If You Can't Give Me Liberty, at Least Take This Swab Out of My Mouth!

The Supreme Court okays unwarranted DNA swabs, but Scalia says Patrick Henry would disapprove.
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Patrick Henry at the Virginia Assembly (Wikimedia Commons)

In point of historical fact, the great Patrick Henry was never arrested for any offense.

So when Justice Antonin Scalia thundered on Monday, "I would not want to have been the royal officer charged with swabbing the cheek of Patrick Henry," the analogy to the case at bar was less than precise.

Scalia's implied libel against the revered revolutionary came as the Supreme Court ruled on Maryland v. King. In the case actually before the court, the arrestee was a Maryland rapist, whose cheek was swabbed by police after they arrested him on a charge of assault for threatening a group of people with a shotgun. Subsequent testing of the sample linked King to an unsolved rape committed six years before. He was subsequently convicted on both charges.

The issue in King was whether the DNA swab, and the use of the DNA to solve a crime unrelated to the first arrest, violated the Fourth Amendment's bar on "unreasonable searches and seizures." Five Justices held that it did not. Under existing caselaw, the question is a close one. That's probably why the Court's 5-4 lineup did not break down on ideological lines. Joining the majority was Justice Stephen Breyer, a moderate-liberal, and Clarence Thomas, the hardest of the hard right; Scalia's dissent was written for himself and Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor.

It's also probably why the majority opinion, by Justice Anthony Kennedy, could justify its result only by engaging in elaborate word play. Previous Fourth Amendment cases have barred government from searching citizens without some basis of suspicion that they have committed a specific crime. In King's case, the DNA was not sought to prove that he was the man with the shotgun; it was checked against a national database of unidentified DNA profiles generated from unsolved crimes all over the country.

But the majority upheld the search by insisting that its purpose was no different from that of fingerprinting and photographing arrestees -- "the need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody."

In other words, says Kennedy's opinion, the police only take DNA to determine who the suspect is. And part of that process of identification is finding out what other crimes that person may have also committed -- "identifying" him as the potential perpetrator of other offenses. That "identification" may be relevant to decisions about whether to free the suspect on bail. If the "identification" leads to a new prosecution, well, that's how the swab bobs.

This is a stretch of the word "identification." The majority is correct that fingerprints and photographs are already used for both purposes. There is an important difference, though: fingerprints, as Scalia points out, do not involve "an intrusion into the body." Even though, as the majority says repeatedly, a swab of the mouth is a "negligible" intrusion, constitutionally it's an important threshold.

The Court's opinion carefully limits itself to an analogue of Maryland's statute, which is a model of careful drafting. Only those suspected of "serious crimes" may be swabbed. The profiles must be discarded if the suspect is acquitted of the crime of arrest, or if charges are dismissed. And in any case, the DNA profiles are stored as numbers that contain no medical information.

Scalia rejects the soothing language:

At the end of the day, logic will out. When there comes before us the taking of DNA from an arrestee for a traffic violation, the Court will predictably (and quite rightly) say, "We can find no significant difference between this case and King." Make no mistake about it: As an entirely predictable consequence of today's decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.

Scalia has, I think, slightly the better of the legal argument. But his outraged tone is difficult to bear, given that, last term, the Court, in another Kennedy opinion, held that any person arrested for any reason may be subjected to a strip- and body-cavity search before being processed into jail. The crucial fifth vote in that case came from . . . Antonin Scalia.

I frankly presume that the late, illustrious Colonel Henry would have objected to the latter procedure even more strenuously than to an oral DNA swab.

At any rate, as the British say, in Henry's case the question did not arise, "although royal authorities certainly would have arrested him if they had opportunity," Thomas Kidd, author of Patrick Henry: First Among Patriots, pointed out in an email Monday. Kidd noted that Henry was a great supporter of constitutional protections against "unreasonable" searches and seizures.

On the other hand, he was a dedicated opponent of the Constitution, and did his best to defeat it.

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Garrett Epps, a former reporter for The Washington Post, is a novelist and legal scholar. He teaches courses in constitutional law and creative writing for law students at the University of Baltimore and lives in Washington, D.C. His new book is American Epic: Reading the U.S. Constitution.

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