The Lookout

In dissent, Scalia joins with court’s liberals to blast police DNA testing without warrant

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Police patrol as people line up outside the U.S. Supreme Court on October 6, 2010. (Chip Somodevilla/Getty)


The Supreme Court ruled in a 5-4 decision Monday that police may take a DNA swab from people arrested for crimes without first getting a warrant to do so. In an unusual twist, the court's conservative firebrand, Antonin Scalia, joined three of his liberal colleagues in a scathing dissent that warns the court's decision paves the way for the creation of an invasive police state.

Scalia called the decision's scope "vast" and "scary," and said the DNA collection is an unequivocal violation of Americans' Fourth Amendment right to be free from "unreasonable searches and seizures" of their bodies and homes.

"Make no mistake about it: As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason," he wrote. Scalia was joined by Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor, three of the court's liberals, in his dissent.

Nearly 30 states have laws allowing them to collect DNA from people who have been arrested.

The Supreme Court case involved Alonzo King, whose DNA sample was taken by Maryland police after he was arrested for assault in 2009. Months after his arrest, police found that King's DNA sample matched DNA from a rape kit taken six years earlier from a 53-year-old woman raped at gunpoint in her home by an intruder. King was convicted of that rape, but a state appeals court threw out the conviction, ruling that police could not take a DNA sample from someone who is presumed innocent of a crime simply to fish around for other possible crimes he or she may have committed.

The Supreme Court's majority decided that DNA testing is much like fingerprinting, which has long been considered a routine part of the arrest process because it helps authorities verify the identity of a suspected criminal. Justice Anthony Kennedy—joined by John Roberts, Samuel Alito, Clarence Thomas and Stephen Breyer—wrote that police do not need a warrant to obtain a DNA sample because it is a "legitimate police booking procedure" that simply helps authorities determine the identify of their suspect and find out whether he or she has been convicted of committing other crimes.

Scalia blasted the majority for categorizing DNA testing as a way to identify suspected criminals in his trademark caustic prose, saying their logic "taxes the credulity of the credulous." He pointed out that King's DNA sample was not sent to the DNA matching database until August of 2009—four months after his arrest and long after he was arraigned—which cast doubt on the claim that authorities needed it to help verify his identity. Fingerprints, on the other hand, can be run against convict and other databases in under half an hour, on average, Scalia noted.

Scalia argued that the primary purpose of the DNA swab is to find evidence of other criminal wrongdoing, which he compared to officers showing up at a house without probable cause or a warrant and rummaging around. Scalia wrote that body searches at the time of an arrest are valid because police are looking for evidence relevant to the crime that a person is suspected of committing. DNA sampling takes that a step further by attempting to find evidence of other wrongdoing that is not related to the crime the person has been arrested for, Scalia argued.

That tactic may help solve more crimes, but is an overreach of police power, he concluded.

"Solving unsolved crimes is a noble objective, 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," Scalia writes.

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