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August 2, 2013.
At February’s oral argument in Maryland v. King, about whether the police may take samples of DNA from people arrested for certain crimes, Justice Samuel A. Alito Jr. said it was “perhaps the most important criminal procedure case this court has heard in decades.” He suggested that such DNA swabs were “the fingerprinting of the 21st century.”
The Supreme Court’s decision in the case, issued in June, pretty much lived up to that billing. Justice Anthony M. Kennedy wrote for a 5-4 court that in an arrest for a serious offense backed by probable cause, “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.”
Kennedy’s opinion, joined by Alito as well as Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Stephen G. Breyer, was bad news for Alonzo Jay King Jr., a Maryland man arrested in 2009 on assault charges. King’s DNA sample was taken during booking under a 2008 state law that expanded mandatory sampling to include those arrested for certain serious offenses. The DNA swab linked King to a 2003 rape of a Salisbury, Md., woman; a sample of the perpetrator’s DNA had been entered into a database. King was convicted.
Justice Antonin Scalia wrote a vigorous dissent criticizing the majority for its assertion that the police take DNA samples primarily to identify those in custody, not to solve crimes. That assertion “taxes the credulity of the credulous,” Scalia said in a dissent joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. The decision will have the “beneficial effect” of helping to solve cold cases, he wrote, but so would taking DNA samples from a much broader swath of the population, including “anyone who flies on an airplane, … applies for a driver’s license or attends a public school.”
The King decision drew equally sharp responses among legal observers.
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