Collecting DNA prior to a conviction? Troubling!

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On The Front Lines

Gutting the Fourth Amendment’s Presumption of Innocence, U.S. Supreme Court Allows Warrantless Collection of DNA by Police in 5-4 Ruling

June 03, 2013  WASHINGTON, DC —In a devastating ruling handed down in Maryland v. King, a divided U.S. Supreme Court has approved the practice by police of forcefully obtaining DNA samples from individuals arrested for serious crimes, even though they are presumed innocent, without first obtaining a search warrant. As Justice Antonin Scalia, writing for the dissent, points out, the Court’s ruling succeeds only in burdening “the sole group for whom the Fourth Amendment’s protections ought to be most jealously guarded: people who are innocent of the State’s accusations.” Moreover, if such a dubious practice were to prevail simply for the sake of “solving more crimes,” as Scalia suggests, it would not take much to justify the “taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the “identity” of the flying public), applies for a driver’s license, or attends a public school.” The Supreme Court’s ruling in Maryland v. King is available at http://www.supremecourt.gov/opinions/12pdf/12-207_d18e.pdf.

“Any American who thinks they’re safe from the threat of DNA sampling, blood draws, and roadside strip and/or rectal or vaginal searches simply because they’ve ‘done nothing wrong,’ needs to wake up to the new reality in which we’re now living,” said John W. Whitehead, president of The Rutherford Institute, whose timely new book A Government of Wolves: The Emerging American Police State paints a chilling portrait of a nation in the final stages of transformation into a police state, complete with surveillance cameras, drug-sniffing dogs, SWAT team raids, roadside strip searches, blood draws at DUI checkpoints, mosquito drones, tasers, privatized prisons, GPS tracking devices, zero tolerance policies, overcriminalization, and free speech zones. “As the Supreme Court’s ruling in Maryland v. King shows, the mindset of those in the highest seats of power—serving on the courts, in the White House, in Congress—is a utilitarian one that has little regard for the Constitution, let alone the Fourth Amendment. Like Justice Scalia, all I can hope is that ‘today’s incursion upon the Fourth Amendment’ will someday be repudiated.”

In 2009, Maryland police arrested Alonzo Jay King Jr. on charges of assault. Relying on a state law which authorizes DNA collection from people arrested but not yet convicted of a crime, police carried out a cheek swab on King to obtain his DNA profile without first procuring a warrant. The DNA sample was then matched up against a database which identified him as having allegedly been involved in a 2003 rape. King was then convicted of the 2003 crime. On appeal, the Maryland Court of Appeals ruled in April 2012 that the state law violated the Fourth Amendment. In an unusual move, in July 2012, Supreme Court Chief Justice John Roberts issued a stay of the lower court’s ruling, prior to the Court’s even agreeing to hear the case, using the rationale that collecting DNA from people accused of serious crimes is “an important feature of day-to-day law enforcement practice in approximately half the states and the federal government.” In agreeing to hear the case, the Supreme Court was asked to determine whether the Fourth Amendment allowed law enforcement officials to collect DNA from people who have merely been arrested and so are presumed innocent. Yet as constitutional attorney John Whitehead warns, the Court’s subsequent 5-4 ruling which equates forcefully obtaining a DNA sample to “fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment,” further guts an already severely disemboweled Fourth Amendment. Justices Anthony Kennedy, John Roberts, Clarence Thomas, Stephen Breyer and Samuel Alito affirmed the practice of warrantless DNA grabs by the police. Issuing a strongly worded dissent were Justices Antonin Scalia, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

PRESS CONTACT

Nisha Whitehead
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nisha@rutherford.org

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