Supreme Court Approves Involuntary DNA Samples From Suspects And Opens The Door To A Massive DNA Databank

225px-Anthony_Kennedy_Official220px-DNA_OverviewIn 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.

scaliaWhere 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.”

225px-010_alitoWhat 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

108 thoughts on “Supreme Court Approves Involuntary DNA Samples From Suspects And Opens The Door To A Massive DNA Databank”

  1. The remaining 98 percent of our DNA, once dismissed as “junk DNA” which is a term used in the opinion, is reasonable cause for consideration, since it is microbial and from a vast unknown realm (“AT THIS TIME”).

  2. Junk DNA is used for identity and other purposes:

    Collected samples are stored, and many state laws do not require the destruction of a DNA record or sample after a conviction has been overturned. So there is a chance that a person’s entire genome may be available —regardless of whether they were convicted or not. Although the DNA used is considered “junk DNA”, single tandem repeated DNA bases (STRs), which are not known to code for proteins, in the future this information may be found to reveal personal information such as susceptibilities to disease and certain behaviors.

    (Human Genome Project). This can be problematic to the extent that genetic material can change over time:

    More problematic is the reality that the human genome is still a vast catalogue of the unknown and scarcely known. The Human Genome Project’s most startling finding was that human genes, as currently defined, make up less than 2 percent of all the DNA on the genome, and that the total number of genes is relatively small. Scientists had predicted there might be 80,000 to 140,000 human genes, but the current tally is fewer than 25,000 — as one scientific paper put it, somewhere between that of a chicken and a grape. The remaining 98 percent of our DNA, once dismissed as “junk DNA,” is now taken more seriously. Researchers have focused on introns, in the gaps between the coding segments of genes, which may play a crucial role in regulating gene expression, by switching them on and off in response to environmental stimuli.

    (One Man’s Junk Gene). There is none so sure as the prosecutor.


    Can you hear me now? Eep. The National Security Agency (NSA) has been collecting telephone records of millions of Verizon customers – right down to local call data – under a top-secret court order issued in April, Britain’s The Guardian newspaper reported late Wednesday.

    Under the Foreign Intelligence Surveillance Court (FISC) order, the Guardian reported, Verizon Business Services must provide the NSA “on an ongoing daily basis” with information from calls between the U.S. and overseas – but also with calls entirely inside the United States. Calls made entirely overseas were not affected. It was unclear whether phones in other Verizon divisions — its regular cell phone operations, for instance — were similarly targeted.

  4. Here’s Prof. Irwin Kerr’s take on that, Nick:

    “After hearing about today’s 5-4 decision in Maryland v. King, holding (as Jonathan notes below) that the government can collect and analyze DNA incident to arrest without a warrant, some might be surprised that conservative Justice Scalia voted for the defense side while the liberal Justice Breyer voted for the government. They shouldn’t be. In Fourth Amendment cases this Term, that has been a consistent pattern.

    Justice Scalia has been on the defense side of every non-unanimous Fourth Amendment case this term: King (today’s case in which he wrote the dissent), Bailey (in which he joined the 6-3 majority), Jardines (in which he wrote the majority), and McNeely (in which he joined the Sotomayor plurality/majority opinion). In contrast, Justice Breyer has been on the government’s side in each of the Term’s non-unanimous Fourth Amendment cases: King (in which he joined Kennedy’s majority), Bailey (in which he wrote the dissent), Jardines (in which he joined the dissent) and McNeely (in which he joined the more government-friendly Roberts concurrence/dissent with Alito).

    Some Fourth Amendment cases have drawn out those dynamics in the past. For example, Justice Scalia voted for the defense and Justice Breyer for the government in Arizona v. Gant (2009). But I don’t recall such a consistent run of Fourth Amendment cases in which Justice Scalia was on the defense side and Breyer was on the government side.

