant difference between this case and King."


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