In a blow to civil liberties, the Supreme Court yesterday voted 5-4 to allow police to collect DNA from suspects arrested in serious crime cases. The decision by Justice Anthony Kennedy opens the door for the collection and retention of a massive DNA databank by the states and federal government. The decision produced a strange lineup with Justice Antonin Scalia writing a dissent (with Ginsburg, Sotomayor, and Kagan) and normally liberal Justice Stephen Breyer joining Kennedy, Thomas, Alito, and Roberts. It is a disastrous case for Breyer to lose his bearings. His switch denied the creation of a bright line rule protecting privacy and forestalling such a databank.

The case involves Alonzo King Jr., who was arrested in 2009 for menacing a group of people with a shotgun. Under state law, police took the DNA sample and it was matched with a sample collected in a 2003 unsolved rape case leading to a later rape conviction. It was a telling case since critics have insisted that the samples have little to do with identification or processing a suspect, but rather investigating other crimes.

Kennedy was fairly dismissive over the intrusion of a swab and the collection of a DNA sample in his opinion. He insisted that it was much “like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.” That is a bizarre claim since the DNA sample carries far more extensive information on a person and can be used to a far greater extent in future searches or testing by police. Kennedy also bought the rather implausible argument that this is merely used to confirm criminal history and identify individuals in custody. In 99.999% of case, the identity of the subject is not in dispute and easily confirmable from computer systems. This is about solving past crimes and creating a data bank for future investigations.

Where Breyer forgot his civil liberties roots, Scalia remembered his libertarians roots.

Scalia mocked (rightfully) Kennedy’s logic; “Today’s judgment will, to be sure, have the beneficial effect of solving more crimes,” Scalia said. “Then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the ‘identity’ of the flying public), applies for a driver’s license, or attends a public school. Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.”

The court majority ruled against Alonzo King Jr., who was arrested in 2009 based on accusations he menaced a group of people with a shotgun. Police took a DNA swab of his cheek as part of a routine booking procedure for serious offenses in Maryland. The DNA profile matched a sample collected in a 2003 unsolved rape case, leading to King’s trial and conviction on the rape charge.

Under Maryland law, DNA may be collected for those arrested for offenses including crimes of violence, attempted crimes of violence, burglary and attempted burglary. Crimes of violence include murder, rape, first-degree assault, kidnapping and arson.

Kennedy said ascertaining a suspect’s identity and criminal history are critical when there is probable cause for arrest. Both serial killer Joel Rifkin and Oklahoma City bomber Timothy McVeigh were stopped for driving without a license plate, for example.

“An individual’s identity is more than just his name or Social Security number, and the government’s interest in identification goes beyond ensuring that the proper name is typed on the indictment,” Kennedy wrote. Police take a mug shot and show it to witnesses; they take fingerprints and compare it to a database. “In this respect the only difference between DNA analysis and the accepted use of fingerprint databases is the unparalleled accuracy DNA provides,” Kennedy said.

When police use the suspect’s DNA profile to search records in their possession, it “is no different than matching an arrestee’s face to a wanted poster of a previously unidentified suspect; or matching tattoos to known gang symbols to reveal a criminal affiliation; or matching the arrestee’s fingerprints to those recovered from a crime scene,” Kennedy said. DNA collection also helps officers know the type of person they are detaining, helps determine whether a suspect has a record and is inclined to flee, and helps assess the danger to the public if the suspect is freed on bail.

“By comparison to this substantial government interest and the unique effectiveness of DNA identification,” Kennedy said, “the intrusion of a cheek swab to obtain a DNA sample is a minimal one.”

The analysis could change, Kennedy said, if technological changes make it possible to “analyze samples to determine, for instance, an arrestee’s predisposition for a particular disease or other hereditary factors not relevant to identity.”

Scalia’s dissent, however, predicted that the decision will eventually be extended to arrests for less serious crimes. “Make no mistake about it,” he wrote. “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.”

What is interesting is that Alito said in oral argument that the case was “the most important criminal procedural case that this court has heard in decades.” Most people assumed that he was speaking of the danger to individual rights, but they do not know Alito who votes almost uniformly for police powers, as he did as a lower court judge. He joined the majority in stripping citizens of protections from such searches.

The majority did what is has always done when reducing privacy or individual rights: it suggested it was ruling narrowly by stressing that this is a case involving a major felony. However, that distinction is lost on the rationale that such testing is akin to fingerprinting and simply another form of identification. Scalia’s prediction is all too likely to come true: “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.”

Here is the opinion: 12-207_d18e