    What explains the trend? It might just be a coincidence. But I suspect some of it reflects the fact that a lot of the recent cases have involved Fourth Amendment balancing. Scalia dislikes balancing, while Breyer revels in it. Those different instincts may pull their votes in different directions. Also, defense counsel have realized that Justice Scalia is in play in Fourth Amendment cases if you can find him the kind of argument that he finds appealing. So we’re seeing more defense-side briefs targeting Scalia’s vote. But the problem is that Scalia and Breyer look at Fourth Amendment cases in exactly opposite ways. The kind of argument that appeals to Scalia can lose Breyer, and the kind of argument that appeals to Breyer can lose Scalia.”

  5. There’s been a lot of grudging kudos to Scalia. What about Breyer??

  6. Paul 1, June 5, 2013 at 8:45 pm

    “Didn’t I read somewhere in the comments about the government keeping this DNA database secure?”

    My friend, the one rule of thumb is that water always rises to its own level.

    The sooner you figure this out, the sooner you will be able to plan for the future.


  7. Didn’t I read somewhere in the comments about the government keeping this DNA database secure? So in todays news is a report of the NSA having a FISA court order for millions of calls/day from Verizon phones being handed over from Verizon to the NSA.

    Sure, the government can keep things secret.

    Trust me, I have your best interests at heart.

    This is why I refuse to vote any more RepoDemos or DemoRepos into office. They have both proven themselves incapable of following our constitution.

  8. “The notion that the microbial world is significant is not all that new and DNA research handled that issue a long time ago.”

    Yeah, but that’s not going to stop Dredd from completely screwing up the science in his pursuit of microbe worship. He’s been misconstruing, misstating and misunderstanding the basics of biology for a long time around here. He wants so bad for the Star Wars midi-cholrian myth to be true that he just hates it when real science gets in his way so don’t confuse him with facts. It only makes him shout louder.

  9. Dredd 1, June 5, 2013 at 6:38 am

    “I know that it is a difficult subject to grasp.

    “One scientist made the statement that discovery that human “junk DNA” is not human or junk is the greatest impact on medical science in 150 years.

    “No wonder people don’t get it.”

    What I “get” is that you do not appear to know the difference between a single cell organism and DNA.

    You seem to be under the impression that microbes have different DNA from that of their human host. Now, I can imagine that a piece of meat might have different DNA, as long as it is not my meat, but I don’t have to ingest the microbes that live in my body. They are there, or their ancestors are there, before I am born.

    The notion that the microbial world is significant is not all that new and DNA research handled that issue a long time ago.


  10. James,

    Then you get into resisting and opposing a law enforcement officer….. Or refusal to follow a lawful order by a law enforcement officer….And that’s a crime as well….felony in most states…. As well as could be a misdemeanor…… Why its been upheld escapes me….

  11. Let me ask you this, let us say that they manage to eradicate all crime eventually. What will they turn to then? I predict they will then invent crimes.

  12. I suggest some of you read up on the current research by law enforcement agencies into using scanners to read the brain to attempt to determine lies as well as even what the person is thinking about.

    What once sounded like nefarious science fiction is now becoming Orwellian reality. We are running out of precious time to stop and reverse this insanity


    Maryland v. King and the Total Loss of Our Bodily Integrity

    By John W. Whitehead
    June 03, 2013

    “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.” – Justice Antonin Scalia, dissenting in Maryland v. King

    As I document in my new book, A Government of Wolves: The Emerging American Police State, our freedoms—especially the Fourth Amendment—are being choked out by a prevailing view among government bureaucrats that they have the right to search, seize, strip, scan, spy on, probe, pat down, taser, and arrest any individual at any time and for the slightest provocation.

    Now, thanks to the U.S. Supreme Court’s devastating decision in Maryland v. King—in which a divided Court determined that a person arrested for a crime who is supposed to be presumed innocent until proven guilty must submit to forcible extraction of their DNA—you can add invasive DNA sampling to the list of abuses being “legally” meted out on the long-suffering American populace.

