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Topic of the day: Supreme court, Fourth Amendment and DNA testing

Justice Scalia wrote a sharp dissenting opinion on the Supreme Courts decisions to allow DNA gathering as a routine procedure
Justice Scalia wrote a sharp dissenting opinion on the Supreme Courts decisions to allow DNA gathering as a routine procedure
Associated Press

A rare thing happened on Monday. Supreme Court Justice Anthony Scalia — considered too be the most conservative of the justices — joined three liberal justices in dissenting from a decision to allow law enforcement agencies to regularly perform cheek swabs on suspects for DNA testing.

In Maryland v. King, Alozno King was arrested for waving a shotgun in public, but when the police took a DNA test from him, they connected him to a rape case from 2003.

Scalia wrote a scathing dissent from the bench — a rare act showing sharp disapproval from a justice on the courts decision — opening with: “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.”

Naturally, this decision, the rare alliance of Scalia with liberal justices and the topic in general are bound to garner debate. In an article on the New York Times, Akhill Reed Amar and Neal K. Katyal discuss why the court's ruling to allow cheeck swabs is correct. However, Amar and Katyal do note that “the Fourth Amendment’s text is not nearly so simple as [Scalia] makes it out to be. It merely requires that all searches and seizures be not 'unreasonable.' Its words do not distinguish between intrusions seeking 'evidence of crime' and other sorts of intrusions — say, to collect revenue, or preserve public safety."

Amar and Katyal note that law enforcement already does many things to help prevent crime — such as searches at the border and locker searches at schools — without needing clear evidence that a crime was going to be committed. DNA testing also helps clear a victims name just as easily as it could link a victim to a crime, they argue, and therefor should be allowed.

But the L.A. Times editorial disagrees and sides with Scalia and the liberal justices on being against cheek swabbing. “Under previous court decisions interpreting the Fourth Amendment, police may search arrested persons for weapons and for evidence 'relevant to the crime of the arrest.' The fact that police had probable cause to arrest King for waving a shotgun didn’t create a probable cause to acquiring’s DNA and search a database to see if he could be implicated in another crime.”

If you are arrested for one thing, the police should not be able to go ahead and take your DNA to see if you can be implicated in crimes other than the one you were brought in for, the LA Times argues. If in the course of the investigation probable cause arises that would require a DNA sample to be taken, then it's okay. But without active probable cause, DNA testing as a run of the mill procedure clearly violates 4th Amendment rights. "Obtaining DNA [samples] from people arrested for (but not convicted of) a serious crime may close some cold cases. But so would taking DNA from people arrested for minor offenses — or from citizens applying for a driver's license or a gun permit. Or from all of us."

The fate of DNA testing is far from certain when it comes to law enforcement, and it is certainly a subject likely to garner heated debate.

Freeman Stevenson is a Snow College grad and is the opinion intern. Reach me at fstevenson@deseretdigital or @freemandesnews