A damning dissent: Scalia’s dissent for the ages in the DNA case
2013-06-06 0:00

By Jeffrey Rosen | Constitution Daily

Some of Supreme Court Justice Antonin Scalia’s greatest opinions have involved his passionate defense of the Fourth Amendment right against unreasonable searches and seizures. It was Scalia who held, for a majority of the Court, that police need a valid warrant before they can use thermal imaging devices on a suspect’s home, or track his movements 24/7 for a month using a GPS device. Scalia has also written memorable dissents in defense of privacy, including his denunciation of warrantless drug testing for customs employees as “a kind of immolation of privacy and human dignity in symbolic opposition to drug use.”

Yesterday, Scalia added to this impressive list by writing not only one of his own best Fourth Amendment dissents, but one of the best Fourth Amendments dissents, ever. In a 5-4 decision written by Justice Anthony Kennedy, who was joined by Chief Justice John Roberts and justices Samuel Alito, Clarence Thomas, and Stephen Breyer (who often sides with the conservatives in Fourth Amendment cases), the Court upheld Maryland’s DNA Collection Act. That law allows the police to seize DNA without a warrant from people who have been arrested for serious crimes and then plug the sample into the federal CODIS database, to see if they are wanted for unrelated crimes.

Read Scalia’s dissent (starting on page 33)

There was never any doubt about the purpose of this law, which is similar to laws adopted by 28 states and the federal government: to solve cold cases. This is why Justice Alito, at the oral argument, called the case perhaps the most important criminal-procedure case of the decade. The Maryland law makes its purpose explicit: “collecting and testing DNA samples” is designed to be “as part of an official investigation into a crime.” The problem, as Justice Scalia notes in his eloquent and devastating dissent, is that the Court has held repeatedly that suspicionless searches are not allowed solely on the grounds that the search might be useful to solve other crimes; instead, there has to be some independent goal (such as identification of the suspect) that can be distinguished from ordinary law enforcement. That Court precedent is why Justice Kennedy’s majority opinion barely mentions the goal of solving cold cases; instead, Kennedy pretends that the purpose of the law is simply to identify the criminal in question, much as a fingerprint would.

With rigor and wit, Scalia meticulously demolishes this made-up claim. “The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous,” Scalia begins. He then describes the “actual workings of the DNA search at issue here” on which the Court is “strangely silent.” Alonzo King was arrested in Maryland on April 10, 2009, on assault charges for menacing people with a shotgun. The same day, the police seized a DNA sample from him, but were prohibited by state law from placing the sample in the statewide database until his arraignment date, three days after his arrest. Four months later, after the DNA sample was tested against the federal database, King was linked with an unsolved rape and was charged with that offense, too.

“Does the Court really believe that Maryland did not know whom it was arraigning?” Scalia asks. And if the purpose of the law was to assess whether King should be granted bail, as the Court unconvincingly suggests, why would the state “possibly forbid the DNA testing process to begin until King was arraigned?” Scalia later adds, “It gets worse,” because King’s DNA sample wasn’t transmitted to be tested against the federal database until four months after his arrest, at which point the sample had already been entered into the state database together with information identifying King as the person from whom the sample was taken. Scalia’s conclusion is that the majority’s pretense that the Maryland law was designed to identify criminals rather than solve cold cases is a ruse.


Read the full article at: constitutioncenter.org

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