Alert: Supreme Court Ruling May Affect Your Privacy Rights
The United States Supreme Court ruled this week that police can take DNA from any person arrested for a “serious” crime — and they don’t need a warrant to do it! In a controversial 5-4 decision, the Supreme Court ruled in Maryland v. King that taking an arrestee’s DNA was akin to taking fingerprints or booking photos. Conservative Justice Antonin Scalia wrote a scathing dissent, in which Justices Elena Kagan, Ruth Bader Ginsburg, and Sonia Sotomayor joined. This opinion threatens privacy and could result in questionable arrests of innocent people. There are at least several problems with the majority opinion.
A second problem with this ruling is it may encourage questionable arrests by police agencies eager to try and solve cold cases. (I.e., Police could simply arrest a person, take his DNA and see whether it matches DNA taken at crime scenes in unsolved cases.) For those who can’t see the potential harm, keep in mind that even when a wrongfully arrested person is found innocent and gets his records expunged, he must first spend time locked up in jail, they must usually post bail and usually must hire a lawyer. And, who knows whether an expungement of records would even successfully remove an innocent person’s DNA from a federal or state database.
A third problem is that while the Supreme Court held police may take DNA from any person arrested for a serious crime, the Court didn’t define “serious crime.” Of course, murder, sexual assault, and indecency with a child might all be considered serious crimes. But what about a felony drug offense? Undoubtedly there are many trial court and appellate court judges who believe any felony drug crime is serious. However, many states (including Texas) treat possession of even a tiny amount of cocaine (so-called “residue” cases) as a felony. This means that if police find a nearly immeasurable amount of cocaine on some device that someone left in your car, you could be arrested, jailed, and have your DNA taken (and probably submitted into a federal database) without a warrant.