Supreme Court: Taking DNA Just Like Taking Fingerprints; Police May Take Every Arrestee's DNA

This might not all that bad until you realize that not all arrestees are criminals -- an arrest does not equal a conviction. An arrest is just a stop, a detainment. Traffic stops are short-duration arrests. Can DNA be taken if you're accused of having broken the speed limit?

The case split the course along statist/libertarian lines rather than left/right lines. Thus Kennedy, Roberts, and Alito joined liberal Breyer, and, maybe a little surprisingly, Clarence Thomas joined the majority opinion too. Scalia wrote the dissent that the other liberals joined.

I think it's pretty clear that Scalia is right about what the law is, and Kennedy & Co. are puffing gas about what they think the law should be, in order to run a more efficient government law enforcement operation.

And I think that's pretty clear because Kennedy and the others resort to obfuscation, which Scalia rubbishes.

Kennedy's claim is that DNA can and should be routinely taken from mere arrestees because of its important value in identifying a suspect. This is a vague word, in this context, and it selected precisely because it's vague.

The Fourth Amendment broadly rejects "suspicionless searches." It specifies that any search -- any involuntary evidence collection, that is, where the targeted person has a reasonable expectation of privacy -- be conducted pursuant to a specific, particularlized, announced suspicion of a crime, written up in a warrant, signed by a judge.

The taking of DNA as a routine operation is not that-- there is no warrant, no judge's signature, no specific annunciation of rational reasons to suspect a person. It's just a "suspicionless search" of, in this case, the arrestee's genetic makeup.

Now, to argue against that -- which is hard to do, because that's plainly what the DNA sampling is -- Kennedy resorts to claiming that there are reasons that have noting to do with suspicionless searches of the arrestee's body, mundane bureaucratic functions like "identifying" the suspect -- that is, confirming that the man you have arrested, calling himself, say, Allen Brown, is in fact Allen Brown, by checking the DNA you take from him against the National Genetic Identify File and thereby determining yup, it's Allen Brown.

Of course, this is ludicrous, as there is no "National Genetic Identity File," and no one checks CODIS, the national unsolved-crime DNA databank, to determine if the man calling himself Allen Brown is in fact Allen Brown. What they check it for is to see if Allen Brown's DNA matches up with any DNA collected from unknown persons at crime scenes.

This is what sets Scalia off, the pure intellectual and verbal dishonesty of this bait-and-switch, wherein Kennedy asserts that DNA is being taken to check if Allen Brown is Allen Brown, when he knows that's not the purpose of taking it. In fact, in the instant case, the police never bothered checking the arrestee's DNA for almost three months; if they really were concerned about the "identity" of the arrestee -- if they really weren't sure they had the right name for the guy in their custody -- they would have rushed the DNA test a lot quicker than that.

But of course they did know exactly who they had in their custody, and the DNA was not taken for purposes of "identifying" him. It was taken to check his DNA profile against the profiles of unknown perpetrators of past crimes.

Which is why he was subsequently arrested for rape.

There is no doubt that this arrest is good for society generally -- but based on Kennedy's dishonest defense of the practice, it also does not seem to conform to the Constitution or to American law.

And further, it seems that it would be a rather easy thing to correct: Post-conviction, the state could more easily justify swabbing all convicted criminals for DNA and, thereafter, checking those profiles against those in CODIS (a database of unknown criminal genetic signatures, as Scalia points out, not known ones, which would be way of it were it really for purposes of "identification.")

But this seems to be a case where we're throwing out the Constitution to help the State function more smoothly and efficiently.

We seem to be doing an awful lot of that lately.

posted by Ace at 02:30 PM

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