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
disÂcovery, 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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