Supreme Court's DNA ruling raises doubts

When I first heard the U.S. Supreme Court's decision on the recent DNA case, Maryland v. King, I thought to myself, this is a good thing - that is, until I read the entire opinion. While Justice Kennedy authored the majority opinion, joined by Chief Justice Roberts and Justices Thomas, Breyer and Alito, it was actually the dissent by Justice Scalia that I found to be particularly convincing. And it's certainly worth noting that the usually conservative Scalia was joined in dissent by the three more liberal leaning female justices: Ginsburg, Sotomayor and Kagan.

The case concerned a Maryland defendant, Alonzo King, who was arrested on assault charges and detained in 2009. Maryland has a statute that allows for authorities to collect DNA samples from defendants who are charged with serious offenses. King's DNA collected via a cheek swab matched samples collected back in 2003 in an unsolved rape case. King was then tried and convicted for that rape. On appeal, a Maryland court ruled that the 2009 DNA swab was an unlawful seizure, an "unreasonable search of person," and overturned the rape conviction. The challenge to this ruling made its way up to the high court, which reversed the reversal, thereby deeming DNA cheek swabs as reasonable searches of person in line with the Fourth Amendment.

Now, here is where it gets tricky.

The Maryland collection law does not allow these DNA samples to be processed until a defendant is arraigned. In the Supreme Court's majority opinion, Kennedy wrote that the reason for upholding the state's sample collection law is because such DNA evidence can help confirm the identity of defendants.

But wait a second. King was arrested on April 10, 2009, and his DNA wasn't analyzed until July 13, 2009. He had already been arraigned, bail had been set, discovery had occurred and a speedy trial requested. As Justice Scalia wrote in the dissent, King wasn't being held as a "John Doe" -- authorities knew who he was and did not need to process his DNA swab in order to confirm his identity.

Kennedy went on to contend that a suspect's criminal history is critical information that officers should know about during processing. Maybe Kennedy isn't aware of the computer programs out there that can provide the same information in just a few key strokes.

My point here is that the reason given for why the justices ruled the way they did is outrageous, and even after reading their explanation, I'm still left wondering, "What were they thinking?"

Now granted, I agree that the actual taking of DNA samples is not intrusive per se. All it takes is a swab of your cheek. But the majority's justification for breaching a person's right to privacy and the need for this type of warrantless search is amazing to me. I honestly wonder if the justices read the Maryland statute closely enough, because it specifically states that these DNA samples are collected from arrestees "as part of an official investigation into a crime." The governor of Maryland has said that the law helps police reduce crime and solve open cases. In his dissent, Justice Scalia pointed out that the Court's position on DNA being first and foremost for identification purposes is not even one of the five purposes listed in Maryland's statute.

Another reason the Court gave for upholding the law is that DNA testing is like fingerprinting, but better. Fingerprinting is done primarily to identify arrestees. But again, as Scalia mentions, the average time it takes to obtain fingerprint results is 27 minutes, which is drastically shorter than the months it can take to get DNA matches.

The Court also likens DNA samples to photographs and contends that swabs should be allowed as part of standard police booking procedures. However, the Fourth Amendment protects us from unreasonable searches and seizures and requires warrants to be issued based on probable cause. This Maryland v. King decision will allow for warrantless searches to occur based on failed logic. Justice Kennedy and his majority owed American citizens a better justification. Using DNA for standard identification is unnecessary and makes no sense.

As a former judge, I support law enforcement and their efforts to prevent and solve crimes. My husband is the top prosecutor in our community. I abhor crime and violence and people being hurt. So, I do not challenge the high court's decision lightly.

Twenty-eight other states have statutes similar to the Maryland's. I imagine more will follow. This erosion of our privacy rights should not go unnoticed. I began reading this opinion thinking one way, and by the end, I had completely changed my mind. Thank you, Justice Scalia, for telling it like it is.

(Jackie Glass is a lawyer and former district court judge from Las Vegas. You can write to Jackie by emailing askjudgejackie@gmail.com. You can follow her on Twitter at @theJudgeGlass. This column is being provided for informational purposes only. It may not be relied upon by you as legal advice and does not create an attorney-client relationship.)

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