The Cautionary Instruction: Concern abounds over DNA ruling

Matthew T. Mangino
The Pittsburgh Post-Gazette/Ipso Facto
June 7, 2013

When U.S. Supreme Court Justice Antonin Scalia sat down to write a dissent to the Court’s decision this week permitting warrantless collection of DNA from suspects, he got right to the heart of his discontent with his colleagues. He wrote, “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.”

Alonzo King’s DNA was taken in Maryland when he was arrested for allegedly waiving a gun at some people. The police subsequently tied King's DNA to an unsolved rape, for which he was ultimately convicted and now sits in prison.

In Maryland v. King, No. 12-207, the U.S. Supreme Court held, “taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.”

Justice Anthony M. Kennedy wrote in the majority opinion that the “quick and painless” swabbing procedure was a search under the Fourth Amendment, meaning it had to be justified as reasonable under the circumstances. It was, he said, given “the need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody.”

Scalia says that Kennedy’s argument is disingenuous. "The court's assertion that DNA is being taken, not to solve crimes, but to identify those in the state's custody taxes the credulity of the credulous," he wrote.

Scalia concedes that solving crimes is “a noble objective," but Scalia writes, “it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches."

DNA collection ignites the passions of many. The Los Angeles Times wrote, “Although DNA analysis is new, the constitutional issue raised by this case is a familiar one: When should society's interest in detecting and punishing crime override an individual's right to privacy? Obtaining DNA from people arrested for (but not convicted of) a serious crime may close some cold cases. But so would taking DNA from people arrested for minor offenses — or from citizens applying for a driver's license or gun permit. Or from all of us. The court's unwise decision makes such additional intrusions less unthinkable.”

Dr. Cyril Wecht, former Allegheny County Medical Examiner and renowned pathologist, says don’t believe government officials when they say, “We’re only doing it for identification. We’re not doing it to determine whether or not you have a predisposition for diabetes, hypertension, or so on. Nobody else is going to get this information.”

All 50 states collect DNA from people who have been convicted of crimes. Twenty-eight states and the federal government routinely collected DNA samples from arrestees prior to the Court’s decision.

Pennsylvania Senate Majority Leader Dominic Pileggi has now proposed a bill that would require police to collect DNA after arrest for “serious felonies.”

Matthew T. Mangino is of counsel with Luxenberg, Garbett, Kelly & George, P.C. He is the former district attorney of Lawrence County and just completed a six year term on the Pennsylvania Board of Probation and Parole. His weekly column on crime and punishment is syndicated by GateHouse New Service. You can read his musings on the criminal justice system at www.mattmangino.com and follow Matt on Twitter @MatthewTMangino.

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