    Once again the Court has sided with the guardians of the police state over the defenders of individual liberty in determining that DNA samples may be extracted from people arrested for “serious offenses.” While the Court claims to have made its decision based upon concerns of properly identifying criminal suspects upon arrest, what they have actually done is opened the door for a nationwide dragnet of suspects targeted via DNA sampling.

    The case revolves around Alonzo King, who was arrested on April 10, 2009, and charged with assault. Relying on a state law which authorizes DNA collection from people arrested but not yet convicted of a crime, while processing King’s arrest, police obtained his DNA via a forcible cheek swab without first procuring a warrant. This information was not used to identify him, but rather sat in a police file, and then a crime lab, before finally being tested some months later. In the meantime, King was positively identified via fingerprinting and other methods. Once his DNA was finally tested, over three months later, the results were entered into Maryland’s DNA database, alongside other personally identifying information. This information was then forwarded to the FBI’s national DNA database, where it was found to be a match to evidence taken from the scene of an unsolved rape that occurred in 2003. King was then tried and convicted of the 2003 rape.

    On appeal, the Maryland Court of Appeals ruled in April 2012 that the state law used to forcibly extract King’s DNA violated the Fourth Amendment. In an unusual move, in July 2012, Supreme Court Chief Justice John Roberts issued a stay of the lower court’s ruling, prior to the Court’s even agreeing to hear the case, using the rationale that collecting DNA from people accused of serious crimes is “an important feature of day-to-day law enforcement practice in approximately half the states and the federal government.”

    Interesting side note on Roberts: During his stint on the U.S. Court of Appeals, Roberts issued a ruling in a case involving a 12-year-old girl who was “arrested, searched, and handcuffed. Her shoelaces were removed, and she was transported in the windowless rear compartment of a police vehicle to a juvenile processing center, where she was booked, fingerprinted, and detained until released to her mother some three hours later—all for eating a single french fry in a Metrorail station. The child was frightened, embarrassed, and crying throughout the ordeal.” Nevertheless, Roberts ruled that her constitutional rights had not been violated in any way. As one Washington Post reporter noted at the time, you can tell a whole lot about Roberts “by looking at how he handled a single french fry.”

    Considering that Roberts, despite his stated reservations, saw little need to restrain the police in searching a 12-year-old for a french fry, it should come as no surprise that he sees nothing wrong with forcible DNA extractions by police of individuals presumed innocent until proven guilty.

    Thus, when King’s lawyers mounted their appeal to the Supreme Court, insisting that the police had not obtained a warrant in order to extract King’s DNA and had no particular reason for obtaining his DNA during his arrest, Roberts sided with the police, justifying the practice as being a legitimate means of identifying individuals suspected of having committed “serious offenses.” With Justices Anthony Kennedy, Clarence Thomas, Stephen Breyer and Samuel Alito joining Roberts in affirming the practice of warrantless DNA grabs by the police, the Court’s 5-4 ruling further guts an already severely disemboweled Fourth Amendment and goes so far as to equate forcefully obtaining a DNA sample to “fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.”

    The only glimmer of reason came from Justice Antonin Scalia, who wasted no time dispatching the Court’s dubious claim that DNA is necessary for suspect identification. Scalia was joined in his biting dissent by the three female justices on the Court (Ginsburg, Sotomayor, and Kagan). As the minority opinion pointed out, Maryland actually took a full three months to test King’s DNA before handing the DNA over to the FBI to be matched against a database of unsolved crimes (that is, crimes in which the suspect has not been identified). Clearly, the state’s intention was not to identify King, but to potentially implicate him in a crime other than the one for which he was accused.

    While the Court majority attempted to delineate a difference between collecting DNA in general versus cases in which the suspect is accused of a “serious offense,” Scalia rightly pointed out how meaningless this distinction really is, given that the Court’s ruling succeeds only in burdening “the sole group for whom the Fourth Amendment’s protections ought to be most jealously guarded: people who are innocent of the State’s accusations.” For example, if such a questionable practice were to prevail simply for the sake of “solving more crimes,” as Scalia suggests, it would not take much to justify 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.”

