Weeks ago, many people throughout the Nation expressed concern that a version of a forthcoming immigration reform bill included provisions that would allow the Federal government to keep a “biometric database.” While it turned out that biometric data would have been used only to supplement pre-existing e-Verify pre-employment checks for noncitizens, a Monday Supreme Court ruling brings the prospect of a Federal biometric database closer to reality—and it could affect anyone in the United States caught in the criminal justice dragnet.
A sharply divided Court said in a 5-4 decision that it would uphold a Maryland law which allows police to take a DNA swab of any individual charged with a violent crime, as long as they have probable cause.
The ruling stems from Maryland v. King, a case involving Alonzo King, who was arrested in 2009 on charges of first-degree assault. DNA taken from King during that arrest was used to link him to an earlier rape, for which he was tried and convicted. But King sued, alleging that police had violated 4th Amendment protections against unreasonable search and seizure by taking his DNA.
The Court ruled that DNA should be considered identifying information, no different from fingerprints. Currently at least 28 States and the Federal government use information from DNA swabs after arrests. All 50 States collect the information from convicted criminals to check against Federal and State databanks— but the Supreme Court ruling pertains to people who have not yet been convicted of any crime.
“Taking and analyzing a cheek swab of the arrestee DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment,” the Court’s five-justice majority ruled.
The ruling, written by Justice Anthony Kennedy, goes on, “In this respect the use of DNA for identification is no different than matching an arrestee’s face to a wanted poster of a previously unidentified suspect; or matching tattoos to known gang symbols to reveal a criminal affiliation; or matching the arrestee’s fingerprints to those recovered from a crime scene.”
“Make no mistake about it: because of today’s decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason,” Justice Antonin Scalia said in dissent.
There was no indication of the Court’s usual ideological divisions in the split ruling as conservative and liberal justices were in both groups. Chief Justice John Roberts and Justices Samuel Alito, Clarence Thomas and Stephen Breyer were among those in favor of the ruling. Scalia was joined in his dissent by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.
The American Civil Liberties Union, in a statement following the ruling, acknowledged the importance of DNA in solving crimes, but decried the collection of the biometric data from people who have not yet been convicted of crimes.
“Today’s decision creates a gaping new exception to the Fourth Amendment. As Justice Scalia’s dissent convincingly demonstrates, DNA testing of arrestees has little to do with identification and everything to do with solving unresolved crimes. While no one disputes the importance of that interest, the Fourth Amendment has long been understood to mean that the police cannot search for evidence of a crime – and all nine justices agreed that DNA testing is a search – without individualized suspicion. Today’s decision eliminates that crucial safeguard. At the same time, it’s important to recognize that other state laws on DNA testing are even broader than Maryland’s and may present issues that were not resolved by today’s ruling.”