DNA ruling weakens Fourth Amendment

The U.S. Supreme Court’s Monday ruling on the use of DNA samples after someone is arrested — but not yet convicted of a crime — created some strange bedfellows.

The court was split 5-4 on upholding the constitutionality of a Maryland law, but the divide wasn’t along usual conservative-liberal lines. Liberals, moderates and conservatives joined in upholding the law, while the court’s most conservative justice, Antonin Scalia, wrote the dissent that was joined by liberal justices Sonia Sotomayor, Ruth Bader Ginsburg and Elena Kagan.

Count us in the Scalia faction. The majority opinion of the court, written by Justice Anthony Kennedy, weakens the Fourth Amendment protections against unreasonable searches, and the reasoning the majority used to reach its decision is a stretch, to say the least.

Or, as Scalia put it, the majority’s primary argument “taxes the credulity of the credulous.”

The Maryland law, similar to those in many states, including Colorado, allows police to obtain DNA samples from people arrested for violent crimes. We have no problem with that, so long is the DNA is used only to help police establish whether the suspect was involved in the crime in question.

But the law allows Maryland authorities to take the DNA sample and compare it with DNA that was collected in cold cases anywhere in the nation where no suspect has been identified. In effect, it allows law enforcement to go on fishing expeditions with DNA samples.

“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,” Scalia wrote. “The prohibition is categorical and without exception.”

That prohibition was violated when Maryland police used a DNA sample to tie a man to a rape when there was no previous evidence linking him to it, Scalia said.

He also compared this means of using DNA evidence to the general warrants issued by British authorities in colonial America to make random searches of people’s houses. Those warrants infuriated our Founding Fathers and were a major reason for the creation of the Fourth Amendment.

We have no problem with authorities taking DNA samples from suspects and using them — once the person has been convicted of a felony — to search cold-case files for a link.

The Fourth Amendment was created to protect the innocent, and someone who has merely been arrested or arraigned for a crime may be completely innocent. There is no reason his or her DNA should be included in general databases, then fished through by police searching for suspects in unrelated crimes.

Using DNA samples to fish for connections to cold cases makes these laws different from fingerprint laws. And the majority’s contention that such laws aren’t needed to determine which suspects may have committed previous crimes and are therefore more likely to skip bail can’t justify trampling on constitutional protections.

The Supreme Court further eroded the Fourth Amendment in this case.


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“The Maryland law, similar to those in many states, including Colorado, allows police to obtain DNA samples from people arrested for violent crimes.”

There are different classes of felonies, some of which are classed as Non-Violent felony offenses. I feel this law should be re-visited and limited only to violent felonies. The same should hold true to gun ownership rights. Just because someone does something stupid in their youth, it doesn’t mean they should have to wear the scarlet “F” on their record for life. Didn’t they do that kind of thing in Salem Mass. with the witches?

While the Daily Sentinel should be applauded for its editorial defense of citizens’ right to privacy (“DNA ruling weakens Fourth Amendment”) and for reporting on parallel threats thereto (“Phone-records monitoring cast wide net”; “Sen. Udall urges review of Patriot Act”), its reliance on Justice Scalia’s dubious minority dissent is problematic.

Scalia frequently masks weaknesses in his own arguments by ridiculing those of others (e.g. “taxes the credulity of the credulous”).  In Heller, Scalia dismissed as “bordering on the frivolous” the argument that the Second Amendment protected only “arms” familiar to the Founders.  However, perhaps even more fantastical is Scalia’s implied contention that – had those Founders known about or collectively anticipated the proliferation and lethality of contemporary “personal” firearms – they would nonetheless have worded the Second Amendment no differently. 

As the Sentinel expressly acknowledged – but contrary to Scalia’s dissenting assertion—the Fourth Amendment is by no means “categorical and without exception”, but rather explicitly prohibits only “unreasonable searches and seizures”.  Thus, the legal questions were whether DNA cheek swabs are dispositively less “reasonable” than fingerprints and photographs taken at booking incident to any lawful arrest – whether or not justified, and whether such identifiers, once legally taken, can lawfully be used to solve other crimes.

A similar analysis applies to the Foreign Intelligence Surveillance Act of 1978 (“FISA”), the USA Patriot Act of 2001, and the Protect America Act (FISA Amendments) of 2007.  Thus far, only the Patriot Act’s “National Security Letter” subpoenas have been declared unconstitutional – because they did not permit judicial review if challenged – but what was considered “reasonable” immediately after 9/11 may no longer be.

Indeed, while the facial constitutionality of FISA has been consistently upheld, recent revelations may support an “as applied” challenge to its “business records” provisions. 

Meanwhile, the U.S. Constitution itself remains completely silent as to “privacy”.

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