My colleagues Ilya, Jim, Roger, and Walter have said most of what needs to be said about the Supreme Court’s recent decision in the DNA sampling case Maryland v. King. So let me just hover for a moment on a point Roger makes. Everyone seems to agree that Justice Kennedy’s majority opinion strains the bounds of language by arguing that the state purpose of “identification” served by DNA sampling arrestees includes establishing a “context” for understanding “who the person really is,” including their “past conduct.” By the same logic, we might justify searching the homes of every drunk driver for evidence of unrelated crimes, since this too would give us a sense of “who they really are,” and whether they have reason to jump bail lest other crimes be discovered. The real argument, disingenuously shoehorned into this rubric of “identification,” is that this is indeed a warrantless search for ordinary investigative purposes, but that once a person has already been legitimately detained, the marginal intrusion involved in a cheek swab is trivial—and the benefit to society of enabling serious crimes to be solved so great—that an exception to the normal Fourth Amendment rules is justifiable. This is, as Roger suggests, a closer call.
Let’s go further and make the argument that Justice Kennedy, determined to cast this as a matter of “identification,” didn’t bother with. He could, after all, have cited to the Supreme Court’s major dog-sniff cases, Place and Caballes, in support of the following argument: The limited DNA profile actually entered into the CODIS database is only useful for matching, not for revealing other sensitive facts about medical conditions or genetic predispositions. In essence, then, this is a search that only reveals whether one is the unidentified perpetrator of a crime—which, like possession of contraband, is a fact in which a person has no “reasonable expectation of privacy.” So one might argue.
The first point to make is that the narrow “if you have nothing to hide, you have nothing to fear” argument doesn’t really work. A murder investigation will naturally involve collection of foreign DNA samples on the victim, which may well belong to persons that had nothing to do with the crime. Thus a search of an innocent arrested persons DNA could easily reveal the existence of, say, an unrelated but secret sexual relationship with the victim, or merely the presence of the searched person at the scene of a crime they had no involvement in. So this is not really a search with no realistic risk of exposing innocent but legitimately private information.
Read more at http://www.cato.org/blog/balancing-dna-swabs
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