More on DNA Sample case, J. Scalia and 4th Amend

The most significant news from the Court t in the past is its five-to-four decision in Maryland v. King, holding that Maryland’s DNA Collection Act – which permits the police to take DNA from people arrested on suspicion of serious crimes and compare it to a database of DNA samples from unsolved crimes – does not violate the Fourth Amendment’s prohibition on unreasonable searches and seizures. The Court’s opinion, written by Justice Kennedy, holds that the DNA testing procedure is minimally intrusive because it only requires a cheek swab, and because people detained for serious offenses have diminished expectations of privacy anyway. Analogizing the DNA swab to photographs and fingerprinting, the Court further held that the procedure serves the important government interest of facilitating the identification of suspects in custody and is therefore reasonable under the Fourth Amendment.


Justice Scalia – joined by Justices Ginsburg, Sotomayor, and Kagan – took the relatively rare step of reading a fiery dissent from the bench, arguing that because the purpose of the DNA test is not identification, but investigation of crimes, the Fourth Amendment does not permit the police to take and test the samples without a warrant. The dissent has become an instant classic, as Justice Scalia blasts the DNA Collection Act as creating a “genetic panopticon” and excoriates the majority for turning a blind eye to the true purpose of DNA testing. The case has drawn attention because of the unusual division among the Justices: conservative hero Justice Scalia sharply criticized the pro-police ruling, while the more liberal Justice Breyer broke ranks to side with the conservative majority.

The most significant implication of the Court’s decision is that DNA testing for arrestees may become ubiquitous. According to the opinion, twenty-eight states presently have laws similar to the Maryland DNA Collection Act. Expect that number to go up. It is also likely that at least a few states will try to push the boundaries on this issue by authorizing DNA sampling in a broader range of situations – for example, for all arrestees, rather than only those brought in for serious offenses. Readers discussing the case at cocktail parties may speculate about whether states will go even further than that, requiring DNA swabs for anybody trying to enter a secure government building, or obtain welfare benefits. And of course, the case raises a litany of fascinating questions, including whether society’s interest in cracking unsolved crimes justifies suspicionless DNA testing, and more broadly whether advances in technology that enable the government to gather significant amounts of data rapidly and with minimal physical intrusion should be subject to less Fourth Amendment scrutiny. The Court’s answer appears to be “yes” to both questions.

Source: Scotusblog.com

Amongst the conservatives on the Court, and even including Kennedy, Scalia is the strongest supporter of 4th Amend rights.  He has supported the right even when there was precedent that could have been used to allow the search or seizure (e.g.,U.S. v. Jones.  Scalia's "originalism" sometimes pays off in terms of protecting civil liberties (e.g. Second Amendment).  Unfortunately, when it comes to remedies for 4th Amend violations, Scalia seems to be intent on gutting the exclusionary rule and civil liability of officers.