    As disheartening as this ruling is, it is simply one more volley in a long line of attacks on our right to be free from unreasonable searches and seizures by government agents. In the past few years, the Supreme Court has determined that freedom from unreasonable government intrusion, a core component of the United States Constitution, is of little importance in an age of surveillance and security at any cost.

    Just consider the ramifications of some of the muddle-headed rulings handed down in recent years:

    It’s okay for police officers to use excessive force as long as they don’t know that the Constitution prohibits them from doing so. In 2012 the Supreme Court let stand a Ninth Circuit Court of Appeals decision in Brooks v. City of Seattle, in which police officers who clearly used excessive force when they repeatedly tasered a pregnant woman during a routine traffic stop were granted immunity from prosecution. The Ninth Circuit actually rationalized its ruling by claiming that the officers couldn’t have known beyond a reasonable doubt that their actions—tasering a pregnant woman who was not a threat in any way until she was unconscious—violated the Fourth Amendment.

    In an effort to make life easier for overworked jail officials, they can strip search anyone brought in, under any pretext. In Florence v. Burlington, a divided Supreme Court actually prioritized making life easier for overworked jail officials over the basic right of Americans to be free from debasing strip searches. In its 5-4 ruling, the Court declared that any person who is arrested and processed at a jail house, regardless of the severity of his or her offense (i.e., they can be guilty of nothing more than a minor traffic offense), can be subjected to a virtual strip search by police or jail officials, which involves exposing the genitals and the buttocks.

    Police officers can break into homes, without a warrant, even if it’s the wrong home as long as they think they have a reason to do so. In an 8-1 ruling in Kentucky v. King, the Supreme Court placed their trust in the discretion of police officers, rather than in the dictates of the Constitution, when they gave police greater leeway to break into homes or apartments without a warrant. Despite the fact that the police in question ended up pursuing the wrong suspect, invaded the wrong apartment and violated just about every tenet that stands between us and a police state, the Court sanctioned the warrantless raid, leaving Americans with little real protection in the face of all manner of abuses by law enforcement officials.

    The sensibility of police dogs trumps the Constitution. In Florida v. Harris a unanimous Court declared roadside stops to be Constitution-free zones where police may search our vehicles based upon a hunch and the presence of a frisky canine. The Court was presented with the case of Clayton Harris who, in 2006, was pulled over by Officer William Wheetley for having an expired license tag. During the stop, Wheetley decided that Harris was acting suspicious and requested to search his vehicle. Harris refused, so Wheetley brought out his drug-sniffing dog, Aldo, to walk around Harris’ car. Wheetley searched the car and found materials allegedly used in the manufacture of methamphetamine. Harris challenged the search, arguing that the police had not provided sufficient evidence that Aldo was a reliable drug-sniffing dog, thus his supposed alert on Harris’ door did not give the officer probable cause to search the vehicle. But the U.S. Supreme Court sided with police by claiming that all that the police need to do to prove probable cause for a search is simply assert that a drug detection dog has received proper training. As such, the Court has now given the police free reign to use dogs as “search warrants on leashes,” justifying any and all police searches of vehicles stopped on the roadside. The ruling turns man’s best friend into an extension of the police state.

    This is what one would call a slow death by a thousand cuts, only it’s the Fourth Amendment being inexorably bled to death. This latest wound proves that there really is nothing standing between the American people and the police state which has slowly grown up around our society.

    Any American who thinks they’re safe from the threat of DNA sampling, blood draws, and roadside strip and/or rectal or vaginal searches simply because they’ve “done nothing wrong,” needs to wake up to the new reality in which we’re now living. As the Supreme Court’s ruling in Maryland v. King shows, the mindset of those in the highest seats of power—serving on the courts, in the White House, in Congress—is a utilitarian one that has little regard for the Constitution, let alone the Fourth Amendment. Like Justice Scalia, all I can hope is that “today’s incursion upon the Fourth Amendment” will someday be repudiated.

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