John Whitehead's Commentary

“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.” – Justice Antonin Scalia, dissenting in Maryland v. King

As I document in my new book, A Government of Wolves: The Emerging American Police State, our freedoms—especially the Fourth Amendment—are being choked out by a prevailing view among government bureaucrats that they have the right to search, seize, strip, scan, spy on, probe, pat down, taser, and arrest any individual at any time and for the slightest provocation.

Now, thanks to the U.S. Supreme Court’s devastating decision in Maryland v. King—in which a divided Court determined that a person arrested for a crime who is supposed to be presumed innocent until proven guilty must submit to forcible extraction of their DNA—you can add invasive DNA sampling to the list of abuses being “legally” meted out on the long-suffering American populace.

Once again the Court has sided with the guardians of the police state over the defenders of individual liberty in determining that DNA samples may be extracted from people arrested for “serious offenses.” While the Court claims to have made its decision based upon concerns of properly identifying criminal suspects upon arrest, what they have actually done is opened the door for a nationwide dragnet of suspects targeted via DNA sampling.

The case revolves around Alonzo King, who was arrested on April 10, 2009, and charged with assault. Relying on a state law which authorizes DNA collection from people arrested but not yet convicted of a crime, while processing King’s arrest, police obtained his DNA via a forcible cheek swab without first procuring a warrant. This information was not used to identify him, but rather sat in a police file, and then a crime lab, before finally being tested some months later. In the meantime, King was positively identified via fingerprinting and other methods. Once his DNA was finally tested, over three months later, the results were entered into Maryland’s DNA database, alongside other personally identifying information. This information was then forwarded to the FBI’s national DNA database, where it was found to be a match to evidence taken from the scene of an unsolved rape that occurred in 2003. King was then tried and convicted of the 2003 rape.

On appeal, the Maryland Court of Appeals ruled in April 2012 that the state law used to forcibly extract King’s DNA violated the Fourth Amendment. In an unusual move, in July 2012, Supreme Court Chief Justice John Roberts issued a stay of the lower court’s ruling, prior to the Court’s even agreeing to hear the case, using the rationale that collecting DNA from people accused of serious crimes is “an important feature of day-to-day law enforcement practice in approximately half the states and the federal government.”

Interesting side note on Roberts: During his stint on the U.S. Court of Appeals, Roberts issued a ruling in a case involving a 12-year-old girl who was “arrested, searched, and handcuffed. Her shoelaces were removed, and she was transported in the windowless rear compartment of a police vehicle to a juvenile processing center, where she was booked, fingerprinted, and detained until released to her mother some three hours later—all for eating a single french fry in a Metrorail station. The child was frightened, embarrassed, and crying throughout the ordeal.” Nevertheless, Roberts ruled that her constitutional rights had not been violated in any way. As one Washington Post reporter noted at the time, you can tell a whole lot about Roberts “by looking at how he handled a single french fry.”

Considering that Roberts, despite his stated reservations, saw little need to restrain the police in searching a 12-year-old for a french fry, it should come as no surprise that he sees nothing wrong with forcible DNA extractions by police of individuals presumed innocent until proven guilty.

Thus, when King’s lawyers mounted their appeal to the Supreme Court, insisting that the police had not obtained a warrant in order to extract King’s DNA and had no particular reason for obtaining his DNA during his arrest, Roberts sided with the police, justifying the practice as being a legitimate means of identifying individuals suspected of having committed “serious offenses.” With Justices Anthony Kennedy, Clarence Thomas, Stephen Breyer and Samuel Alito joining Roberts in affirming the practice of warrantless DNA grabs by the police, the Court’s 5-4 ruling further guts an already severely disemboweled Fourth Amendment and goes so far as to equate forcefully obtaining a DNA sample to “fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.”

The only glimmer of reason came from Justice Antonin Scalia, who wasted no time dispatching the Court’s dubious claim that DNA is necessary for suspect identification. Scalia was joined in his biting dissent by the three female justices on the Court (Ginsburg, Sotomayor, and Kagan). As the minority opinion pointed out, Maryland actually took a full three months to test King’s DNA before handing the DNA over to the FBI to be matched against a database of unsolved crimes (that is, crimes in which the suspect has not been identified). Clearly, the state’s intention was not to identify King, but to potentially implicate him in a crime other than the one for which he was accused.

While the Court majority attempted to delineate a difference between collecting DNA in general versus cases in which the suspect is accused of a “serious offense,” Scalia rightly pointed out how meaningless this distinction really is, given that the Court’s ruling succeeds only in burdening “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.” For example, if such a questionable practice were to prevail simply for the sake of “solving more crimes,” as Scalia suggests, it would not take much to justify the “taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the “identity” of the flying public), applies for a driver’s license, or attends a public school.”

