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To Swab Or Not To Swab

By The Reverend Published: June 5, 2013

The Supreme Court ruled in a 5-4 decision Monday that police may take a DNA cheek swab from people arrested for crimes without first getting a warrant to do so.

Controversial? Probably.....but the interesting part of yesterday's ruling was this....

Antonin Scalia, joined three of his liberal colleagues in a scathing dissent that warns the court's decision paves the way for the creation of an invasive police state.

The AB Journal editiorialists agree with Scalia. The Court minority asserted that a DNA cheek swab performed on an arrestee is an unlawful search and seizure of the person.

The majority opinion, written by Anthony Kennedy, boils down to this....

“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.”

For those disagreeing with the majority opinion, the obvious question is: When police fingerprint and photograph a person upon arrest....are those two actions a violation of search and seizure laws? DNA swabbing, at least it seems to me, is the modern equivalent of fingerprint identification.

If, as the Court ruled, DNA swabs are only done on suspects arrested in cases involving violent crime......then those opposed to DNA swabbing, again it seems to me, are taking the side of criminals who have committed violent crimes in the past but have not been arrested for those crimes yet.

In the Maryland case upon which the ruling was determined, a man was DNA swabbed upon arrest for a serious crime. The DNA linked him to a previously never-solved rape case.....for which he then was also charged. The man's attorneys argued that DNA swab testing was a violation of his client's 4th amendment rights against government search and seizure without judicial warrant. A majority of the Supremes disagreed.

To be quite candid, or perhaps cynical, about this alleged argument...I don't buy Scalia's tantrum of dissent here. I would argue that the creation of an invasive police state which regularly violates the 4th amendment......has already been accomplished.

Example: In the 2003 footnote, Bush lawyer John Yoo writes: "Our office recently concluded that the fourth amendment had no application to domestic military operations."

Before the New York Times finally blew the whistle on the Bush administration's wholesale violation of the 4th amendment prohibition against unreasonable searches and seizures, Bush had negotiated with tele-communication giants, not judges, to blanket eavesdrop on calls coming into the U.S....a blatant infringement of 4th amendment rights. Bush admitted his 4th shredding and worked to protect his co-conspirators in the tele-communications industry.

"Companies that may have helped us save lives should be thanked for their patriotic service," Bush said, "not subjected to billion-dollar lawsuits that will make them less willing to help in the future."

By the way, Senator Barack Obama, voted in favor of amnesty for the telcos who secretly worked with Bushies to violate the 4th amendment.

Not sure about DNA swabs.....but I'm relatively certain that what Bush ordered and what telcos did for Bush in total secrecy was a prime example of how an invasive police state operates. In addition to warrantless wiretaps, the Bushies also circumvented the 4th amendment requirement of judicial warrants by the use of "national security letters" (NSL's).

National security letters allow FBI investigators to obtain personal records such as Internet, phone and financial information without going first to a judge for a warrant.

For a refresher, here's the 4th verbatim.......

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

I think it's clear that NSL's are a direct violation of the 4th amendment, both in word and in intent.....yet the FBI uses them regularly today. Warrantless wiretapping of Americans, warrantless NSL's....and much more....have already turned America into an invasive police state in the last decade or so. DNA swabbing of violent criminal offenders seems trivial in comparison.

And that, to me, is where the nitpicking by the ACLU, left bloggers, Antonin Scalia and many, many others over yesterday's DNA swab ruling is out of proportion. DNA swabs are no different from fingerprinting or mug shots.

Finally, after 9-11 when the U.S. police state was injected with terror steroids, those on the left who objected were told..."If you're not doing anything wrong, you have nothing to worry about." Would that also be an appropriate response to those who disagree now over whether a person arrested for a serious crime is protected by the 4th amendment from police taking a DNA cheek swab? If not, why not?



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