Seizure of warrantless DNA Constitutional?

SCOTUS has spoken.  The Constitution does not prevent state law enforcement agencies from compiling vast DNA databases by collecting blood or buccal samples from everyone arrested for “serious” crimes.

The majority has said that it is not unreasonable under the Fourth Amendment to take someone’s cheek or buccal swab against their will without judicial review.  Kennedy joined most of the conservatives to say that it was a “legitimate police booking procedure.”  The implication being that the primary reason DNA is taken is to verify a suspect’s identity and not to have a database to check other crimes again.  I guess mug shot identification just won’t do anymore.

Kennedy went onto to say that the defendant’s reasonable expectation of privacy was not offended by such a search.  The court described compelled DNA seizure as the successor to fingerprinting during booking.  (*Sigh)

But Justice Scalia accurately answered with his dissent.  Scalia replied that a LEO’s interest isn’t in identification for identification purposes but rather to contrast DNA samples with samples from other crimes in continuing investigations.  Scalia powerfully argued that though TSA or schools or any other body could identify through DNA, it did not.  That type of identification is simply too invasive.

But what makes this opinion a joke is that everyone knows the true purpose of DNA samples and that it has little to do with identification.  This is a valuable law enforcement tool and it is used to cross reference to gain more convictions.  There is nothing wrong with that, but it should be subject to judicial review.  If a law enforcement officer is required to obtain a warrant to look at one’s text messages, they should be required to get one to gain access to one’s DNA code.

Thus, states can take DNA, retain it and submit it to a federal database.  States can do this based off a simple probable cause charge without judicial review but only for “serious crimes.”  But what is serious?  More importantly, will less serious crimes qualify for warrantless seizure?  It is hard to say at this point.

This isn’t a good day for Constitutional advocates, minimizes the power of checks and balances and that is rarely a good thing.

The money quote from Scalia’s dissent: “It may be wise, as the Court obviously believes, to make the Leviathan all-seeing, so that he may protect us all the better. But the proud men who wrote the charter of our liberties would not have been so eager to open their mouths for royal inspection.”

Thanks to politico



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