A U.S. Supreme Court decision that clears the way for police to take a DNA swab from anyone they arrest for a serious crime is a collision between 21st Century technology and 18th Century ideals. And in this case, the 21st Century won.
Ruling in a Maryland case, the court split 5-4 to allow DNA samples to be taken from suspects. Justice Anthony Kennedy, writing for the majority, said analyzing an arrestee’s “DNA is, like fingerprinting and photographing, a legitimate police booking procedure ...”
That may be true, but it ignores the fact that a DNA analysis is also a search and, as a Maryland court had earlier ruled, it violates the assumption that a suspect has “a (sufficient expectation) of privacy against warrantless, suspicionless searches” under the Fourth Amendment to the Constitution.
Justice Antonin Scalia, one of the court’s most conservative members, predicted the limitation to “serious” crimes would not last. “Make no mistake about it,” he said “... your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason.”
“This will solve some extra crimes, to be sure,” he wrote. “But so would taking your DNA when you fly on an airplane — surely the (Transportation Security Administration) must know the ‘identity’ of the flying public. For that matter, so would taking your children’s DNA when they start public school.”
This is the classic slippery slope — consequences the Founding Fathers likely never imagined when they wrote the Fourth Amendment to protect individuals from overzealous, unfair prosecution.
Who is to say how DNA information, once in the hands of the government, will be used?