SCOTUS King Decision Opens Dangerous Door

Those who follow the Supreme Court no doubt noticed that SCOTUS released its decision this week in the case of Maryland v. King 569 U.S. _____(2013). By a margin of 5-4, the Court held that officers, upon making an arrest for a serious offense, may take and analyze DNA taken through a cheek swab as part of their booking procedure.  Such a procedure, they say, is akin to a fingerprint or "mugshot" photograph and is reasonable under the Fourth Amendment. Many on the side of "law and order" will no doubt laud this decision as a common sense victory for law enforcement.  Problem is, there is nothing common sense about it.

Alonzo King was arrested in Maryland for pulling a gun on some people in 2009.  Pursuant to a Maryland law that allows police to collect a DNA from the cheeks of those arrested for "serious offenses," King's DNA was collected.  While King awaited the adjudication of the gun case, his DNA was run through CODIS, the Combined DNA Index System, which contains the combined records of DNA laboratories from the local through the state level.  King's DNA matched a DNA sample taken in an unsolved 2003 rape case.  He was charged with the rape and convicted. 

The Court rests its decision on the rationale that the DNA is taken for identification purposes only - not for investigative purposes.   Suspects lie about their identity all the time, so says the Court.  While fingerprinting is a more than sufficient means to identify someone, then DNA identification is even better.  Nothing is more accurate at identifying a person than DNA, after all. And since the search is being done for identification, no particularized suspicion based on probable cause is required.  And neither is a warrant.  And so we have our newest exception to the warrant requirement of the Fourth Amendment.

Certainly, history is full of cases in which SCOTUS has carved out reasonable exceptions to the Fourth Amendment warrant requirement.  Terry stops and airport searches, for example, are allowed for safety reasons.  drunk driving checkpoints are allowed as well, and serve to both identify those who are in violation of the law and to deter such violations.  These types of exceptions to the Fourth Amendment are termed "special needs" searches.  The Court, until now, has been very careful in carving out these narrow exceptions.  However, until King, the Court had not indicated a willingness to approve searches "whose primary purpose was to detect evidence of ordinary criminal wrongdoing."  Indianapolis v. Edmond, 531 U.S. 32, 38 (2000).

The majority's assertion in King that DNA swabbing is akin to other non-investigatory booking procedures and special needs searches defies reality.  Just how much, is reflected in the strange and almost unheard of alliance formed between Justices Scalia, considered by many to be the most conservative member of the Court, and Justices Ginsburg, Sotomayor and Kagan, the Court's clear liberals.  This particular alliance is so unusual that when I first learned of it I thought the earth's poles must have shifted.  To his credit, Scalia does an excellent job in his dissenting opinion in disassembling the majority's assertion regarding the purpose of the DNA collection, exposing the only truly logical reason to collect DNA - investigation.

So what if the DNA is used for investigation, one might say.  "I'm never going to be arrested for a "serious offense!"  "I haven't done anything to have to worry about the police getting their hands on my DNA," many might say. 

But there are some practical problems with the decision in the first instance.  The Court claims that, if a person is ultimately acquitted of the offense for which they were charged, the DNA will be erased from the system.  Anyone with experience in criminal expungements can tell you that what the State says it erases and what it actually erases are two very different things.  Second, what are the limitations on the decision.  Is it limited to only "serious offenses" (whatever the heck that means)? Police take fingerprints for misdemeanor arrests as well.  If DNA swabbing is no different than a fingerprint, why not take DNA for misdemeanor offenders as well? 

Aside from the practical issues presented by the decision, the decision's major flaw and danger is that it is intellectually dishonest.  There is nothing I despise more than intellectual dishonesty.  Don't try to sell me a bad thing and try to make it look like a godsend.  The problem with intellectual dishonesty is that it signals a willingness to reach a desired result by tinkering with logic.  The Court, instead of simply saying that it wishes to give law enforcement an additional tool, Constitution-be-damned, the Court pretends that the exception is constitutionally permissible. 

This willingness to be dishonest should concern every law abiding citizen.  Because THE COURT MAY NOT STOP THERE.  If they are willing to defy logic in this case, what happens when law enforcement finds another unconstitutional but awfully handy tool?  I have to admit, the opinion is even more surprising, considering this is the same court that said the police could not trail suspects via electronic GPS for an extended period of time.  They also said that police may not enter a home without a warrant simply because a K-9 officer at the threshold of a home alerts to the presence of narcotics. 

So while our homes are still somewhat protected from warrantless searches, our bodies, apparently, are not.  SCOTUS has opened a very large door to a scary, dark place.  Court precedents tend to lead to Court trajectories.  And the Court's willingness to eliminate the warrant requirement in this instance may very well be the beginning of the end of the Fourth Amendment.  Let us not forget that the Fourth Amendment is there to protect everyone - not just the guilty.

Just Keepin in Real.
HKB