Tuesday June 4th, 2013 informationliberation.com
Horrifying Supreme Court Ruling Lets Police Collect DNA Because You Might Just Be A Horrible Criminal (Techdirt)
I had a busy day on Monday, so it took a bit of time for me to finally get around to reading the full Supreme Court ruling in the Maryland v. King case, in which the court ridiculously ruled that law enforcement can take DNA samples from everyone arrested for a "serious" new crime in the hopes that it might help solve old crimes. We've discussed this issue in the past, but the reasoning of the majority ruling in the Supreme Court is rather horrifying. It's interesting to see that the court did not split along its "traditional" lines. Scalia split with Alito, Thomas and Roberts -- who often form a single voting block, while Breyer also was on the other side of his more natural allies, Ginsburg, Sotomayor and Kagan. Kennedy is the usual "swing" vote, and wrote the decision here, decimating the basics of the 4th amendment. I mean absolutely decimating it.

Kennedy tries to argue that taking a DNA sample from someone arrested is a perfectly natural part of the process of identifying them, but he goes much, much further. Just the fact that he uses this line is when you know the 4th Amendment is in trouble:
To say that the Fourth Amendment applies here is the beginning point, not the end of the analysis.
In other words, I'm about to come up with a bunch of rationalizations as to why we can ignore the 4th Amendment here. The basic argument is a sort of blanket "well, the police need to identify people" argument:
The legitimate government interest served by the Maryland DNA Collection Act is one that is well established: the need for law enforcement officers in a safe and accu­rate way to process and identify the persons and possessions they must take into custody.
Yes, but that's wholly different from taking a DNA sample from them to then run through a giant database of unsolved crimes to see if you (or, in some cases, a relative) might possibly be implicated. And, then think of where this quickly gets you when the majority makes the following statement:
An individual's identity is more than just his name or Social Security number, and the government's interest in identification goes beyond ensuring that the proper name is typed on the indictment. Identity has never been considered limited to the name on the arrestee's birth certificate. In fact, a name is of little value compared to the real interest in identification at stake when an individual is brought into custody
Hmm. If an identity goes beyond just your name and basic stats info, then what might it include?
A suspect's criminal history is a critical part of his iden­tity that officers should know when processing him for detention
Yeah, but a person's hobbies, interests, writings, possessions, etc may also be a part of someone's identity, and yet those tend to be protected by the 4th Amendment. So what gives? As Julian Sanchez points out, couldn't the identical argument be used to say that any law enforcement should be able to also read an arrestee's email without a warrant? After all it would give them more "context" about his "identity."

This should be a hint: if your Supreme Court argument can be used to basically wipe out the entire 4th Amendment, it's probably not a very good argument.

In response, Scalia's dissent is well worth reading. It's blistering in its criticism of the majority opinion and very much on point.
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. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment. Whenever this Court has allowed a suspicionless search, it has insisted upon a justifying motive apart from the investigation of crime.

It is obvious that no such noninvestigative motive exists in this case. 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. And the Court's comparison of Maryland's DNA searches to other techniques, such as fingerprinting, can seem apt only to those who know no more than today's opinion has chosen to tell them about how those DNA searches actually work.
Scalia points out that allowing searches unrelated to a specific crime have only been allowed in very special circumstances, and this ruling blows that out of the water. Scalia notes that the whole claim that the argument that these DNA searches are just for identifying really does rip to shreds the basics of the 4th Amendment:
If identifying someone means finding out what unsolved crimes he has committed, then identification is indistinguishable from the ordinary law enforcement aims that have never been thought to justify a suspicionless search. Searching every lawfully stopped car, for example, might turn up information about unsolved crimes the driver had committed, but no one would say that such a search was aimed at "identifying" him, and no court would hold such a search lawful.
Furthermore, Scalia points out that the "identifying" claim is completely bogus because no one was using DNA to better identify the arrestee. It looks at the specific case of King, and notes multiple ways in which the DNA testing would have obviously been done differently if the purpose had been simple identification. They made no rush to sample the DNA, and, in fact were forbidden to by law, until he was arraigned 3 days later. And then it took months for anything to actually be done with the DNA sample.
In fact, if anything was "identified" at the moment that the DNA database returned a match, it was not King—his identity was already known. (The docket for the original criminal charges lists his full name, his race, his sex, his height, his weight, his date of birth, and his address.) Rather, what the August 4 match "identified" was the previously-taken sample from the earlier crime. That sample was genuinely mysterious to Maryland; the State knew that it had probably been left by the victim's attacker, but nothing else. King was not identified by his association with the sample; rather, the sample was identified by its association with King. The Court effectively destroys its own "identification" theory when it acknowledges that the object of this search was “to see what [was] already known about [King].” King was who he was, and volumes of his biography could not make him any more or any less King. No minimally competent speaker of English would say, upon noticing a known arrestee’s similarity “to a wanted poster of a previously unidentified suspect,” ante, at 13, that the arrestee had thereby been identified. It was the previously unidentified suspect who had been identified—just as, here, it was the previously unidentified rapist.
Furthermore, Scalia quotes the actual law in question, which lists out the only reasons why DNA evidence may be collected... and "identification" is not one of them.
Instead, the law provides that DNA samples are collected and tested, as a matter of Maryland law, “as part of an official investigation into a crime.” ... (Or, as our suspicionless-search cases would put it: for ordinary law-enforcement purposes.) That is certainly how everyone has always understood the Maryland Act until today.
Scalia concludes by pointing out the worst part of all of this: once convicted, it's established that a criminal can have their DNA sampled. And thus, this really only matters for one group: those innocent of the crime they were arrested for.
All parties concede that it would have been entirely permissible, as far as the Fourth Amendment is concerned, for Maryland to take a sample of King’s DNA as a consequence of his conviction for second-degree assault. So the ironic result of the Court’s error is this: The only arrestees to whom the outcome here will ever make a difference are those who have been acquitted of the crime of arrest (so that their DNA could not have been taken upon conviction). In other words, this Act manages to burden uniquely the sole group for whom the Fourth Amendment’s protections ought to be most jealously
And, finally, Scalia points out, as we did above, that the basic logic of the majority more or less justifies almost any search.
Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the “identity” of the flying public), applies for a driver’s license, or attends a public school. Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.
The 4th Amendment was already on the ropes before this. It's pretty depressing to see the Supreme Court look to give it the knockout punch like that.

Read the ruling (PDF)