Few jurists are better in dissent than Antonin Scalia. And his dissent in today’s decision allowing police to take DNA swabs of arrested suspects features the conservative Supreme Court justice at his sardonic best.
Scalia joined with liberals Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayorto vote against the majority’s holding inMaryland v. King that sticking a swab in a prisoner’s cheek for a quick DNA sample is functionally no different than taking fingerprints.
For Scalia, the DNA swab is a suspicionless search, the kind of fishing expedition the writers of the Constitution specifically prohibited. “Americans despised the British use of so-called `general warrants,’” Scalia writes, so they added the Fourth Amendment to the Bill of Rights to require police to require a judge’s permission to search people for specific evidence, in specific places. In the Maryland case, a prisoner arrested on an unrelated charge was unmasked as a rapist when his DNA matched genetic material collected in an earlier investigation.
Scalia lashed out at Justice Anthony Kennedy and the majority for taking the government at its word that the buccal swabs for DNA were merely another form of identification. The three-month delay between when King was swabbed and his DNA was processed makes a mockery of the idea it was used to identify him, Scalia wrote, when the FBI fingerprint-matching system takes 27 minutes. (He includes a chart for comparison.)
“It is safe to say that if the Court’s identification theory is not wrong, there is no such thing as error,” says Scalia in his typically understated way.
Scalia’s real concern is police will begin swabbing cheeks in every arrest, including traffic violations, thus creating a vast government database that will allow for the easier identification of criminals in unrelated cases. “The Court disguises the vast (and scary) scope of its holding by promising a limitation it cannot deliver,” he says. “The Court repeatedly says that DNA testing, and entry into a national DNA registry, will not befall thee and me, dear reader, but only those arrested for `serious offense[s].’”
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.” Make no mistake about it: As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.
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