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.”
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.
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.