Supreme Court rules DNA samples can be taken from innocent Citizens

The U.S. Supreme Court ruled that police can routinely take DNA samples from people who are arrested but not yet convicted of a crime, and then see if the DNA matches any samples from unsolved crimes in a national database.
The case involved Alonzo King, who was arrested in Maryland for menacing a crowd with a gun in 2009. Police took a DNA swab from his cheek and sent the DNA to a national database, where it showed a match to a rape six years earlier.
King was subsequently tried for and convicted of the rape, but the conviction was thrown out on grounds that there was no warrant and no individualized suspicion that justified taking the DNA sample.
On Monday, the U.S. Supreme Court restored the conviction, comparing such DNA sampling to photographing and fingerprinting suspects when they are booked.
Writing for the five-justice majority, Justice Anthony Kennedy acknowledged that taking a DNA sample is a search, but the Fourth Amendment bars unreasonable searches, he observed, and a “gentle” swabbing of the cheek is not unreasonable. Nor, he said, is it unreasonable to use DNA to ascertain whether the arrestee has a criminal history that would make him a flight risk or a risk to the public if released on bail.
Kennedy noted that Maryland’s law provides for automatic DNA testing of arrestees only when they are accused of “serious” crimes, and that the law bars any collection or use of DNA to detect private genetic information. In such circumstances, the court said, DNA collection is a legitimate booking procedure.
Joining Kennedy in the majority were three of the court’s conservative justices — Samuel Alito, Clarence Thomas and Chief Justice John Roberts — plus the more liberal justice Stephen Breyer.
Justice Scalia, in a strongly worded dissent, excoriated the  the court’s assertion that the DNA sample was taken to identify King, saying that it “taxes the credulity of the credulous.”
“Make no mistake about it,” he warned. “Because of today’s decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason.”
Joining Scalia in dissent were three of the court’s liberals — Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.
The dissent notwithstanding, law enforcement was jubilant at the victory. Marcus L. Brown, superintendent of the Maryland State Police, said he expects that the remaining 22 states will now adopt laws like Maryland’s. DNA is used as an investigative tool to solve cold cases.
“We can hang on to that DNA,” Brown said, “and several years later, when that person commits another violent offense … we’re able to then go back and realize that these serial offenders can now be held accountable for what they’ve done.”
Boston University law professor Tracey Maclin, echoing the spirit of Scalia’s dissent, called the notion of using DNA to identify arrestees hard to swallow.
“This is not just searching somebody’s purse or knapsack who’s been placed under arrest — or even searching their car,” Maclin said. “We’re searching their person in a situation where we don’t have any basis for the search other than the fact that the guy’s been arrested.”
Gornstein concedes the point, noting that when Alito called this case perhaps the most important criminal law case in decades, he wasn’t talking about the state needing an additional tool to make bail decisions.
“I think he was quite explicit that there were these rapes and murders that were unsolved and here we have a ready mechanism for solving these crimes,” Gornstein said.
George Washington University law professor Orin Kerr, a Fourth Amendment specialist, said the court’s decision clears up most of the ambiguity that had existed about taking DNA samples from people at the time of their arrest, but he noted that the court left open some questions.
“The court is talking about serious offenses in this case, but they don’t say what counts as a serious offense or whether they’d reach the same result for a nonserious offense. So we just don’t know how far this opinion would apply,” Kerr said. Herein is the problem. Here in Baltimore County DNA samples are now routinely taken in Non Serious misdemeanor cases.
It would appear that as we enter the “Digital” age there will, increasingly, be a digital DNA profile of all citizens. Also, it now comes as a shock to law abiding citizens when they receive a letter from Law Enforcement that alerts them, that although no allegation of wrongdoing was alleged, their DNA was collected. No further explanation is provided.
The States are now free to collect DNA samples from  individuals cloaked in the presumption of innocence and not convicted of any Crime. A slippery slope indeed.
DNA labs, in highly publicized cases, have made mistakes at the most basic levels. It is hard to imagine the Founding Fathers’ countenancing this collecting of DNA samples from citizens who have not been convicted of any crime.


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