DNA Testing and arrests

The New York Times, along with just about every other media outlet, reported yesterday on the landmark Supreme Court ruling having to do with taking DNA samples from individuals arrested for serious crimes. The 5-4 decision was particularly frustrating because it was only possible due to the switch of liberal Stephen Breyer to the conservative position, allowing the tests. Antonin Scalia joined the remaining liberals in the sharply-worded dissent.

The decision essentially condoned one key activity: the police swabbing one’s cheek after he or she is arrested in order to gain access to that person’s DNA and run it against a national database for DNA. This national database would allow the police to cross-check the individual with unsolved crimes from all across the country. Sounds good, right? Unfortunately it is ripe for abuses, and that is where the meat of contention fell under. Indeed, most Fourth Amendment cases are about the relationship between one’s privacy/liberty and society’s interest in being safe.

Accordingly, the Justices set about two limits on this new power. First, arrests must be legitimate, as in supported by probable cause. The fruit of the poisoned tree doctrine would apply (i.e., a conviction resulting from the DNA tests would be thrown out if it were only the result of a first arrest not supported by probable cause). Second, such a power would only be allowed for a “serious” crime.

Now, I am not going to pretend to know what a “serious” crimes is, for one. The State of Maryland defines it as “murder, rape, assault, burglary and other crimes of violence.” This just begs the question of what a crime of violence entails. Is car burglary a crime of violence? Is theft? Is a threat?

It is these open-ended questions that will be brought back up before the court in the next few years. I think that the court, at that time, will rule these tests only allowable in very serious circumstances such as only murder, manslaughter, rape, kidnapping, assault & battery and armed robbery. I probably would not have voted the way Justice Breyer did, but then again, I’m not a Supreme Court justice. It will be interesting to see how Texas implements this now ruling, but that will probably be a question for the 84th Legislature.


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