The Herald Bulletin
---- — The U.S. Supreme Court has been chipping away at the Fourth Amendment, making it easier for law enforcement and tougher for the accused, which was clearly not what the framers of the Constitution intended.
Last week's ruling, in a 5-4 majority, said that people arrested by police must give DNA as a part of the book-in procedure. The ruling was based on a Maryland case that the state's court of appeals overturned the taking of DNA stating that the state needs a warrant before taking the cheek swab.
That court of appeals protects the Fourth Amendment, which states, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
Having the police automatically take a swab means that the arrestee is not secure in his person. It's an unreasonable search and seizure since the person is readily identified. No warrant was issued because there was no probable cause to obtain the DNA.
The Fourth Amendment was set up to prevent police from harassing citizens and going on fishing expeditions.
Antonin Scalia, perhaps the court's most conservative justice, joined with the liberal members in a stinging dissent of the majority opinion. He said the ruling violates court precedents that searches can't be made just because they might be useful in solving other crimes. In the Maryland case, the suspect's DNA wasn't processed for three months so it definitely wasn't used to identify him.
"Did the court really believe that Maryland did not know who it was arraigning? Scalia asked.
He particularly went after the majority writer, Justice Anthony Kennedy, for comparing DNA swabs to fingerprinting. The latter, said Scalia, is used to ID people while the former is used to solve crimes.
Of most concern to Scalia was the establishment of a DNA data bank, stocked with DNA samples from anyone arrested, including, Scalia fears, those stopped for traffic violations. Harking back to the intentions of the Fourth Amenedment, he wrote, "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."
Our freedom and liberties mean less when they are diluted by the courts, and this ruling took another layer away from our constitutional protections. Like Scalia, we would hope a future court will be wise enough to overturn this ruling.
In summary The Fourth Amendment was set up to prevent police from harassing citizens and going on fishing expeditions.