The United States Supreme Court handed down somewhat of a shocking decision this week in the case of Maryland v. King, regarding the constitutionality of law enforcement collecting DNA of arrestees without a warrant.
At issue was a Maryland state statute, which allowed for the warrantless collection of DNA from a suspect following an arrest for a “serious offense,” which under Maryland law includes crimes of violence or burglary.
Here is what is deeply disturbing about this decision, and why all Americans should be concerned– this law does not require a warrant for the taking of your DNA. Under this law, and those being passed across the country, the collection of DNA is being treated in the same manner as the collection of your finger prints or booking photograph.
What’s so wrong with that, some might ask? What’s troubling about that is the fact that the burden for making an arrest is already low, and the potential for misuse or misplacement of DNA samples, and thus potential for abuse to an individual’s unique DNA is incredibly high. Leaving wholly aside the way in which this revelation could completely circumvent constitutional rights of individuals implicated in other crimes, we are now saying that it is ok to collect DNA after what could be an almost non-existent criminal case.
For example, if an individual happens to be present at the scene of the crime, and the police arrive following an anonymous 911 tip, the fact that the person is there could alone raise a strong suspicion, and thus provide a probable cause for an arrest. Even if you were not involved in the burglary at all, the fact that you are there could supply the probable cause for an arrest, and now the government can lawfully collect your DNA. Does that scenario bother you? It should. So much so that one of, if not the, most conservative justices on the court, Antonin Scalia, sided with three of the most liberal, Ruth Bader Ginsburg, Elena Kagan, and Sonya Sotomayor, in a scathing dissenting opinion, which he personally read aloud in the courtroom.