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The Police Can Now Access Your DNA Without A Warrant, Even When You Can’t Access It At All

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"The Police Can Now Access Your DNA Without A Warrant, Even When You Can’t Access It At All"

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The U.S. Supreme Court on Monday upheld the use of DNA databases to collect genetic information from suspects arrested but not yet charged, without any requirement that officers first show probable cause. The 5-4 ruling overrules a state court determination that Maryland’s DNA collection law permits unconstitutionally invasive searches.

In the short term, the ruling means that law enforcement officials can collect DNA from anyone accused of a violent crime or burglary and upholds existing DNA collection laws in about 28 states. This DNA stays in a database and can serve as the basis for later accusing people of other, unrelated crimes. As the Maryland Supreme Court pointed out in their ruling, only 16 percent of people arrested for some felonies are eventually convicted, and more than one in four people charged with crimes that are much easier to prosecute are not convicted. This means widespread DNA testing ensnares a whole lot of innocent people. But even those who believe they could never be suspected of a violent crime may not be insulated from testing. Justice Antonin Scalia warns in a dissent joined by three of the court’s more liberal justices that the court’s reasoning would apply equally to someone accused of any crime or violation at all:

When there comes before us the taking of DNA from an arrestee for a traffic violation, the Court will predictably (and quite rightly) say, ‘We can find no significant difference between this case and King.’ 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.

Under the Fourth Amendment, each collection of DNA through a cheek swab is a warrantless, suspicionless search that must be justified by some other government interest. The majority says the searches are justified because they are a means of identifying suspects, much like fingerprints. But this reasoning is entirely unpersuasive to the dissenting justices, and could justify a whole host of DNA collection from anyone who flies on an airplane, applies for a driver’s license, or attends a public school.

The real efficacy of each of these tactics appears to be solving more crimes. In that respect, Justice Anthony Kennedy cites a previous U.S. Supreme Court case in which the court touted DNA’s “unparalleled ability both to exonerate the wrongly convicted and to identify the guilty.” What he doesn’t disclose is that in that 2009 case, the court unequivocally denied a defendant facing the death penalty access to his own DNA, even though he was willing to pay for tests at his own expense. Writing for the majority, Chief Justice John G. Roberts worried then that requiring defendants’ access their own DNA risks “unnecessarily overthrowing the established system of criminal justice.”

Both Justices Roberts and Kennedy appear to have abandoned that concern here, and dismissed the more pressing concern that Fourth Amendment protections no longer apply to arrestees, whose DNA, once collected, can be used as the sole basis for accusing an individual of other unrelated crimes. The result of these two decisions is that law enforcers have even greater access to more people’s DNA to initiate new prosecutions, while defendants’ access to even the DNA samples needed to expose egregious law enforcement errors in their own cases is continually thwarted.

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