On June 3, 2013, the Supreme Court ruled in Maryland v. King that when police officers make an arrest supported by probable cause to hold a suspect for a serious offense and bring him 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.
Justice Kennedy held the key swing vote on a hotly contested issue involving the scope of 4th Amendment protections. Justice Kennedy also delivered the opinion for the majority. Prior to this ruling, it was commonly accepted that the Constitution allows the government to take DNA evidence from those individuals who were convicted of a crime, however, this ruling expanded that understanding to include those individuals who are simply in police custody because they are suspected of having committed a crime.
Kennedy wrote: “[a] suspect’s criminal history is a critical part of his identity that officers should know when processing him for detention.” The opinion further stated, when police officers collect a DNA sample from a suspect, they basically are only seeking to find a connection to the criminal records they already have on file. “The task of identification necessarily entails searching public and police records based on the identifying information provided by the arrestee to see what is already known about him." Further, “It uses a different form of identification than a name or fingerprint, but its function is the same.”
Justice Scalia, writing for the dissenters, argued that the majority was disregarding a long standing legal understanding that the government may not obtain DNA samples involuntarily from suspects for the purpose of solving prior crimes. The dissent went on to state that the DNA sampling would not practically be used to identify a suspect but would actually be used purely to solve old crimes that have nothing to do with the offense that the suspect was arrested for. The process of analyzing DNA evidence takes so long that it would ultimately have no value in helping police identify a suspect in a new crime.
It is important to note that the Maryland law in question deals only with “a crime of violence or an attempt to commit a crime of violence, or burglary or an attempt to commit burglary.” Therefore, this ruling would not necessarily apply to all criminal offense, although most likely most government agencies will rely upon it for that proposition.
The collection of DNA evidence is an integral part of law enforcement. It allows law enforcement agents to solve crimes that occurred years prior and to link suspects to crimes on opposite ends of the country. However, the value of DNA evidence to law enforcement agents absolutely should not trump the guaranteed constitutional protections of the 4th amendment and an individual's right to privacy. Just because an individual has been accused of committing a crime, even a violent one, should not justify this type of intrusion into his privacy. This type of decision from the nation's highest court frightens me. Not because this particular decision is so shocking or unbelievable but because this is yet again another example of individual rights being slowly deteriorated for the sake of law enforcement. It is a slippery slope when dealing with constitutional protections and the further and further the envelope is pushed the more and more shocking the decisions will be moving forward.
As a Washington, DC criminal defense and DUI attorney I understand the importance of protecting individual liberties. I understand that if you give the government an inch, they will take a mile. I worry about what the Supreme Court will take away next in the interests of "protecting the people." I can only hope that at some point soon, the Court will finally draw a line in the sand and say that they have gone far enough and leave all remaining civil liberties intact for the foreseeable future.