The Fourth Amendment makes strange bedfellows.
Today’s 5-4 U.S. Supreme Court decision in Maryland v. King —that police can take DNA samples from individuals arrested for serious crimes—found the unlikely combination of Justice Antonin Scalia with Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joining on the dissent.
States allow the collection of DNA for those convicted of a crime, but lower courts are split on whether states can collect DNA without a warrant from people who have only been arrested. The federal government and 28 states allow the collection of DNA from arrestees.
In 2009, after Alonzo Jay King Jr. was arrested on assault charges in Wicomico County, Md., police obtained his D.N.A. profile by swabbing his cheek. That profile matched evidence in a 2003 rape case, and King was later convicted of that crime. The Maryland Court of Appeals ruled  that a state law authorizing D.N.A. collection from people arrested but not yet convicted violated the Fourth Amendment’s prohibition of unreasonable searches.
Writing for the majority and reversing that court, Justice Anthony M. Kennedy said:
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 D.N.A. is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.
But Justice Scalia and his colleagues typically on the other side of court rulings disagreed, with Scalia summarizing his opinion from the bench—a rare move signaling sharp disagreement among the members of the Court.
“The court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the state’s custody, taxes the credulity of the credulous.
Today’s judgment will, to be sure, have the beneficial effect of solving more crimes. Then again, so would 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. Perhaps the construction of such a genetic panopticon is wise. But 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.”
The Court has yet to issue its decisions on another 25 pending cases, among them the controversial and potentially historical cases involving affirmative action, marriage equality and voting rights.
The next round of rulings are expected on Monday, June 10.