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updated 6/3/2013 1:20:32 PM ET 2013-06-03T17:20:32

Law enforcement officials can take routine DNA samples from those they arrest, the Supreme Court ruled on Monday. But civil liberties groups, as well as the dissenting justices, warned about the decision's impact on privacy rights.

Law enforcement officials can take routine DNA samples from those they arrest, the Supreme Court ruled on Monday. A 5-4 majority held that doing so is little different from taking fingerprints, and therefore does not intrude on a suspect’s Fourth Amendment rights.

But civil liberties groups, as well as the dissenting justices, stridently disagreed with the ruling, authored by Justice Anthony Kennedy.

“Justice Kennedy says you’ve got to get somebody’s identification for booking purposes, but that’s not what’s happening here,” Jim Harper, director of information policy studies at the libertarian Cato Institute, told MSNBC. “They’re collecting DNA to investigate a person for other crimes that happened elsewhere, for which they have no suspicion.”

Police “have to have some reason to believe that you committed a crime” before they search you for evidence of your guilt, said ACLU legal director Steven Shapiro. Echoing Harper, Shapiro argued that the majority opinion in the case, Maryland v. Kingcreated a “gaping new exception” to that rule by allowing police to collect DNA evidence which they would then use to investigate old, unsolved crimes.

Justice Kennedy and the other members of the majority argued that DNA collection was more a process of identification than a search of the suspect. “[T]he need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody” is “well established,” wrote Kennedy. He pointed out that DNA collection is a simple, non-invasive procedure.

But Harper said the ease of the procedure was irrelevant, because it still constituted a search.

“Is it also within the sphere of things you can do to examine the contents of [the suspect's] cell phone to see if he’s planning an extortion plot?” Harper asked.

In his dissenting opinion, Justice Antonin Scalia also compared routine DNA collection to an indiscriminate search.

“Searching every lawfully stopped car…might turn up information about unsolved crimes the driver had committed, but no one would say that such a search was aimed at ‘identifying’ him, and no court would hold such a search lawful,” wrote Scalia, a conservative, who was joined in his dissent by  three more liberal justices, Elena Kagan, Sonia Sotomayor, and Ruth Bader Ginsburg.

Justice Stephen Breyer, who normally sides with the liberal wing, joined the four conservative justices, minus Scalia, in the majority.

Shapiro predicted that the court may soon hear further cases regarding DNA collection, and that the impact of the ruling could be narrowed. He pointed out that the Maryland law under consideration has “some crucial safeguards” which similar state laws lack: In particular, Shapiro said, it bans the police from using DNA evidence to determine whether an arrestee’s family members should be investigated for unrelated crimes.

“I think it’s premature to say that this decision upholds all DNA testing laws for all arrestees,” said Shapiro.

Video: High court rules on taking DNA from those arrested

  1. Closed captioning of: High court rules on taking DNA from those arrested

    >> possibility that we would get something from the supreme court today and we did. this is about the dna case and here's the question that was before the court and i'm going to bripg in pete williams . this is basically the question of whether or not you can take dna from someone who's been arrested, but presumed innocent, correct?

    >> all states take dna from victim of crimes, this is once they're arrested, but not convicted of a crime. half the state do this and the support upheld the practice. what the challenge said is you're taking dna from somebody you don't suspect of committing another crime. there's no probable cause, police don't have the legal standing to get that dna sample. but the court said today there are two reasons why it is in essence a legitimate thing for the police to do. first of all, they said you want to establish the identity of the person and secondly, they said in order to determine whether it's safe to release them on bail, it's good to know whether they have another conviction for violent crime out there that perhaps the dna would solve. what the police want to do is take this dna and check it against the database of unsolved or so-called cold cases and the supreme court said for those two reasons, you can do it. interesting lineup of the justices here. justice kennedy wrote the opinion. he was joined by three of the court's conservatives. roberts, thomas and alito and always by justice breyer for the fifth vote. the courts liberals, the other liberals. ginsburg, and kagan. for all practical purposes, it's the 21st century version of fingerprints and police can take them when someone's arrested. that's it for today. looks like we won't get opinions again until next monday.

    >> the other things that are outstanding and obviously there are some very critical ones includinging same-sex marriage, doma and some voting rilgts rulings that are being anxiously awaited.

    >> we've been -- been on the calendar longer than any other case. it looks like another term where the biggies come at the end.

    >> thank you so much, pete

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