The Supreme Court handed down another controversial 5-4 ruling on Monday morning, but this was not the usual lineup. The court ruled that it was constitutional for the police to take a cheek swab DNA sample and enter it into a federal database when someone is arrested for a violent crime. You can read the full ruling here.
The case involves a man named Alonzo King in Maryland, who was arrested for assault. The police, pursuant to state law, took a DNA sample and entered it into the FBI’s Combined DNA Index System (CODIS) and discovered that it matched the DNA in a rape six years earlier. He was then charged and convicted of that rape, but he challenged the constitutionality of the DNA test. A state appeals court overturned the conviction but the Supreme Court has now overturned that ruling and upheld it. Justice Kennedy wrote the majority opinion, joined by Alito, Roberts, Thomas and Breyer. Justice Scalia wrote the dissent, joined by Ginsburg, Sotomayor and Kagan.
Scalia? Yep. He actually has a pretty good record on 4th Amendment search and seizure cases. And Breyer, though he is generally a liberal, has a fairly poor record when it comes to criminal justice issues. So while this might seem like an unexpected lineup, I’m not surprised by it. From the syllabus of the majority opinion:
When officers make an arrest supported by probable cause to hold for a serious offense and 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.
DNA testing may “significantly improve both the criminal justice system and police investigative practices,” by making it “possible to determine whether a biological tissue matches a suspect with near certainty.” Maryland’s Act authorizes law enforcement authorities to collect DNA samples from, as relevant here, persons charged with violent crimes, including first-degree assault.A sample may not be added to a database before an individual is arraigned, and it must be destroyed if, e.g., he is not convicted. Only identity information may be added to the database. Here, the officer collected a DNA sample using the common “buccal swab” procedure, which is quick and painless, requires no “surgical intrusio[n] beneath the skin,” Winston v. Lee, 470 U. S. 753, 760, and poses no threat to the arrestee’s “health or safety.”
The framework for deciding the issue presented is well established. Using a buccal swab inside a person’s cheek to obtain a DNA sample is a search under the Fourth Amendment. And the fact that the intrusion is negligible is of central relevance to determining whether the search is reasonable, “the ultimate measure of the constitutionality of a governmental search.” Because the need for a warrant is greatly diminished here, where the arrestee was already in valid police custody for a serious offense supported by probable cause, the search is analyzed by reference to “reasonableness, not individualized suspicion, and reasonableness is determined by weighing “the promotion of legitimate governmental interests” against “the degree to which [the search] intrudes upon an individual’s privacy.”…DNA identification is an important advance in the techniques long used by law enforcement to serve legitimate police concerns. Police routinely have used scientific advancements as standard procedures for identifying arrestees. Fingerprinting, perhaps the most direct historical analogue to DNA technology, has, from its advent, been viewed as a natural part of “the administrative steps incident to arrest.” County of Riverside v. McLaughlin, 500 U. S. 44, 58. However, DNA identification is far superior. The additional intrusion upon the arrestee’s privacy beyond that associated with fingerprinting is not significant, and DNA identification is markedly more accurate. It may not be as fast as fingerprinting, but rapid fingerprint analysis is itself of recent vintage, and the question of how long it takes to process identifying information goes to the efficacy of the search for its purpose of prompt identification, not the constitutionality of the search. Rapid technical advances are also reducing DNA processing times.
This will come as a surprise, perhaps, but I’m mostly okay with this. I think the comparison to fingerprinting is a valid one. Fingerprints can and are used for the same purpose. When someone is arrested, their prints go into a database and can be compared to those found at other crime scenes and, if there is a match, that person can then be charged with that crime as well. That’s the same thing that happened here.
But here’s where I have the problem with it. Four of the five justice in the majority in this case (Roberts, Alito, Kennedy and Thomas) ruled in 2009 that someone who is convicted has no due process right to access DNA evidence that can be tested to prove their innocence. So in this case they’re arguing that DNA is an “important advance” for law enforcement in “identifying arrestees” and therefore they must have access to DNA, but they explicitly denied such access for the accused criminal.
If DNA access is crucial to determining guilt — and it is — then why does that only count for the police and not for the accused? This is precisely the kind of inconsistency that has plagued the court’s criminal justice rulings for decades. But the 4th Amendment was intended to be a set of limits on the government, not on the individual. The Supreme Court seems to forget that all too often.