4th Amendment Eroding Faster than Plum Island under SCOTUS’ Latest Decision

For a number of years it has been both federal law and the law in most states, that the government may take DNA samples from convicted criminals, who are deemed as possessing limited privacy rights as a result of their convictions, in order to include their DNA in a nationwide database(s). The database is a law enforcement tool touted as a means of tying criminals to unsolved, unrelated crimes either now or in the future. On Monday SCOTUS handed down its decision in Maryland v. King, No. 12-207 (June 2013), approving extension of this intrusive practice to citizens who have been arrested – not convicted - merely arrested, regardless of the fact they may never be charged, ultimately released, or acquitted.

As the dissent recognized, this invasion of privacy violates the sacred Fourth Amendment prohibition against warrantless searches. Relying on Chandler v. Miller, 520 U. S. 305 (1997), the dissent correctly observed there is only a small cluster of exceptions to this prohibition; exceptions that always advance goals other than crime detection. For instance, SCOTUS approved random drug testing of railroad employees in order to preserve public safety in Skinner v. Railway Labor Executives' Assn., 489 U.S. 602, 620 (1989). Similarly, it approved suspicionless searches in public schools in order to ensure a better educational climate for students in Vernonia School Dist. 47J v. Acton, 515 U. S. 646 (1995).

Crime detection is a qualitatively different aim. Because the government is endowed with unparalleled, crushing power in investigating and prosecuting crimes, and because the consequences for those convicted are so dire, suspicionless or warrantless DNA searches ought to be singularly viewed as an impermissible means of detecting and fighting crime. In other words, the government should first establish probable cause in the criminal context and/or obtain a search warrant before subjecting a person to such a search, which is usually performed by taking a lollipop shaped buccal swab, forcing the suspect to open his or her mouth, and swiping the inner cheek, tongue, and/or roof of the mouth. SCOTUS tried to circumvent this fundamental protection by likening DNA sampling to taking an arrestee's photograph or fingerprints. In my opinion not only as former prosecutor and long-time defense attorney, but also as a former sheriff responsible for running the jails and prisons of the most populous county in New England, this comparison is simply a non sequitor.

A headshot photograph is not a physical intrusion and does not evoke much in the way of privacy concerns - if that were the case Facebook and Instagram would be the largest criminal enterprises ever. So too, fingerprints, which are used in the booking process merely to identify the arrestee, not to try to link him or her to unsolved crimes. Moreover, there's a big difference between inking a thumb and opening and swabbing oral cavities. Also, fingerprint ID in non-criminal contexts is both accepted and routine – particularly in business, scientific, or trade industries where product security or trade secrets protections or restricted access are prevalent.

By contrast, DNA is far more complex than either a photograph or fingerprints: it is the ultimate personal identification and contains an overwhelming wealth of sensitive and distinguishing information about the subject, such as his or her gender, race, family relationships, possible health problems, even possible factors pertaining to mental acuity. This is precisely why the government views it as a more powerful crime-fighting tool than fingerprints - and precisely why there is so much potential for government abuse and the reason its collection should not be mandated as to those not yet convicted of a crime, but especially those who have not appeared in court to answer charges or even consulted with an experienced criminal defense attorney like me.

Even though Justice Breyer seems to have been swayed to join the majority because of the purported application only to cases involving "serious offenses," such a qualification is the classic "slippery slope," and it has been pointed out there is no logical reason for this limitation. If DNA swabs can link someone arrested for assault to an unsolved crime, they can do so just as easily for someone arrested for a traffic violation. And what's next - mandatory blood samples?

As Justice Scalia explained in his dissent, "Make no mistake about it: As an entirely predictable consequence of today's decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason." Monday's decision therefore represents not only a serious setback for criminal defense attorneys like me committed to protecting due process and privacy rights, but also to everyday citizens. Our society must recommit itself to the principle that the government does not enjoy limitless power to investigate crime, but must be subject to the strict limits not only of common sense notions of privacy, but also the bedrock constitutional safeguards the Fourth Amendment guarantees. In the meantime, if you are arrested, literally don't open your mouth until you're afforded the opportunity to speak with an experienced criminal defense attorney like me who will argue that the purported crime is not a "serious offense" subject to DNA collection. The alternative is the government knowing more about you than your own primary care physician.