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Are routine DNA swabs 'unreasonable'?

American colonist James Otis was a defender of smugglers. At least that's how the British saw it.

In 1761, Otis argued against the Crown on behalf of colonial traders who objected to the Sugar Act, which imposed heavy taxes on trade not with England and empowered the British to use broad "writs of assistance" to search anywhere they liked for smuggled goods.

Otis lost the case, but it touched a nerve with the colonists, including John Adams, who said, "Then and there was the child 'Independence' born."

The Founders forged a permanent protection for the citizenry against an overly intrusive government with the Fourth Amendment. It established the "right of the people to be secure in their persons, houses, papers and effects" and protects against "unreasonable searches and seizures."

Through the years, the courts have tried to strike a balance that allows the police (government) to exercise its legitimate function of protecting the public and solving crime, while simultaneously holding true to the constitutionally guaranteed expectation of privacy.

Monday, the U.S. Supreme Court reached a decision that tilts the scales in favor of the government.

In a narrow 5-4 decision, the court found that police may collect DNA from a suspect (through a buccal swab inside their mouths), and then cross-reference the person's genetic code with a database of DNA linked to unsolved crimes, even if the individual is not a suspect in any of those cases.

Justice Anthony Kennedy, writing for the majority, said the DNA swab was little more than another way to identify an individual, a high-tech version of a picture or a fingerprint.  He called it "a legitimate police booking procedure that is reasonable under the Fourth Amendment."

However, Justice Antonin Scalia, in a scathing dissent, said the majority's argument strained credulity, and that the DNA swabs are tantamount to the expansive warrants of the 18th century that gave rise to the revolution.

"Suspicionless searches are never allowed if their principal end is ordinary crime-solving," Scalia wrote.

Defenders of the Maryland law at the center of the case argue that the DNA samples are collected and tested as an important crime-fighting tool.

Maryland Gov. Martin O'Malley, a Democrat, said the result would be less crime, while providing resolution for open investigations.

That may be true, but do the ends justify the means if the process by which the evidence is gathered is illegal?

Additionally, Scalia suggests that a predictable consequence of the court's decision is "your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason."

Under Maryland's law, and the law as it exists in 27 other states, being taken into police custody makes a person a de facto suspect in every unsolved crime.

Americans have a right to expect their government to make a good faith effort to protect them from crime and violence. However, that must be accomplished without being overly invasive.

That is clearly established in the Fourth Amendment, and it was understood by the country's early patriots who witnessed firsthand the abuse that accompanies warrantless searches.

Kercheval is host of TalkLine, broadcast by the MetroNews Statewide Radio Network from 10 a.m. to noon Monday through Friday. The show can be heard locally on WCHS 580 AM.


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