Last week, the U.S. Supreme Court ruled that, notwithstanding the Fourth Amendment's prohibition against unreasonable searches and searches without a warrant based on probable cause, states can require that a DNA sample be taken from those arrested for a serious crime and use it to convict the arrestee of another crime. Justice Samuel A. Alito Jr. previously described it as "perhaps the most important criminal procedure case this court has heard in decades,"
The 5-to-4 decision in Maryland v. King will result in a substantial expansion of state and federal DNA databases, increasing the investigative resources available to solve cold cases and overturn wrongful convictions.
However, the decision constitutes what Justice Antonin Scalia, in a sharply worded dissent, called an "incursion upon the Fourth Amendment" — one that was rationalized by a transparently fallacious argument that taking a DNA sample from an arrestee was reasonable because it assisted in identifying and processing the arrestee.
Maryland and the other 27 states that have mandated the taking of a DNA sample from those arrested for serious crimes did not do so simply to assist in identifying and processing the arrestee. They understand the value of DNA in investigating and prosecuting crimes — including unsolved crimes — and in overturning wrongful convictions.
In 2011, Connecticut's General Assembly considered adopting similar legislation but decided to require a DNA sample only from arrestees who had previously been convicted of a serious crime and had not provided a sample.
In 2008, Maryland amended its DNA Collection Act to allow the taking of a DNA sample from those arrested for a violent crime. In April 2009, Alonzo Jay King Jr. was arrested and charged with first- and second-degree assault. The police quickly established his identity. But first-degree assault is a qualifying crime under Maryland's 2008 law so a DNA sample was taken. His profile was entered into the state's DNA database and a match was found with DNA evidence from a rape in Salisbury, Md., six years earlier. He was charged and convicted.
King appealed and the Maryland Court of Appeals concluded his reasonable expectation of privacy against a warrantless, suspicionless search wasn't outweighed by the state's interest in assuring proper identification of him in regard to the crime for which he was arrested in 2009. That court concluded that, because the state had identified King through photographs and fingerprints, it had no legitimate need for a DNA sample. It threw out the conviction and Maryland appealed to the Supreme Court.
In a decision written by Justice Anthony M. Kennedy and joined by Chief Justice John G. Roberts Jr. and Justices Alito, Stephen G. Breyer and Clarence Thomas, the court concluded that the taking of King's DNA was a reasonable search because a swab on the inside of the cheek is a negligible physical intrusion and because DNA identification is far more precise than fingerprints or photographs. This, they ruled, enabled law enforcement to identify King with a high degree of certainty and ascertain his criminal history, the risk he posed to staff and the public if released on bail, and his risk of flight.
Scalia, joined by Justices Sonia M. Sotomayor, Ruth Bader Ginsburg and Elena Kagan, strongly disagreed: "It is obvious that no such noninvestigative motive exists in this case. The court's assertion that DNA is being taken, not to solve crimes, but to identify those in the state's custody, taxes the credulity of the credulous … Does the court really believe that Maryland did not know whom it was arraigning?... this [DNA] search had nothing to do with establishing King's identity."
Scalia was right. The DNA sample was taken for one reason only — to see if King was responsible for other crimes in which there was DNA evidence. It turned out he was.
However much one may applaud the court's decision — and I do — one must also acknowledge that it not only weakens the Fourth Amendment prohibition of unreasonable and warrantless searches but does so based on a fallacious, even disingenuous, argument about why it was reasonable for Maryland to take a DNA sample from Mr. King.
No wonder Scalia was so upset that he took the unusual step of reading his dissent from the bench.
David R. Cameron is a professor of political science at Yale University.Copyright © 2015, CT Now