If you think people were wrongfully stopped, searched, and arrested before, the 5-4 decision made by the Supreme Court to allow the collection and storage of DNA of anyone who is arrested will make prior stop and frisk statistics look like child’s play.
This decision, to the shock and dismay of many in the legal profession, will surely have a disproportionate impact on Blacks and the poor.
The origin of this new law is from a Maryland case, where Alonzo Jay King was arrested for assault and his DNA was collected upon arrest, but prior to a conviction. His DNA swab matched a 2003 rape case, which he was convicted of. His lawyers appealed the case stating that the DNA collection was an invasion of his rights against unreasonable search and seizure due to the DNA being collected and tested for other unrelated cases, prior to his conviction.
The Maryland Court of Appeals ruled that the collection of this DNA prior to conviction was not a violation of his Fourth Amendment rights of privacy. The case was appealed to the United States Supreme Court and was upheld.
Now, not only does the DNA swab upon arrest apply in Maryland, it applies for the entire United States.
USA Today reports:
In the end, the justices had to balance the benefits and the intrusion of a simple cheek swab — and the considerable benefits won out. Justice Anthony Kennedy wrote the majority’s 5-4 decision, in which one liberal justice, Stephen Breyer, concurred. The key to the ruling, Kennedy said, is “reasonableness.”
“DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure,” Kennedy said. “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.”
But I beg to differ, in this country there has already been a history of unfair arrests, searches, and traffic blocks as a smoke screen to arrest people. Now with the ability to add to the national DNA collection, it will surely entice police to perform more arrests in order to help build their DNA database.
With the Supreme Court’s decision, even if you are innocent, the police have the right to collect your DNA!
In the words of Justice Antonin Scalia who was against this decision in the 5-4 ruling with the Supreme Court, “Make no mistake about it: Because of today’s decision, your DNA can be taken and entered in to a national database if you are ever arrested, rightly or wrongly, and for whatever reason.”
This decision is a far cry from what the law was before.
Previously, states collected DNA of people convicted and sentenced to prison. Those people had their DNA collected upon conviction, which is much different than collecting DNA from those simply arrested, whether guilty or innocent.
As an attorney, this new decision is scary because it will impact the rights of hundreds of thousands of citizens: Not only does this allow police to investigate crimes that they do not have a warrant for by comparing DNA taken to others in the database, but this database will live forever.
One of the most-frightening issues that I have seen are cases where DNA was tampered with as well as DNA labs being compromised for accuracy, thus getting the wrong people convicted.
As a Black man, this is horrifying because it will surely cause more unlawful stops, illegal arrests, and unfair treatment of Blacks and the poor. Although every police department will not be unfair, there will be those that will seize the opportunity.
If you are not scared of what is to come, then you should be.
Eric L. Welch Guster is founder and managing attorney of Guster Law Firm in Birmingham, Ala., handling criminal and civil matters, catastrophic injuries, criminal defense, and civil rights litigation. Mr. Guster has become a go-to lawyer for the New York Times, NewsOne, NBC, CBS, ABC, FOX, Black America Web, and various radio programs about various court issues and high-profile cases.
Follow Guster on Twitter @ericguster.