DNA collection not as intrusive as car search, says Justice Stevens at ACS

DNA collection not as intrusive as car search, says Justice Stevens at ACS

By Leah Nicholls, Kazan-Budd Attorney

Earlier this month, the Supreme Court upheld a Maryland law providing that, as part of the police booking procedure, DNA samples should be taken from arrestees and run through a state database whether or not the arrestee was arrested for a crime potentially involving DNA evidence, so long as the crime was serious. Respondent Alonzo King had been convicted of a 2003 rape on the basis of DNA evidence obtained as part of a 2009 arrest for threatening people with a firearm. The case, Maryland v. King, was decided 5-4.

Justice Kennedy, writing for the majority, bought the State of Maryland’s argument that taking DNA evidence was part of legitimate identification efforts — just like taking an arrestee’s fingerprints — and was permitted under the Fourth Amendment because it was noninvestigatory. Justice Scalia, writing for the dissent, called Maryland’s bluff, asserting that it was obvious that Maryland wanted the DNA samples to investigate crimes and concluding that suspicionless DNA tests violate the Fourth Amendment.

Last Friday, at the annual convention of the American Constitution Society, former Justice John Paul Stevens was the honored speaker, and, in a surprising move, he used the forum to weigh in on King.

In essence, he agrees with Justice Scalia: Maryland’s assertion that it needs DNA sampling for identification purposes is a false front. But Justice Stevens said he would have voted to uphold the law. He gave the following reasons:

  1. Collecting a DNA sample is a lesser intrusion on a person’s privacy than searching a car, which is also permitted pursuant to arrest.
  2. DNA matching is extremely accurate.
  3. There is a significant public interest in creating DNA databases of those arrested for violent crimes, data that could, for example, be consulted as part of background checks for gun purchases.
  4. Expanding DNA databases has a deterrent impact on potential rapists.

We have so few retired Supreme Court justices that it’s always interesting to see what they’re willing to say. Justice Stevens used his forum at ACS to say what he would have done in a case the Court had decided less than two weeks prior — and how his reasoning would have been vastly different from that of either the majority or dissent. I wonder what his motivation was: Get his view on the record? Provide stronger alternative reasoning for the right result? Send a message to the Court? Nostalgia for the practice of sharing his legal reasoning? Whatever his motivation, it wasn’t to pander to the crowd; the ACS reception to hearing his view on King was tepid at best. (Although his presence was received enthusiastically, he was followed slightly awkwardly by a panel discussing the sorry state of indigent defense 50 years after Gideon.)

Fourth Amendment aside, the decision and Justice Stevens’ talk raise pointed questions about the role of DNA sampling. Certainly, it did a good deed in King, and it’s a powerful tool for accurate prosecutions. But at the same time, a DNA database seems hard to square with gut-check concerns about privacy and raises fundamental questions about our identity. Which is more intrusive: A search of your genetic code, as Justice Scalia believes, or a search of the personal effects in your car, as Justice Stevens argues? The question isn’t just a theoretical one, and personally, I worry about the long-term impact of views like Justice Stevens’ and the majority’s.

First, as our understanding of our DNA becomes increasingly sophisticated, the more intrusive police knowledge of your DNA becomes — there must be a point at which it indisputably eclipses your privacy over the ancient road maps stashed under the car seat. Second, the DNA sampling, unlike the search of a car or person, cannot be justified by officer safety or concerns about the destruction of evidence. This is a new frontier, and I’m concerned about what may be lurking over the horizon.

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