Is cheek swabbing the new fingerprinting?
The Supreme Court ruled 5-4 Monday that law enforcement officials may take DNA samples from arrested suspects without a special warrant. Justice Samuel A. Alito Jr. called the decision "perhaps the most important criminal procedure case that this court has heard in decades.”
The court majority ruled that DNA sampling counts as “reasonable” police procedure, and can be used as a means of “identification” rather than a pre-emptive conviction of guilt. Justice Anthony Kennedy wrote for the majority:
"In light of the context of a valid arrest supported by probable cause respondent's expectations of privacy were not offended by the minor intrusion of a brief swab of his cheeks. By contrast, that same context of arrest gives rise to significant state interests in identifying respondent not only so that the proper name can be attached to his charges but also so that the criminal justice system can make informed decisions concerning pretrial custody. Upon these considerations the Court concludes that DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure."
Today’s decision overturns a ruling by the Maryland Court of Appeals, but the debate continues to stretch nationwide: Twenty-six states already use DNA testing to identify suspects under arrest, and the arguments against the practice reflect the difficulties of a justice system grappling with the new technologies that challenge traditional constitutional interpretations of privacy rights.
The Court itself broke down into non-traditional alliances on the subject: Kennedy was joined by Chief Justice John Roberts and associate justices Clarence Thomas, Stephen Breyer and Samuel Alito. The dissenting opinion brought liberal justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagen together with conservative Justice Antonin Scalia.
The dissent, written by the ever-shy Scalia, argues for privacy and Fourth Amendment rights: "The proud men who wrote the charter of our liberties would not have been so eager to open their mouths for royal inspection." We'll hold him to that should vaginal probes ever come before the court.