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Court OKs Swabbing Suspects

In a decision that is expected to be praised by police and pummeled by some civil rights groups, the US Supreme Court yesterday upheld the power of government, at every level, to collect and keep DNA samples from people who are arrested for serious crimes, ScotusBlog reports.

Anyone who watches network detective shows knows that DNA evidence and matching offers tremendous value to police, particularly in cold cases. Cops want to be able to expand the pool of genetic 'fingerprints' as much as possible, enabling deep searches to link a suspect who was picked up for one act to others in the past.

But the plaintiffs in the case of Maryland v. King argued that taking DNA samples from someone who is merely suspected of a crime and then trying to match them genetically to other, past crimes without a warrant violates the 'unreasonable search and seizure' aspect of the Fourth Amendment.

The decision was a surprising 5-4 split that saw unlikely alliances, as Justice Antonin Scalia joined the liberal wing of the bench in voting against the ruling and Justice Stephen Breyer swung with conservatives in the majority who agreed that the practice is constitutional.

In his dissenting minority opinion, Scalia said that the Fourth Amendment forbids searching people for evidence of a crime when there is no reason to believe they are guilty of that crime or in possession of incriminating evidence.

"That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment," Scalia said in summary from the bench.

The majority opinion held that such searches are not unreasonable and they are not much different from fingerprints, mugshot searches, or police lineups.

There are good reasons for the disagreement, because the constitution likely encouraged disagreement over such important issues, Akhil Reed Amar, a Yale law professor, and Neal Katyal, former acting US solicitor general and Georgetown professor, write in an op-ed in today's New York Times.

The side-switching of the justices and the closeness of the vote suggests that this was a difficult question before the Court, one that Justice Samuel Alito called "perhaps the most important criminal procedure case that this Court has heard in decades."

Still, Amar and Katyal say the majority got this one right. The Fourth Amendment leaves a fair amount of leeway in deciding what is and is not "unreasonable," they add.

"Contrary to Justice Scalia's view, the framers [of the Constitution] did not answer the DNA question in 1791. Rather, the framers posed the question for us, their posterity," Amar and Katyal note.

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