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.