The Corporate Law Group

Supremes:  Your DNA is Not Your Own

After being arrested on first and second degree assault charges, the cops took a cheek swab of Alonzo King to check his DNA.  They found a match with an unsolved rape case, charged him, and he was convicted.  King claimed the cheek swab was an unreasonable search and seizure which violated his Constitutional Fourth Amendment rights.  The Supremes, led by Kennedy, disagreed finding that a cheek swab was not unreasonable and comparing it to a blood test.  But when that cheek swab results in your DNA being permanently indexed for everyone to access, we think more caution is called for.  This is not a case of checking blood alcohol level; this is a case of being tagged with a DNA match a decade later.  We don’t have any sympathy for rapists.  Gas ‘em if you want.  But these concepts are only really tested at the margins and the more heinous the crime the more careful we need to be that the rules aren’t bent to get a conviction.  Otherwise there will be no rules left.  Ninth Circuit Judge Alex Kozinski has made clear to us all that we control what is deemed “reasonable” and “unreasonable” by what we allow and don’t allow.  We can all help each other by decrying all such searches as unreasonable.  If enough of us do that, they will be seen as unreasonable by our courts.  The more we allow the more we invite.  The majority spoke quite a bit about the database being used for other purposes but seemed to imply that this could be done even if the person is never convicted of anything.  In other words, suspected until proven innocent.  That is not our system.  Scalia wrote for the minority, joined by Ginsburg, Sotomayor (the racist), and Kagan, saying, “The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence.”  In other words, the search was unreasonable unless there was a basis for believing King to be the rapist, even if he was arrested for something unrelated, as here.  Scalia continued, “That prohibition is categorical and without exception,” and later said, “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.”  We agree.  They got this one wrong and our liberty suffers further.

  —  Paul Marotta

Leave a Reply