Swab Stories

The other day, the Supreme Court ruled that police may gather DNA samples from people arrested for serious crimes.  Authorities already had the right to take DNA samples from people convicted of such crimes, so this represents an expansion of police powers.  With this ruling, police can take a cheek swab after arresting someone and compare the suspect's DNA against samples collected in other unrelated cases.  In the case under consideration before the Supreme Court, for example, a man arrested for assault was subsequently charged with and convicted for an unsolved 2003 rape, after a DNA sample implicated him in that earlier crime.

Civil libertarians argue that such DNA collection represents a violation of the Fourth Amendment's protection against unreasonable searches.  Indeed, in an unusual ruling, arch-conservative Justice Antonin Scalia joined most of the traditionally liberal judges in dissenting from the decision, which was written by everyone's favorite swing justice Anthony Kennedy.  Scalia invoked the Founding Fathers: “The proud men who wrote the charter of our liberties would not have been so eager to open their mouths for royal inspection.”

Kennedy himself, along with most of the other traditionally conservative justices, kind of sidestepped the whole Fourth Amendment question, suggesting that collection of DNA is just another way for the authorities to establish the identity of a person in custody: “When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody. . . taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.”       

With all due respect to Justice Kennedy, that argument is disingenuous, or, as Scalia put it, “taxes the credulity of the credulous."  Police do not need DNA to establish a suspect's identity; indeed, unless the suspect's DNA is already in the criminal justice system, the DNA sample will be useless.  There are far more effective ways of establishing identity: Dental records, psychic mediums, or, I don't know, asking to see someone's driver's license.  No, the whole purpose of gathering a suspect's DNA is, as happened in this case, to try to match the suspect to an unsolved case.  And honestly?  I don't see a problem with this.

Look, I don't normally agree with Antonin Scalia, but I admire his defense of the Fourth Amendment's protections against unreasonable searches.  At the same time, the collection of a DNA sample hardly strikes me as "unreasonable."  At its most invasive, DNA sampling requires nothing more than a cheek swab--and frankly not even that: If a suspect has a drink of water while being processed, police can probably retrieve DNA from the cup.  And on balance, if DNA collection helps police solve vicious, violent crimes, I don't think a suspect's minor (at most) inconvenience is too great a price to pay.

I am more concerned, honestly, with Fifth Amendment concerns, i.e., whether compelling a suspect to provide a DNA sample violates his right to avoid self-incrimination.  Again, though, given the fact that DNA--like other evidentiary material (fingerprints, clothing fibers, etc.)--can be gathered passively, whether or not the suspect voluntarily agrees to provide them, I do not think this represents a true constitutional concern.

One thing, though.  I am intrigued at Scalia's invocation of the Founders' presumed resistance to modern-day investigative methods.  After all, in other areas--say, gun control--the Founders would presumably have NO objections to modern variations on classical themes, or so go the arguments of those who say that there is no reason to update the Second Amendment's non-restrictions on firearms to take into account guns that fire considerably more bullets than a musket could.  Do I digress?  Well, yes, but I couldn't end this blog post without reaffirming my general disagreement with the vast majority of Scalia's right-wing jurisprudence.