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DNA swabs issue makes strange bedfellows

Date published: 6/13/2013


--There is something touchingly amusing in Supreme Court Justice Antonin Scalia adamantly defending the rights of the criminally accused, a group he typically has no sympathy for in other contexts.

But there he was this week, arguing with authoritative condescension that letting police take DNA mouth swabs of arrested suspects is offensive to the Fourth Amendment and not the harmless equivalent of fingerprinting, as Justice Anthony Kennedy had written for the court's 5-4 majority in Maryland v. King.

In what might seem like an odd alignment, Scalia was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, who often--though not necessarily accurately--are broad-brushed as members of the court's "liberal" wing.

The majority was filled out by supposed liberal Stephen Breyer and supposed conservatives Chief Justice John Roberts, Clarence Thomas, and Samuel Alito.

Who was on which side is not as interesting, or perplexing, as the dynamics of what the court was wrestling with. It always seemed simpler on CSI.

Maryland--like more than half the states and federal law enforcement--allows police to swab the cheeks of people who are being booked into jail after arrest. In Maryland, the practice involves people suspected of violent crimes or burglary. While an arrest would have been made based on probable cause, no separate warrant is required to take the DNA sample.

Maryland's highest appeals court struck down the practice as an unreasonable search. But the Supreme Court said the opposite.

Kennedy called DNA swabbing similar to taking booking fingerprints or photos and less intrusive than taking blood from a drunken-driving suspect. Besides that, it helps make sure police have picked up the right person. And by running the DNA through the FBI's CODIS database, they can determine whether they have a violent criminal who shouldn't be let out on bail.

Comparing DNA with other records, he said, is no different from matching an arrestee's face to a wanted poster, matching tattoos to known gang symbols, or matching an arrestee's fingerprints to those recovered from a crime scene.

Scalia wasn't convinced.

Maryland wasn't interested in identifying the suspect it had but in solving old cases, he argued. In fact, police had charged Alonzo King with first- and second-degree assault for threatening a group of people with a shotgun.

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