In a 5-4 opinion [pdf] authored by Justice Kennedy, the Supreme Court has upheld the constitutionality of Maryland’s DNA Collection Act. Under question is the provision which allows law enforcement to collect DNA samples from people who have been arrested, but not yet charged or convicted.
In the syllabus, Kennedy claims that the collection of DNA upon arrest serves a government interest that “is not outweighed by the respondent’s privacy interests.”
By comparison to the substantial government interest and the unique effectiveness of DNA identification, the intrusion of a cheek swab to obtain a DNA sample is minimal. Reasonableness must be considered in the context of an individual’s legitimate privacy expectations, which necessarily diminish when he is taken into police custody.
I’m sorry, but reasonableness has a higher burden of proof than that when it comes to enumerated civil liberties. He also claims the Act passes muster because the method of collection is minimally invasive, unlike surgery or drawing blood. In his dissent, Justice Scalia disagrees.
The Court hastens to clarify that it does not mean to approve invasive surgery on arrestees or warrantless searches of their homes. That the Court feels the need to disclaim these consequences is as damning a criticism of its suspicionless-search regime as any I can muster.
He’s absolutely right. Scalia was joined in his dissent not by conservative Justices, but by Sotomayor, Kagan, and Ginsburg. This crosses ideological lines, and it seems Scalia was chosen to author it for the force of his language.
Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would 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. Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.
Please, tell me again how conservatives are the ones fighting to protect us from an overreaching, oppressive government, because I’m just not getting it.