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DNA swab of arrestee's cheek is a 'reasonable search,' Supreme Court finds (+video)

The ACLU says the Supreme Court ruling, which allows the DNA samples to be stored in a database for use in solving other crimes, creates a 'gaping new exception to the Fourth Amendment.'

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“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 … applies for a driver’s license, or attends a public school,” Scalia wrote in his dissent.

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“Perhaps the construction of such a genetic panopticon is wise,” he said. “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.”

In a statement, the American Civil Liberties Union said the decision “creates a gaping new exception to the Fourth Amendment.”

Others saw it as a step forward. Officials at the Rape, Abuse and Incest National Network said the ruling reflects recognition at the high court of the importance of DNA to solving crimes.

Kennedy’s majority decision was joined by Chief Justice John Roberts, and Justices Clarence Thomas, Stephen Breyer, and Samuel Alito.

Joining Scalia’s dissent were Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan.

DNA has become an essential law enforcement tool. It not only offers police a reliable means to positively identify an individual, it also provides a way to link an individual to an unsolved crime scene containing unidentified skin, blood, or other bodily fluids containing DNA.

Monday’s decision stems from the case of Alonzo Jay King, who was arrested in Wicomico County, Md. in April, 2009 for allegedly pointing a gun at several people.

Once in police custody, Mr. King was required to submit to a buccal swab of his cheek to provide a DNA sample for the state’s database. A Maryland law authorizes officials to take samples from anyone arrested in the state for a serious crime.

The sample was sent to a national database of DNA samples where it matched DNA collected at the scene of an unsolved rape six years earlier in Wicomico County.

King was charged with rape and robbery in the 2003 unsolved crime. He was later convicted of first degree rape and sentenced to life in prison.

His lawyer argued that Maryland violated King’s Fourth Amendment rights when officials took the sample of his DNA without first obtaining a warrant from a neutral judge.

The trial judge rejected the argument, but the Maryland Court of Appeals reversed. It ruled the police must first obtain a warrant before collecting DNA from an arrestee.

In reversing that decision, Kennedy compared the use of DNA to the routine use of fingerprinting during the booking process. Fingerprints can help identify a suspect and sometimes they also provide evidence linking a suspect to a crime or crime scene.

Kennedy suggested that fingerprinting has not been found to violate the Fourth Amendment because it was seen by judges as fitting within “the accepted means of processing an arrestee into custody.”

Scalia said that unlike DNA, fingerprinting is an effective means of identifying suspects. It works so well, he said, that there is no need for a separate, redundant DNA-based confirmation system.

“What DNA adds – what makes it a valuable weapon in the law enforcement arsenal – is the ability to solve unsolved crimes, by matching old crime-scene evidence against the profiles of people whose identities are already known,” he said.

“That is what was going on when King’s DNA was taken, and we should not disguise the fact. Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches.”

Scalia added: “The Court disguises the vast (and scary) scope of its holding by promising a limitation it cannot deliver.”

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