All apologies for the late update. Putting the new firm together is taking priority.
In another 5-4 decision certain to inspire confidence in the citizenry that words truly have meaning and the law isn’t simply made up by by a handful of people in robes, the United States Supreme Court once again used the telephone game called the common law to rewrite the Bill of Rights.
In Maryland v. King(opinion here: maryland v king) Justice Kennedy joined with conservative justices to allow DNA collection via cheek swab as part of the routine booking process.
The story: Woman is raped in 2003, DNA is gathered at the site, but it turns into a cold case. Man is arrested 6 years later in a different state on an assault charge. As part of the booking procedure they swab the inside of his cheek for DNA and send it off to the labs. A few months pass and his DNA is run through a database, matching the DNA at the rape site. Man is convicted of rape.
Why the Supreme Court says it doesn’t violate the Fourth Amendment: DNA is like, super cool and works really well. I mean God, how come you like criminals so much? It’s just used to identify criminals. It’s just like fingerprints.
Why Scalia correctly dissents (again): Clearly it isn’t simply used to ID criminals because they were running the Defendant through the criminal process for months while the DNA was being processed. It’s a safe bet that they weren’t running the Defendant through the criminal system as a John Doe. They knew exactly who he was each step of the way. DNA does work well and, “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 again provides a fantastic, witty, and well thought out dissent. This DNA was not gathered and used after a conviction. It was gathered after an arrest. It was never used to ID the suspect, but rather as a search of his body for the express purpose of gathering evidence for crimes he was not under investigation for. The fact that Kennedy bases the reasonableness of the search in ANY part on the fact that a cheek swab is not painful and less invasive than a blood draw is sophistry. Comparisons to fingerprinting and blood draws is weak. It shows the problem with common law. Sometimes situations and technology are new, and to force the square peg into a round hole is to do a grave injustice. Now, when the next piece of tech comes along, instead of saying, “It’s just like fingerprinting”, they’re going to say, “It’s just like a DNA cheek swab”.
Look, if they want to get a DNA database after you’ve been convicted of a crime, we can talk. It’d be far more reasonable, although I think the key argument is simply that you shouldn’t be allowed to have your person, houses, papers, or effects invaded without individualized suspicion of a specific crime, another point Scalia touched on. The government also promises that your DNA is only to entered into a national database for “serious offenses”. Pray tell why should a person ever have his liberty offended by incarceration for any “non-serious offense”?
I hate to spend this post practically copying everything Scalia has said (No I don’t), but he sums it up perfectly:
“When there comes before us the taking of DNA from an arrestee for a traffic violation, the Court will predictably (and quite rightly) say, ‘We can find no significant difference between this case and King.’ 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.”
Friends, the era of of government honoring your privacy is OVER. The sooner you accept that fact, the sooner we can learn how to fight to win it back.