DNA: No Expectation of Privacy

As living beings everywhere we go and almost everything we do leaves behind minute traces of our unique DNA molecules which can potentially be used to identify us as having been there and done that.  

Hairs are continually falling out from our bodies; skin cells are continually sloughing off; and body fluids continually discarded, all of which contain uniquely identifiable DNA. It’s like leaving fingerprints behind except that DNA comparison leads to far more accurate personal identification of an individual than fingerprint analysis and is much easier to obtain.

That’s why, in my opinion, there is no more personal expectation of privacy with a person’s DNA than there is with saliva (which contains that DNA) when it’s left on a paper cup and discarded in the trash. Anyone could retrieve that cup and discern the DNA left behind for identification purposes, including matching it with a database containing DNA samples from unsolved crimes.

In short, no person circulating in society can legally claim an expectation of privacy in regard to their personal identity, and that personal identity should rightfully be employed for the purpose of, among other things, assisting in solving unsolved crimes.

Now, that doesn’t mean that the government has the right to go around unbridled forcing people, without reasonable suspicion and probable cause, to give up DNA samples for the purpose of solving unsolved crimes – that would clearly violate the Fourth Amendment prohibitions against unreasonable searches and seizures – but taking such samples from arrestees for violent crimes, who are already lawfully in police custody, and comparing them to samples in an unsolved crimes database, does not violate the Fourth Amendment.

That’s why I think that the U.S. Supreme Court got it right in such a case recently, but lamentably for the wrong reasons, as our irascible old friend, Justice Scalia pointed out in his unassailably reasoned dissent. The case is Maryland v. King, decided on June 3, 2013, only two days ago.

After his 2009 arrest on first and second-degree assault charges, booking personnel used a cheek swab to take a DNA sample from arrestee King. The swab was matched to an unsolved 2003 rape, and King was eventually charged and convicted of that crime.

He moved to suppress the DNA match, arguing that the procedure violated the Fourth Amendment. By a 5-4 majority, the Court held that when officers make an arrest supported by probable cause to hold  a defendant for a serious offense and bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.

So far, so good, and I agree 100%.

But what Justice Scalia, (in a highly unusual association with the three left leaning Justices on the Court), so aptly and sarcastically pointed out in his dissent is that the majority grounded its decision on a holding that the procedure was valid and necessary to identify the arrestee, when in fact that conclusion is absurd. It was really done for the sole purpose of using the sample to try to solve unsolved crimes; crimes for which there were no probable cause to believe that King was guilty.

Scalia is right. 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. In the few instances in which the Court has allowed a suspicionless search, it always insisted upon a justifying motive apart from the investigation of crime.

I certainly do applaud Justice Scalia for his vigilant stance on the Fourth Amendment. He rightly worries about the potential for police abuse, such as forcefully taking DNA samples from defendants arrested and in custody for routine traffic offenses.

“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,” he warns.

Again, Scalia is correct, but I can’t help but think that when arrestees for crimes, especially violent crimes, are already in lawful police custody, they have no reasonable expectation of privacy for their fingerprints, photographs, and yes, even their DNA if a sample can be taken without undue intrusion. The majority should have decided the case on that basis instead of reaching for absurd conclusions.

A search is not unreasonable for Fourth Amendment purposes under such circumstances, and the evidence obtained thereby should be available for the purpose of, among other things, assisting the police in their mission of solving unsolved crimes where there is no expectation of privacy in regard to such evidence.

With DNA there is no expectation of privacy.