In dissent, Scalia joins with court’s liberals to blast

[frigidmagi]

Yahoo

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.

Damn if I don't agree with him.

[General Havoc]

Scalia is an arch-conservative nut, but he's one of the sharpest justices to ever sit on the court, and utterly unafraid to rule like this.

[Lys]

This is interesting, the argument that taking DNA samples is standard booking procedure in the same vein as taking fingerprints struck me as sensible. However Scalia makes a good point by appealing to actual practice with respect to DNA which is, he says, not the same as that of fingerprints, and thus not truly equivalent.

As Havoc says, despite his political beliefs Scalia is sharp, incisive, and intelligent, and he is never scared to speak his mind. One interesting thing is that a lot of people think Thomas just follows Scalia's lead, but i recall reading that it's actually something of the other way around. Scalia's rulings tend to be dragged rightwards by Thomas' influence. That Thomas never follows when Scalia decides to defy expectations and side with the liberal part of the court leads me to believe that this is indeed the case.

[Comrade Tortoise]

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.

Scalia is just factually wrong here. Most states have DNA testing backlogs that stretch for months or even years in states with big populations and high crime rates. Not being sent to the database for months is a pretty good turnaround time all things considered. Even in a well funded university research lab, samples can sit in the freezer for months just because so many are collected that it takes a long time to run, and then more importantly process the information from the samples.


I am going to have to do something I do not often do. Publicly agree with the conservatives on the court. DNA testing is exactly analogous to a fingerprint and the database procedures used are identical. The only difference is that the DNA takes longer to process and is more accurate and reliable than fingerprints when DNA evidence is present at a crime scene.

"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.

At least from this and other quotations of his cited above, he should also for the sake of consistency object to fingerprinting upon arrest as well.

[General Havoc]

I must concede that I also side with the conservative wing on the court here. I do not find a significant factual distinction between DNA swab-testing and fingerprinting. I could entertain an argument that both are unreasonable search and seizure, but not that one is and the other is not.

I think the direction you want to tackle this from a 4th amendment perspective is the concept of frivolous arrest in the first place, not this.

[Comrade Tortoise]

I must concede that I also side with the conservative wing on the court here. I do not find a significant factual distinction between DNA swab-testing and fingerprinting. I could entertain an argument that both are unreasonable search and seizure, but not that one is and the other is not.

I think the direction you want to tackle this from a 4th amendment perspective is the concept of frivolous arrest in the first place, not this.

That is about where I am at. We are talking about the same procedural rules but with a different bit of identifying information being collected. If a person who is just now being arrested were fingerprinted and the prints came up on a six year old unsolved murder case, the defendant would have been refused the initial appeal. The caselaw there is settled.

We can talk about the police having too much power--too much power to lie and mislead during questioning, too much power to get you to reveal information or give them things without you knowing you have the legal right to refuse. The list goes on. But the procedures used with fingerprints and DNA swabs at booking is identical. They take the information, put it into a database, query the database for prior matching samples, and put that information into the same database to be queried by subsequent DNA samples.

So if one is legal, they both are. If one is illegal, the same legal reasoning that prohibits them applies to both.

[General Havoc]

Moreover, it's worth pointing out that of the 30 states that have mandatory DNA swabbing, 26 have laws in place mandating the destruction of all arrest evidence (fingerprints, DNA, the works) if the arrest is later determined legally to have been "frivolous". Obviously it's not exactly an easy thing to prove, but the protections against such abuses do exist in some form. Given that, I am left in the embarrassing position of being more conservative than Justice Scalia on this subject.