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Viewpoint: Supremes Water Down the Fourth, Again
2013-06-07 01:18:24 PM
The use of DNA evidence in criminal cases has proven to be more and more important in the past decade, particularly in serious cases. Up until this week, in order to get a DNA sample from a suspect, the suspect either had to agree to give it up freely, or else a warrant was necessary. Effective June 3, those days are gone.
In a 5-4 decision, the Supreme Court decided Maryland v. King, and thus changed everything. With a majority opinion penned by the recurring swing vote justice in 5-4 decisions, Anthony Kennedy, the U.S. Supreme Court gave law enforcement the authority to get a DNA sample from all suspects in "serious" offenses without securing a search warrant to do so.
Kennedy delivered the majority opinion, stating:
"Taking and analyzing a cheek swab of the arrestee DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment."
Prior to this ruling, it was determined that a suspect's expectation of privacy outweighed the government's purported interest in securing a DNA sample. Apparently, the tide has changed. I suspect this has a lot to do with the recent string of death row exonerations and other convictions that have been overturned by DNA evidence. At least, that is what the majority opinion would have you believe. Kennedy seemed to buy every bit of it and treat it as gospel.
Perhaps I am just a little more cynical than most. I have read this opinion handed down by the Supremes. I have read both the majority as well as the dissent, by Justice Antonin Scalia. I have a unique perspective that most people do not have, as a former felony prosecutor in one of the nation's largest cities, and currently as a criminal defense attorney. Having that perspective of having handled cases from both sides of the bar gives me a perspective that the average Joe doesn't have.
Kennedy and the majority would have you believe this is a win-win situation all around. They reason that this is not an intrusive search (as you are only having the inside of your cheek swabbed, which is a quick and painless procedure), and only good things can result from the findings. Those "good things" they theorize about are the ability to solve cold cases that, prior to this, have gone unsolved.
For those unfamiliar with the DNA process, there exists a federal database called CODIS, or Combined DNA Index System, which is merely a computer program that stores and maintains the federal, state and local DNA samples all across the United States. Whenever DNA is collected as evidence in a crime, that sample is cross-checked with the CODIS database to see if a match exists. If it does, a suspect is developed from the DNA match.
As far as history is concerned, DNA evidence has been instrumental in securing exonerations for previously convicted murderers and rapists, both for those sitting on death row, as well as those rotting away in state or federal prison. This is due mostly to the fact that DNA evidence is a relatively new forensic tool that was not available 15 years ago in cases where convictions were predicated on anything but DNA evidence.
So while I will agree that DNA evidence itself can be a useful tool for solving cold cases, as well as serve as an aid to ensure that the proper suspect is charged, I do not agree that law enforcement has a right to start collecting DNA swabs from every person charged with a "serious" offense. The very term "serious offense" is a problem waiting to happen. The law as it has now been changed indicates that law enforcement can collect DNA swabs from any suspect arrested for a "serious" offense. What, might you ask, makes an offense a "serious" offense? Well, I suppose that depends upon whom you ask. A defense lawyer may only consider a capital murder or some other serious felony, a serious offense. On the other hand, a prosecutor may consider any/all felonies to be "serious" offenses.
Consider for a moment that in Texas, a person who has been twice convicted of shoplifting (theft) and commits a third theft of any amount, will now be charged with a felony. Is that a serious offense? Most of you would agree it is not. But since the term, "serious" offense was purposely left undefined, we have no clue what it does or does not mean. That only serves to ensure that more litigation will ensue and the Supreme Court will be left to deal with defining what constitutes a serious offense as soon as some guy is charged with some offense that that county decries is a "serious" offense, and has his DNA swab taken without a warrant, and the county discovers there is a CODIS hit that matches, and this guy is now on the hook for a cold-case rape that happened years ago. He will appeal his conviction and it will ultimately travel to the Supreme Court for them to define what they failed to define this time around.
However, this is not the critical issue with this decision. There are so many, I am not sure where to begin. I guess it would be best to state the seemingly obvious: When will the floodgates close? Today we are allowed to take a DNA swab of any suspect charged with a serious offense. As this begins to happen and more cold cases are solved, will the law change again from serious offenses to any suspect charged with any crime? No. They would never do that, would they? Why wouldn't they? If it serves to be a valuable law enforcement tool, it will get bigger and bigger and more and more intrusive. It will soon be like a snowball running down a mountain, picking up speed and mass as it travels down, with no one able to control where it will end up.
So you can see the likely trend: We start off with only serious offenses, then we start encompassing all offenses, then traffic tickets as well. What could possibly be next you ask? Well, since the government has such an interest in identifying "dangerous" individuals, shouldn't the government be equally concerned about all air travelers, or bus passengers or train passengers? After all, terrorism is an ever present threat. Soon you can expect to get swabbed by the TSA prior to going through the security checkpoint. It will continue to be done under the "guise" of merely identifying the passengers that are traveling our nation's skies, but really, we know what is going on here.
The bottom line is that the government wants to obtain evidence of a potential crime that they know they would otherwise not be able to obtain, but for this backdoor method. Kennedy several times mentions that the government's interest in properly identifying the suspect who is charged with a serious offense will help to ensure that a dangerous person is not given bail. You see, I would buy that if I was not aware of the practices currently in place that safeguard that very concern. In jails all over the country, all suspects have their criminal histories run through the state and federal crime information database. They know exactly whom they have in custody and exactly how dangerous they may or may not be.
They want to see if this DNA dragnet will help them ensnare more suspects to help solve cold cases that may not otherwise be solved anytime soon, if ever. While I have no problem with law enforcement solving cold crimes or serious crimes, I do have a huge problem with the government trampling over more of my civil rights in the process. I take even more issue with well-educated legal scholars trying to pull the wool over the general public's eyes by trying to persuade the American people this is simply a helpful tool for identification purposes. No, that is downright scandalous. If you are going to trample all over my rights, I would at least respect your effort if you said, "We are going to do this because we can. We don't care what rights we have to eradicate in the process to do so, so long as we get what we want."
I still wouldn't agree with it, but at least it would be better than feeling like we are being victimized again, only this time by the very government we look to for protection. Surely our Founding Fathers would be deeply disappointed with the direction our country is headed? Soon enough Big Brother will control our every thought, desire, and action. It may have been just a novel by George Orwell, but maybe not. Maybe Orwell was really just ahead of his time and could foresee the tragic transformation our country will one day fully undertake. I certainly hope not ... but this is clearly a first step in that direction.
Jeff Greco of Greco & Associates is a former prosecutor and presently a defense attorney in Texas.
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