"Police no longer must have sufficient reason to believe that a person committed a crime for them to search that person for that crime. I'm very concerned for what this means for liberty and privacy."
Columbus, OH (PRWEB) June 23, 2013
In the U.S. Supreme Court case Maryland v. King (2013 U.S. Lexis 4165), the Court decided it is constitutional for police to take a DNA sample from any person arrested for a "serious offense" and use the sample to perform a search for a different, unrelated allegation. Columbus criminal defense attorney Brian Joslyn said the ruling runs contrary to the most important tenets in the United State criminal justice system: That law enforcement must have probable cause for a specific crime to conduct a search on a person for evidence of that specific crime.
"We have lost a basic constitutional principle with this ruling," Joslyn said. "Police no longer must have sufficient reason to believe that a person committed a crime for them to search that person for that crime. I'm very concerned for what this means for liberty and privacy."
Alonzo J. King was arrested in 2009 in Maryland and charged with assault after allegedly pointing a shotgun at several people, according to Court documents. Under a 1994 Maryland law, police are allowed to take DNA samples from people arrested for crimes of violence and check the sample against a database to use it to solve unsolved crimes. The state of Ohio has a similar law, which was upheld in a state supreme court case last year (State v. Emerson, 134 Ohio St.3d 191 (2012)).
Officers took the cotton swab from inside King's cheek. When they performed the search, the database presented a match for DNA from semen found at the site of an alleged sexual assault. Using only the DNA evidence, prosecutors charged King with sexual assault and secured a conviction.
In the resulting Supreme Court case, the Court weighed whether the Maryland law violated the Constitution's Fourth Amendment, which protects against unreasonable searches and seizures. The Court ruled 5-4, in an opinion by Justice Anthony Kennedy, that the state law did not violated the Constitution.
In a majority opinion joined by Justices John Roberts, Clarence Thomas, Stephen Breyer and Samuel Alito, Kennedy wrote that a DNA swab is like a fingerprint — despite the fact that DNA contains all biological information on a person. He wrote that the DNA was used to identify a suspect, like a fingerprint, and that the swab did not constitute a sufficient invasion of privacy to trigger constitutional concerns.
Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined a minority opinion by Justice Antonin Scalia that ripped apart the majority's suggestion that the DNA sample was used merely for identification. The real reason, Scalia wrote, was to test suspect for other, unrelated crimes with no warrant and no probable cause.
In most circumstances, police must obtain a warrant to collect a DNA sample from a suspect, and in order to obtain that warrant, police must show probable cause to believe the suspect committed the crime, Joslyn said. With the warrant, they may obtain the sample and test it with any DNA they may have found in connection to the crime they were investigating.
In the minority opinion, Scalia wrote that, as a result of the majority decision, police essentially have a "general warrant" to test a sample for any crime that has been committed anywhere without having to show any cause whatsoever.
"The Fourth Amendment precludes the idea of a 'general warrant,' which runs contrary to constitutional principles of privacy," Joslyn said. "Ensuring constitutional protections is more important than solving every crime. As Justice Scalia wrote, we could solve a lot of crimes if we took DNA every time we flew on an airplane. But that's not the kind of society we want to live in."
Scalia wrote that the ruling could lead to a national database of DNA. Joslyn suggested a further possibility: While the Maryland law only included crimes of violence, a natural extension would be any crime. If a person is arrested for drug charges in Columbus, they would automatically be searched and investigated for every crime committed anywhere in the nation.
"The harm done to privacy and liberty by this ruling is profound," Joslyn said.
Brian Joslyn, of the Joslyn Law Firm, is a Columbus criminal defense lawyer who represents those accuse of drug crimes, DUI and other charges.