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Criminal defense lawyers not only protect the rights and liberties of their clients, but they are also often the last defenders of the Constitution, especially when their client is less than sympathetic.  Demanding that law enforcement respect the Fourth Amendment’s protections against unreasonable searches is often an uphill battle. One which is increasingly more difficult as technology allows the Government almost unfettered access to our personal data.
 
The Supreme Court’s decision this past Term allowing law enforcement to collect DNA cheek swabs in the same manner in which it collects fingerprints has drawn sweeping attention in both the legal and media communities.
 
Some praise the decision as endorsing a modern crime-fighting tool while critics see it as a dangerous endorsement of “general warrants”—warrants obtained without a sworn oath that a crime has occurred, and, thus, allows the warrants to be used in any manner the bearer so desires. Justice Antonin Scalia, in a blistering dissent, said Americans got their fill of general warrants when the British used them randomly, and without cause, to search their persons and homes. These warrants are why we have the protection of the Fourth Amendment.
 
Beyond the debate triggered the Maryland v. King decision, the decision is noteworthy because of the constitutional split it elicited among the justices. The majority opinion was written by Justice Anthony Kennedy and was joined by Chief Justice Roberts, Justices Alito, Thomas, and Breyer. The dissent, authored by Justice Scalia, was joined by Justices Sotomayer, Ginsburg, and Kagan.
 
So what you have is a decision in which one of the most liberal justices, the Honorable Stephen Breyer, joined three of the most conservative justices while one of the most conservative justice joined three of the most liberal justices in deciding the case. And the legal differences expressed by the majority and the dissenting justices were striking. Justice Scalia at times could barely contain his contempt for the majority’s reasoning.
 
Scalia’s contempt centered on the majority’s contention that the mandatory collection of DNA cheek swabs serves the special purpose of “identifying” criminals in unsolved cases. Scalia said the majority used “cups and balls” trickery to allow a “suspicionless search” with the DNA cheek swab.
 
We agree. The wording of the Maryland DNA Collection Act (“Act”) itself undermines the majority’s reasoning that “identification” is necessary at “every stage of the criminal process” in order to match criminals to unsolved crimes. The Act provides that a “DNA sample collected from an individual charged with a crime … may not be tested or placed in the statewide DNA data base system prior to the first scheduled arraignment date.”
 
Justice Scalia warned Maryland officials not to take the majority’s identification rationale “seriously” because it could lead to jail time because the Act punishes any individual who obtains or tests DNA in an unauthorized manner.
 
The amount of time it took to connect Alonzo King to an unsolved 2003 rape also undermines the “identification” rationale. King was arrested on April 10, 2009 for an assault offense. Two weeks later, April 23, his DNA sample was received by the Maryland State Police’s Forensic Sciences Division. It was not until June 25, 2009 that this division mailed the sample to the lab for testing. The tests results were finally entered into Maryland’s DNA database on July 13, 2009, including the information that the sample was taken from King. Altogether, it took three months from arrest to the date the test results were entered into the Maryland database, and another month, August 4, 2009, before the FBI’s national database linked King’s sample to the 2003 unsolved rape.
 
To be fair, the Act does enumerate just two instances in which a DNA sample may be used for “identification” purposes: to help identify human remains and to help identify missing persons. Thus, this conclusion is inescapable: the Act is a “crime-fighting tool” and the DNA cheek swabs are “suspicionless searches” that have absolutely nothing to do with “identification.”  That’s precisely why the Act does not require a second DNA cheek swab from a suspect previously arrested and for whom a DNA sample already exists in the database. And that’s why we fully endorse the brilliant conclusion of Justice Scalia’s dissent:
 
“The most regrettable aspect of the suspicionless search that occurred here is that it proved to be quite unnecessary. All parties concede that it would have been entirely permissible, as far as the Fourth Amendment is concerned, for Maryland to take a DNA sample of King’s DNA as a consequence of his conviction for second-degree assault. So the ironic result of the Court error is this: The only arrestees to whom the outcome here will ever make a difference are those who have been acquitted of the crime of arrest (so that their DNA could not have been taken upon conviction). In other words, this Act manages to burden uniquely the sole group for whom the Fourth Amendment’s protections ought to be most jealously guarded: people who are innocent of the State’s accusations.
 
“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 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.”
 
We agree with Justice Scalia’s sentiments and will not so easily forfeit our rights, or those of our clients, to the voracious appetite of Big Brother for the private morsels of our lives.