As disheartening as this ruling is, it is simply one more volley in a long line of attacks on our right to be free from unreasonable searches and seizures by government agents. In the past few years, the Supreme Court has determined that freedom from unreasonable government intrusion, a core component of the United States Constitution, is of little importance in an age of surveillance and security at any cost.

Just consider the ramifications of some of the muddle-headed rulings handed down in recent years:

It’s okay for police officers to use excessive force as long as they don’t know that the Constitution prohibits them from doing so. In 2012 the Supreme Court let stand a Ninth Circuit Court of Appeals decision in Brooks v. City of Seattle, in which police officers who clearly used excessive force when they repeatedly tasered a pregnant woman during a routine traffic stop were granted immunity from prosecution. The Ninth Circuit actually rationalized its ruling by claiming that the officers couldn’t have known beyond a reasonable doubt that their actions—tasering a pregnant woman who was not a threat in any way until she was unconscious—violated the Fourth Amendment.

In an effort to make life easier for overworked jail officials, they can strip search anyone brought in, under any pretext. In Florence v. Burlington, a divided Supreme Court actually prioritized making life easier for overworked jail officials over the basic right of Americans to be free from debasing strip searches. In its 5-4 ruling, the Court declared that any person who is arrested and processed at a jail house, regardless of the severity of his or her offense (i.e., they can be guilty of nothing more than a minor traffic offense), can be subjected to a virtual strip search by police or jail officials, which involves exposing the genitals and the buttocks.

Police officers can break into homes, without a warrant, even if it’s the wrong home as long as they think they have a reason to do so. In an 8-1 ruling in Kentucky v. King, the Supreme Court placed their trust in the discretion of police officers, rather than in the dictates of the Constitution, when they gave police greater leeway to break into homes or apartments without a warrant. Despite the fact that the police in question ended up pursuing the wrong suspect, invaded the wrong apartment and violated just about every tenet that stands between us and a police state, the Court sanctioned the warrantless raid, leaving Americans with little real protection in the face of all manner of abuses by law enforcement officials.

The sensibility of police dogs trumps the Constitution. In Florida v. Harris a unanimous Court declared roadside stops to be Constitution-free zones where police may search our vehicles based upon a hunch and the presence of a frisky canine. The Court was presented with the case of Clayton Harris who, in 2006, was pulled over by Officer William Wheetley for having an expired license tag. During the stop, Wheetley decided that Harris was acting suspicious and requested to search his vehicle. Harris refused, so Wheetley brought out his drug-sniffing dog, Aldo, to walk around Harris’ car. Wheetley searched the car and found materials allegedly used in the manufacture of methamphetamine. Harris challenged the search, arguing that the police had not provided sufficient evidence that Aldo was a reliable drug-sniffing dog, thus his supposed alert on Harris’ door did not give the officer probable cause to search the vehicle. But the U.S. Supreme Court sided with police by claiming that all that the police need to do to prove probable cause for a search is simply assert that a drug detection dog has received proper training. As such, the Court has now given the police free reign to use dogs as “search warrants on leashes,” justifying any and all police searches of vehicles stopped on the roadside. The ruling turns man’s best friend into an extension of the police state.

This is what one would call a slow death by a thousand cuts, only it’s the Fourth Amendment being inexorably bled to death. This latest wound proves that there really is nothing standing between the American people and the police state which has slowly grown up around our society.

Any American who thinks they’re safe from the threat of DNA sampling, blood draws, and roadside strip and/or rectal or vaginal searches simply because they’ve “done nothing wrong,” needs to wake up to the new reality in which we’re now living. As the Supreme Court’s ruling in Maryland v. King shows, the mindset of those in the highest seats of power—serving on the courts, in the White House, in Congress—is a utilitarian one that has little regard for the Constitution, let alone the Fourth Amendment. Like Justice Scalia, all I can hope is that “today’s incursion upon the Fourth Amendment” will someday be repudiated.

WC: 1854

ABOUT JOHN W. WHITEHEAD

Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His most recent books are the best-selling Battlefield America: The War on the American People, the award-winning A Government of Wolves: The Emerging American Police State, and a debut dystopian fiction novel, The Erik Blair Diaries. Whitehead can be contacted at staff@rutherford.org. Nisha Whitehead is the Executive Director of The Rutherford Institute. Information about The Rutherford Institute is available at www.rutherford.org.

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