On Monday, the Supreme Court upheld 5-4 a Maryland state law allowing police to take DNA samples from legally arrested individuals in order to help them “identify” the person taken into custody. In doing so, however, the Court entirely ignored the true purpose of DNA’s testing – to search for evidence linking the arrestee to entirely unrelated crimes, something which the Fourth Amendment prohibits.
In writing the dissent opinion in Maryland v. King, Justice Antonin Scalia systematically dismantled the majority’s shaky reasoning. He noted that non-suspicious searches have never been permitted under the Fourth Amendment when the principal aim of the search is crime-solving.
“Searching every lawfully stopped car, for example, might turn up information about unsolved crimes the driver had committed, but no one would say that such a search was aimed at ‘identifying’ him, and no court would hold such a search lawful,” he wrote.
In fact, the Maryland statute at issue in the case actually lists several purposes for which DNA samples may be taken from individuals, yet explicitly forbids using DNA records for any other purpose. Almost comically, identification of the arrestee, the only government interest the Court recognized as sufficient in its majority opinion, isn’t on the list. Whoops!
Recognizing this embarrassing problem, Maryland lawmakers introduced a bill last month that would add “identification of the individuals” to the permissible list of uses of DNA sampling. The bill is currently awaiting review by the House Judiciary Committee.
Fixing the state’s current law, however, would just make the “identification” purpose even more of a charade. Scalia adds in the dissent that the DNA samples are never used to identify the immediate suspect of a crime, that it currently takes months to process and that the FBI database that matches DNA samples with DNA gathered from other crimes scenes doesn’t contain any personally identifying information about the DNA. Because of this, it makes DNA samples literally useless for identification purposes.
The majority’s attempt to analogize DNA sampling to mug shots and fingerprinting also falls flat. Photographing an individual has never been a “search” within the meaning of the Fourth Amendment, and fingerprints, unlike DNA, are actually used to identify suspects currently in custody.
Despite the questionable constitutionality of DNA sampling, the practice appears to have broad political support. Twenty-eight states, as well as the Federal Government, currently use the practice of swabbing the mouths of suspects arrested for “serious crimes” without public backlash.
Americans should be careful what they wish for, however. The Court’s reasoning can easily – and predictably – be extended to DNA sampling of Americans at routine traffic stops and any other instance where the government arguably needs to “identify” a citizen.
As Scalia summarizes:
