Does having the police swab the inside of a suspect’s mouth for a DNA sample violate that person’s security? Certainly, the swabs are intrusive in a way that the long-established police IDs of fingerprinting and mug shots are not. And as with those procedures, no warrant is required for DNA swabs.
But is DNA testing “unreasonable,” given its growing successes in freeing the wrongly convicted and solving cold cases?
By a 5-4 margin the Supreme Court ruled this week that the swabs are justified for the sole reason of verifying the identity of the person in custody. Justice Anthony Kennedy wrote that the testing is a reasonable police-booking procedure.
In opposition was maybe the court’s most unlikely coalition: Ruth Bader Ginsburg, Sonia Sotomayor, Elena Kagan and Antonin Scalia. Chief Justice John Roberts, Samuel Alito Jr., Clarence Thomas and Stephen Breyer joined the majority opinion.
Scalia predicted that eventually DNA tests would be entered into a national database and possibly — at the cost of protecting people from “suspicionless law enforcement searches” — lead to closing unsolved crimes.
The case before the Supreme Court involved a Maryland man who was arrested for menacing his neighbors with a shotgun. A DNA test led to the man’s conviction and a life sentence for the rape and robbery of a 53-year-old woman six years earlier.
The decision left many legal questions unanswered. Maryland law requires DNA tests only for the most serious crimes — murder, rape, assault — but, as Maryland’s attorney general noted, there’s nothing to prevent police from taking swabs in minor cases like shoplifting, and sending the samples off to a national database.
A test now largely confined to serious crimes may become routine with police stops, especially as the cost of testing decreases. Scalia raised the possibility of DNA becoming a routine feature of the Transportation Security Administration’s pre-flight screening.
In a sense, Monday’s decision was inevitable — if not now, then certainly down the road. As crime-fighting technology improves and public surveillance becomes more pervasive, the traditional legal notions of privacy and propriety are steadily eroding.