U.S. Supreme Court Upholds DNA Swab For People Under Arrest

Supreme Court                                                                                             SC

In a narrow 5-4 decision, the Supreme Court of the United States decided upheld the right of law enforcement officers to take DNA cheek swabs of people under arrest. This is a highly controversial decision because even after being placed under arrest, the presumption of innocence remains, until conviction by a jury. However, in more than half of the states, this procedure is being used to solve previously unsolved crimes which is why it’s so popular. The Justices in this case had to decide on the delicate balance between the right to privacy and the benefits of a simple, non-intrusive, cheek swab. Writing for the majority, Justice Anthony Kennedy stated, “DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure. Taking and analyzing a cheek swab of the arrestees’ DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.” What’s so interesting about the decision is that one of the most conservative justices on the court, Antonin Scalia, wrote the angry dissent, essentially stating that it violates the Fourth Amendment, “Make no mistake about it: because of today’s decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason,” Scalia warned. “This will solve some extra crimes, to be sure. But so would taking your DNA whenever you fly on an airplane.” Although normally siding with the conservatives on most other issues, Scalia has been voting consistently against what he deems violations of personal liberties. Over the last year, the Supreme Court has ruled on many difficult Fourth Amendment cases deciding for example, that a tracking device could not be attached to a car in order to monitor a suspect’s movements.  Scalia seems particularly concerned about the erosion of our Fourth Amendment rights. Scalia’s dissent continued, “If you believe that a DNA search will identify someone arrested for bank robbery, you must believe that it will identify someone arrested for running a red light,” he said, concluding, “The proud men who wrote the charter of our liberties would not have been so eager to open their mouths for royal inspection.” Justice Elena Kagan wholeheartedly agreed stating “that if it works so well, why don’t we do this for anybody who comes in for a driver’s license?”  The point being, anyone could be swabbed to determine if they are a possible suspect in a crime and that’s a slippery slope to be avoided.  Justice Alito writing for the majority was most supportive of this procedure stating that it’s “the fingerprinting of the 21st century.” He noted that the criminal justice system has “lots of murders, lots of rapes that can be solved.”  So in other words the good outweighs the possible abuses. We can expect to see this issue re-visited, as a 5-4 decision is hardly definitive enough to stand up to future scrutiny.

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