Freedom from Search

                The liberty principle for this Freedom Friday is the simple fact that Americans are guaranteed freedom from unreasonable search and seizures; this freedom is guaranteed by the Fourth Amendment to the United States Constitution, which states:  “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

                Gerard V. Bradley of The Heritage Foundation wrote, “The Fourth Amendment is the most prolific source of constitutional litigation in American history….  Its reach is indescribably broad:  every one of the millions of arrests made annually is a Fourth Amendment event.  So too is every search of every person or private area by a public official, whether a police officer, schoolteacher, probation officer, airport security agent, or corner cross guard.  The Fourth Amendment is the constitutional sentry whenever someone’s privacy is diminished by a governmental search or seizure.  It protects a person’s `legitimate expectation of privacy.’  Katz v. United States (1967).  `Legitimate,’ the Court declares, means an actual expectation of privacy that society is prepared to recognize as `reasonable.’  In defining that phrase, the reasonableness clause of the Fourth Amendment has spawned a vast amount of litigation” (The Heritage Guide to the Constitution, p. 323).

                On Monday, June 3, 2013, the U.S. Supreme Court ruled by a 5-4 majority that criminal suspects can be subjected to a police DNA test after their arrest but before a trial and conviction.  According to Bill Mears, CNN Supreme Court Producer, this is “a privacy-versus-public safety dispute that could have wide-reaching implications in the rapidly evolving technology surrounding criminal procedure.  At issue in the ruling Monday was whether taking genetic samples from someone held without a warrant in criminal custody for `a serious offense’ is an unconstitutional `search.’ 

“A 5-4 majority of the court concluded it is legitimate, and upheld a state law.  `When officers make an arrest supported by probable cause to hold for a serious offense and they 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,’ the majority wrote.”

Mears explained that “law enforcement lauds genetic testing’s potential as the `gold standard’ of reliable evidence gathering, especially to solve `cold cases’ involving violent offenders.  But privacy rights groups counter the state’s `trust us’ promise not to abuse the technology does not ease their concerns that someone’s biological makeup could soon be applied for a variety of non-criminal purposes.

“Twenty-six states and the federal government allow genetic swabs to be taken after a felony arrest and without a warrant.  Each has different procedures, but in all cases, only a profile is created.  About 13 individual markers out of some 3 billion are isolated from a suspect’s DNA.  That selective information does not reveal the full genetic makeup of a person and, officials stress, nothing is shared with any other public or private party, including any medical diagnostics.”

Dan Calabrese explained that the Supreme Court decision came in a case from 2009 involving a man named Alonzo King.  He “menaced a crowd of people with a shotgun” and was arrested on first-degree charges.  While being booked at the police station, the “police took a DNA sample” allowed “under a Maryland law that allows collection from suspects taken into custody with probable cause.”

When the DNA sample was run through a DNA data base, it “revealed that King had raped a woman in her home in 2003 on the basis of forensic evidence collected from the victim.  King sued, claiming that without a warrant the test violated the Fourth Amendment’s protection against unreasonable searches, and the Maryland Court of Appeals agreed.”

Calabrese summarized the explanation of Justice Anthony Kennedy who wrote for the majority:  “genetic information can be reasonably obtained for the purposes of identifying the person.  People in custody have no reasonable expectation of privacy, and accurately assessing the risks a suspect poses to the public is critical.  That is especially true for criminal history, since violent criminals tend to be recidivists.  Justice Kennedy equates DNA with the routine practice of fingerprinting suspects, which the courts have long upheld.” 

As a self-described “law-and-order type conservative,” Calabrese supports the decision of the Supremes.  He believes “there is no difference [between fingerprinting a person and collecting a DNA sample].  It’s just that one has been an established aspect of police work longer than the other has, because in the case of the latter, the science is newer.  Just as it’s permissible to collect fingerprints as an identifying mark of an individual and to log that information into law enforcement databases, there’s no reason it shouldn’t be permissible to collect DNA in the same way and to the same end.”

Robert Laurie, a Libertarian-leaning colleague of Calabrese, believes that the Supreme Court decision is “atrocious” and listed three reasons for his belief.

“1. It clearly violates the Fourth Amendment…. DNA is both a part of my `person’ and one of my `effects.’  It grew as a part of me and I own it….”  He believes that “simply being accused of a possible transgression” is different than being “convicted of a crime and incarcerated,” the latter causing greater loss of freedom.  He also wonders if the government will “be forced to destroy that evidence, or will it be sitting in a database somewhere, ready to be used against me in the future?”

“2. My fingerprints don’t contain my entire genetic code.  The building blocks of everything I am as a person are contained in every drop of my blood, and in every `swabbed’ cheek cell.  From it, the feds, or government can determine not just my identity, but my health status, my genetic relations, and my entire family ancestry.”  Since scientists are “hard at work to find the `gay gene,’ as well as the `conservative gene’ and the `liberal gene,” he believes that the “potential for abuse is virtually limitless.”

“3. We know we can’t trust the government to handle this information properly....  If we can’t halt our government’s current overreach, why in the world would anyone – right or left – be willing to grant it the tools to expand its intrusion?  This Supreme Court decision does nothing but grease an already slippery slope.”

                Freedom from “unreasonable” search and seizures is much more complicated in our day and age than it was during our Founding.  I will admit that my first thought upon hearing the decision was about the same as that of Calabrese.  I could not see much difference between fingerprinting and taking DNA; besides, I am a law-abiding citizen and do not have any previous “crimes” to be discovered.  Why do I need to worry?

Since I read Laurie’s comments, I have been doing further thinking on the subject.  IF we could trust our government, I would not be concerned about the DNA sampling, BUT our government has proven to be untrustworthy and could make up crimes for even the best citizens!  A rogue government could certainly use our DNA against us.  We have to protect ourselves from our own government, and the Supreme Court has made the task more difficult!