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Thursday, Jun 21, 2018
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Supreme Court is right on DNA searches

The Supreme Court's decision this week to allow police to swab criminal suspects for DNA samples is a natural step in the evolution of fighting violent crime. Just as fingerprinting did generations ago, DNA evidence has revolutionized criminal prosecutions by giving law enforcement a powerful tool to identify criminals who shouldn't be on our streets. Florida and 27 other states authorize police to collect DNA from suspects taken into custody for serious offenses. The federal government also allows pre-conviction swabbing. On Tuesday, the U.S. Supreme Court upheld the practice in a 5-4 decision involving a Maryland man convicted of a crime that occurred years before his arrest on unrelated charges, raising questions about whether the DNA swab violated Fourth Amendment protections against unreasonable searches.
The man had been picked up on assault charges in 2009. The swab of his cheek revealed a DNA profile that matched evidence from a 2003 rape case, and the man was later convicted of the rape. But the Maryland Court of Appeals ruled that the state's law allowing the swab violated the Fourth Amendment, a decision appealed to the U.S. Supreme Court. In writing for the majority, Justice Anthony M, Kennedy equated the swab to accepted booking practices in jails across the country. "Taking and analyzing a cheek swab of the arrestee's DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment." Justice Antonin Scalia took issue with that rationale. The case being considered was about the right of law enforcement to swab without a reasonable suspicion that the suspect had committed the rape in 2003, he said. The swab in this case was used as a fishing expedition by police on the chance it might solve a cold case, not as a tool to identify the suspect. Police, he said, already knew the identity of the suspect. "Make no mistake about it," Scalia said, "because of today's decision your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason." So what? How does this differ from a fingerprint or photograph? The police have every right to record identifying features of someone accused of a serious crime. In his majority opinion, Kennedy sensibly wrote that the swabbing did constitute a search under the Fourth Amendment but that was reasonable given the need for police to identify criminal suspects. "It is no different than matching an arrestee's face to a wanted poster of a previously unidentified suspect, or matching tattoos to known gang members to reveal a criminal affiliation, or matching the arrestee's fingerprints to those recovered from a crime scene." We understand Scalia's concern, but the majority got it right. The opportunity to link criminal suspects to previous crimes is a practice that should be encouraged in all 50 states. Not long ago, the placement of surveillance cameras in public areas was viewed as an intrusion on the privacy rights of the people using those areas. The recent bombing in Boston put those arguments to rest. The power of DNA should be used to its full potential when fighting crime. We suspect the victim in the 2003 rape case would agree.
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