By JESSE J. HOLLAND
WASHINGTON - A sharply divided Supreme Court on Monday said police can routinely take DNA from people they arrest, equating a DNA cheek swab to other common jailhouse procedures like fingerprinting.
"Taking and analyzing a cheek swab of the arrestee DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment," Justice Anthony Kennedy wrote for the court's five-justice majority.
But the four dissenting justices said that the court was allowing a major change in police powers.
"Make no mistake about it: 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," conservative Justice Antonin Scalia said in a sharp dissent which he read aloud in the courtroom. "This will solve some extra crimes, to be sure. But so would taking your DNA when you fly on an airplane - surely the TSA must know the 'identity' of the flying public. For that matter, so would taking your children's DNA when they start public school."
Twenty-eight states and the federal government now take DNA swabs after arrests. But a Maryland court was one of the first to say that it was illegal for that state to take [name withheld]'s DNA without approval from a judge, saying [name withheld] had "a sufficiently weighty and reasonable expectation of privacy against warrantless, suspicionless searches" under the Fourth Amendment.
But the high court's decision reverses that ruling and reinstates [name withheld]'s rape conviction, which came after police took his DNA during an unrelated arrest. Kennedy wrote the decision, and was joined by Chief Justice John Roberts and Justices Samuel Alito, Clarence Thomas and Stephen Breyer. Scalia was joined in his dissent by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.
The American Civil Liberties Union said the court's ruling created "a gaping new exception to the Fourth Amendment."
"The Fourth Amendment has long been understood to mean that the police cannot search for evidence of a crime - and all nine justices agreed that DNA testing is a search - without individualized suspicion," said Steven R. Shapiro, the group's legal director. "Today's decision eliminates that crucial safeguard. At the same time, it's important to recognize that other state laws on DNA testing are even broader than Maryland's and may present issues that were not resolved by today's ruling."
Maryland's DNA collection law only allows police to take DNA from those arrested for serious crimes like murder, rape, assault, burglary and other crimes of violence. In his ruling, Kennedy did not say whether the court's decision limits DNA only to those crimes, but he did note that other states' DNA collection laws differ from Maryland's.
The ruling was praised by the Rape, Abuse and Incest National Network.
"DNA has already aided nearly 200,000 investigations, and thanks to today's decision it will continue to be a detective's most valuable tool in solving rape cases," said Scott Berkowitz, the group's president and founder. "We're very pleased that the court recognized the importance of DNA and decided that, like fingerprints, it can be collected from arrestees without violating any privacy rights. Out of every 100 rapes in this country, only three rapists will spend a day behind bars. To make matters worse, rapists tend to be serial criminals, so every one left on the streets is likely to commit still more attacks. DNA is a tool we could not afford to lose."