A recent decision by the U.S. Supreme Court has paved the way for a new intrusion into the Fourth Amendment search and seizure rights of those arrested for a criminal offense. In a case that has been touted as a conflict between the privacy of individuals and modern forensic technology, the justices ruled that law enforcement agencies could take DNA swab of those that they have arrested. While an arrest does not establish that the person taken into custody has committed a crime, the narrowly divided court approved the practice of taking DNA swabs as part of the identification process involved in a routine booking process.
More than half of the states have laws that allow police to take a DNA swab from a person arrested for a serious criminal offense. The Obama Administration also endorsed the practice when it signed the Enhanced DNA Collection Act, which authorized grants to allow states to implement expanded DNA testing. Those concerned with intrusions on individual privacy and searches without individualized suspicion are concerned about the prospect that the decision will result in a national DNA database.
Justice Antonin Scalia articulated these concerns in his dissent to the 5-4 decision, “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. This will solve some extra crimes to be sure. But so would taking DNA whenever you fly on an airplane.” Justice Scalia’s dissent lamented the majority’s decision to sanction this form of “suspicionless search.” The dissent mirrored concerns by Justice Sonia Sotomayor during oral argument in the case concerning the possibility DNA swabs could eventually find their way into schools and workplaces.
Justice Anthony Kennedy wrote the majority opinion, which was supported by the three other conservative members of the court who found the process of taking a DNA swab to be a reasonable part of the booking procedure. Justice Stephen Breyer was the swing vote and concurred with the majority. Justice Kennedy’s majority opinion compared the DNA swab to taking photographs or fingerprints of an arrestee during the booking procedure. The majority opinion viewed the intrusion on an arrestee’s protections against unreasonable search and seizures as minimal given the law enforcement benefit of solving serious criminal offenses.
Routine DNA swabs of those that have not been proven to have committed a criminal offense may lead to false DNA hits and wrongful convictions. It is reasonable to assume that the justices’ approval of DNA swabs will result in more states adopting this practice to determine whether an arrestee can be linked to other crimes even when the police have no basis for suspecting the arrestee is implicated in other crimes.
Kansas City criminal defense attorney Stacey Schlimmer aggressively defends her clients’ rights to be protected against unreasonable searches and seizures in Johnson County or the surrounding areas of Kansas. Our Kansas criminal defense law firm offers a confidential free consultation so call us today at 913-219-5424 or contact us online.