Monthly Archives: «June 2013»

• Jun 04, 2013
• The Wichita Eagle
• -
• by Fred Mann

WASHINGTON — Police may take DNA samples from people arrested for serious crimes, the Supreme Court ruled Monday in a 5-4 decision.

The federal government and 28 states authorize the practice, and law enforcement officials say it is a valuable tool for investigating unsolved crimes. But the court said the testing was justified by a different reason: to identify the suspect in custody.

“When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody,” Justice Anthony M. Kennedy wrote for the majority, “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 Antonin Scalia summarized his dissent from the bench, a rare move signaling deep disagreement. He accused the majority of an unsuccessful sleight of hand, one that “taxes the credulity of the credulous.” The point of DNA testing as it is actually practiced, he said, is to solve cold cases, not to identify the suspect in custody.

But the Fourth Amendment forbids searches without reasonable suspicion to gather evidence about an unrelated crime, he said, a point the majority did not dispute.

“Make no mistake about it: Because of today’s decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason,” Scalia said from the bench.

Kansas Attorney Gen. Derek Schmidt, who had joined a brief arguing in support of the ruling, hailed it.

“Like fingerprinting, post-arrest DNA swabbing is a vital tool that identifies offenders, solves crimes and keeps Kansas safe,” he said in a written statement.

Dan Monnat, a Wichita defense attorney, said the decision represents “the brave new digital and genetic world we live in.”

“It states that presumptively innocent arrestees can have their most intimate genetic information harvested by the police just because they’re arrested,” Monnat said. “The dissent of Scalia may be most apt in recognizing that it burdens most the people for whom the Fourth Amendment ought to be most zealously guarded, that is, people who turn out to be innocent of what they’re arrested for.”

Existing Kansas law allows law enforcement to draw blood to collect DNA samples from people who are jailed before they are released. Legislative efforts this spring to allow cheek swabs when people are booked and fingerprinted after arrest on felony crimes were unsuccessful.

The case featured an alignment of justices that scrambled the usual ideological alliances. Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Stephen G. Breyer and Samuel A. Alito Jr. joined the majority opinion while Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined Scalia’s dissent.

Monday’s ruling arose from the collection of DNA in 2009 from Alonzo Jay King Jr. after his arrest on assault charges in Wicomico County, Md. His DNA profile, obtained by swabbing his cheek, matched evidence from a 2003 rape case, and he was convicted of that crime.

The Maryland Court of Appeals ruled that a state law authorizing DNA collection from people arrested but not yet convicted violated the Fourth Amendment’s prohibition of unreasonable searches.

Kennedy, writing for the majority, said the “quick and painless” swabbing procedure was a search under the Fourth Amendment, meaning it had to be justified as reasonable under the circumstances. The search was reasonable, he said, given “the need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody.”

Such identification, he said, “is no different than matching an arrestee’s face to a wanted poster of a previously unidentified suspect; or matching tattoos to known gang members to reveal a criminal affiliation; or matching the arrestee’s fingerprints to those recovered from a crime scene.”

The information retrieved through DNA testing as performed by law enforcement officials is limited, Kennedy wrote, and whether “the testing at issue in this case reveals any private medical information at all is open to dispute.”

In dissent, Scalia wrote the identification was not the point of the testing. King’s identity was thoroughly established before the DNA testing, Scalia said, as officials had his full name, race, sex, height, weight, date of birth and address.

Moreover, the testing took months to complete, he added.

Nor was there a serious dispute about the purpose of the Maryland law under review, he wrote. The law said one purpose of the testing was “as part of an official investigation into a crime.”

Roberts, in staying the state court decision while the Supreme Court considered the case, acknowledged that the law “provides a valuable tool for investigating unsolved crimes and thereby helping to remove violent offenders from the general population.”

The law authorized testing for purposes of identification, Scalia wrote, but only for missing people and human remains. It said nothing about identifying arrestees.

“Solving crimes is a noble objective,” Scalia concluded, “but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches. The Fourth Amendment must prevail.”

After King was convicted of assault, there would have been no Fourth Amendment violation had his DNA been collected and tested, Scalia wrote.

“So the ironic result of the court’s error is this: The only arrestees to whom the outcome here will ever make a difference are those who have been acquitted of the crimes of arrest.”