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Yesterday, June 3, 2013, the Supreme Court neatly planted new, green sod over the grave of the late Fourth Amendment.  In Maryland v. King, 569 U.S. ___, Slip Op. No. 12-207 (June 3, 2013), the Court held, 5 – 4, obtaining DNA samples from criminal suspects via oral swabbing in permissible under the Fourth Amendment.  The high priests of the Temple of “Justice” divined the procedure analogous to fingerprinting and photographing.

The growth of government power knows no bounds; the ruling itself was not a surprise.  The nature of the close vote was, itself, of slight interest.  The opinion was penned by Justice Anthony “Swing Man” Kennedy.  Joining him were the arch-“conservative” trio of Chief Justice Roberts, Justice Alito, and Justice Thomas.  “Liberal” milk toast Justice Breyer joined in for grins and giggles.

Standing firm for the Constitution and Liberty were the Court’s three Divas, Ginsburg, Sotomayor, and Kagan.  The ladies backed the dissent of Antonin Scalia, the originalists’ originalist and the only Justice usually worth reading or quoting.  Scalia read his dissent aloud in Court.  I’ll examine that dissent in a second.


(Putting the “justice” in Justice.  Google.)

First, in all fairness, let me paraphrase the majority opinion for you: The government can (as always) do whatever the hell it wants.  Good enough?  Good.

Scalia began: “The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence.”  Maryland v. King, supra, at Slip. Op. Scalia Dissent 1.  Citing the Virgina Declaration of Rights, § 10 (1776), Scalia recalled the Founder’s distrust and hatred for “general warrants” whereby persons were searched by the King’s agents without regard to evidence or suspicion.  These warrants were, rightly, considered “grievous and oppressive…”  Id, at Scalia 2.

Like most of the Bill or Rights, the Fourth Amendment has been under continual assault from an ever-growing list of “exceptions.”  Scalia notes these, including suspicionless searches in public prisons…er…schools, but notes that they all (purportedly) derive from some extra-law enforcement need of society.  He goes on to detail how the DNA swabs are intended only for general law enforcement purposes – for the gathering of evidence of criminal wrongdoing.  Id, at 3 -4.

As usual Scalia blasts the majority with its own lame arguments: “The Court hastens to clarify that it does not mean to approve invasive surgery on arrestees or warrantless searches of their homes.  [Internal Cite].  That the Court feels the need to disclaim these consequences is as damning a criticism of its suspicionless-search regime as any I can muster.” Id, at 4.  “Sensing (correctly) that it needs more, the Court elaborates at length the ways that the search here served the special purpose of ‘identifying’ King.  But that seems to me quite wrong – unless what one means by ‘identifying’ someone is ‘searching for evidence that he has committed crimes unrelated to the crime of his arrest.'”  Id, at 5.

The process of “identifying” Mr. King by his DNA took many, many months.  During that time King moved through many stages of the court process on his original charges.  Maryland knew, without a doubt, who they were dealing with.  The DNA was unnecessary for identification; rather, it was critical for a fishing expedition aimed at discovering other potential crimes also committed by King.  This is an affront to both the Fourth and the Fifth Amendments.  By the way, for viewing purposes, the Fifth is buried conveniently next to the Fourth at Constitutional Memorial Gardens.

“King was not identified by his association with the sample; rather, the sample was identified by its association with King. The Court effectively destroys its own ‘identification’ theory when it acknowledges that the object of this search was ‘to see what [was] already known about [King].'”  Id, at 9.  Both the Governor and the Attorney General of Maryland are on record praising DNA collection, not as a suspect identification, but as one designed to fight unsolved crimes.

Scalia knocked the assertion that DNA swabbing is no different, Fourth Amendment wise, than fingerprinting: “The Court asserts that the taking of fingerprints was constitutional for generations prior to the introduction’ of the FBI’s rapid computer-matching system.  This bold assertion is bereft of citation to authority because there is none for it.  The great expansion in fingerprinting came before the modern era of Fourth Amendment jurisprudence, and so we were never asked to decide the legitimacy of the practice.”  Id, at 15.   

I love the following quote: “Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches. The Fourth Amendment must prevail.”  Id, at 17.  Sadly, it did not prevail.

The following is also memorable and, in Scalia’s estimate, “most regrettable”: “All parties concede that it would have been entirely permissible, as far as the Fourth Amendment is concerned, for Maryland to take a sample of King’s DNA as a consequence of his conviction for second-degree assault. So the ironic result of the Court’s error is this: The only arrestees to whom the outcome here will ever make a difference are those who have been acquitted (so that their DNA could not have been taken upon conviction).  In other words, this Act manages to burden uniquely the sole group for whom the Fourth Amendment’s protections ought to be most jealously guarded: people who are innocent of the State’s accusations.”  Id, at 18. 

Classic Scalia: “I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.  I therefore dissent…”  Id, at 18.


(Say Ahhhhhh…for the children and such.  Google.)

This ruling pushes us all a bit further down the slippery slope of the modern Amerikan police state.  Scalia noted as much: “Searching every lawfully stopped car, for example, might turn up information about unsolved crimes the driver had committed…”  Id, at 5.  The King case concerned (nominally) serious cases, felonies.  However, the next time you’re stopped for speeding or blowing through a stop sign, don’t be surprised if the officer demands you open your mouth for a good old swabbing.  “If one believes that DNA will ‘identify’ someone arrested for assault, he must believe that it will ‘identify’ someone arrested for a traffic offense.”  Id, at 17.  It’s all for the children or something, you know…