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Supreme Court makes right call on DNA samples, observing limits

Updated: July 11, 2013 4:18PM



The U.S. Supreme Court’s decision allowing police to take DNA samples without a warrant should make all of us feel a little uncomfortable. The court’s reasoning was in some points tendentious if not disingenuous; it expands intrusive police powers, and, critics argue, it sets the groundwork for DNA profiling of all of us. Yet in the end, the court laid out a reasonable basis for limited use of this crime-fighting tool that outweighs the slippery slope argument. Still, it will require a vigilant citizenry, defense bar and press to be on guard against potential abuses.

The narrow 5-4 decision with justices crossing the usual conservative-liberal fault line reflected the constitutional complexities of the case. The sometimes tortured logic of the majority will open the court to accusations that it opted for an ends-justifies-the-means ruling because it facilitates solving old crimes.

At issue was a Maryland case where a DNA mouth swab of a man arrested on an assault charge discovered that he had raped a woman six years earlier. A lower court threw out the conviction on the grounds the defendant’s Fourth Amendment protection against an unreasonable search had been violated.

In overturning that ruling, the high court opinion written by Justice Anthony Kennedy characterized DNA testing as a modern version of fingerprinting used to identify a suspect. In a stinging if occasionally over-wrought dissent, Justice Antonin Scalia observed that it took Maryland authorities four months to get the DNA results, straining credulity that the test was vital to identifying the suspect.

Fingerprints also occasionally produce matches that solve unrelated crimes. That would, Scalia argued, be the only purpose of DNA testing and as such involves a search without a warrant or a probable cause. In short DNA testing is a fishing expedition to crack unsolved crimes. To critics, it is as intrusive as the Fourth Amendment-prohibited search of a home because DNA reveals the complete genetic background of a person. The potential for abuse is obvious. The American Civil Liberties Union cited the case of a woman forced to undergo a DNA mouth swab after being arrested for an anti-war protest.

These are serious arguments, but the case on the other side is also compelling. Bringing justice to the victims of unsolved crimes, such as the woman raped by the Maryland man, is a legitimate objective of government. And violent crimes often are committed by people who do it more than once. It’s not unreasonable to wonder whether someone arrested for assault might have other offenses in his background.

Is a simple mouth swab as intrusive as a home search? If I were arrested for a brawl with another senior at the Swinging Geezers’ Night Club, I would certainly rather undergo a mouth swab, because I know I have committed no violent crimes, than have police rummaging through my home and personal stuff.

The Maryland law has sufficient safeguards to prevent the anti-war example. It limits testing to those accused of violent crimes or burglary. It says the DNA testing cannot be done until the defendant is arraigned, meaning prosecutors must take the case to court. If charges are dismissed or the suspect exonerated, the DNA sample must be destroyed.

Nothing is perfect. One famous “Law & Order” episode told the story — I don’t know if it was “ripped from the headlines” — of a demented woman who used a condom to collect DNA to frame an innocent man. But the perfect shouldn’t be the enemy of the good. Mouth swab DNA testing with safeguards is a good 21st century law enforcement tool.



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