Why Justice Stevens Is Dead Wrong About DNA Searches

Is it really less intrusive to collect someone's vital data for eternity than it is to rummage through his papers briefly?
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John Paul Stevens receives a 2012 Medal of Freedom from President Obama. (Reuters)

John Paul Stevens, the avuncular former justice of the U.S. Supreme Court, gave an interesting speech yesterday at the American Constitution Society Convention in Washington, D.C. Not only did he offer some provocative analysis on the history of the 14th Amendment, as timely a topic as ever with the likely demise of the Voting Rights Act on the near horizon, but he also weighed in on Maryland v. King, the Court's recent decision to permit states to swab DNA from suspects as as a "reasonable booking procedure" under the Fourth Amendment.

The speech isn't long and you can read it for yourself to come to your own conclusions about where Stevens comes down on the intersection of old doctrine and new technology. But there was one sentence, near the end of the presentation, that struck me. Stevens said:

It seems to me that taking a DNA sample -- or a fingerprint sample -- involves a far lesser intrusion on an ordinary person's privacy than a search that allows an officer to rummage through private papers.

Now, I am ordinarily a big fan of Justice Stevens. But this strikes me as crazy talk. The DNA search takes a moment, it is true, and in that sense (and perhaps that sense alone) it is less intrusive than a search through someone's purse or briefcase. But the results of a DNA test are then compiled and held by the government, presumably forever, while the "results" of the bag search are quickly forgotten if they reveal no evidence of criminal conduct. It's not necessarily the fleeting act of the search itself that offends Fourth Amendment protections it is also what is then done with the results of that search.

So if Stevens wanted to make his two scenarios fairly compatible -- if he wanted to compare apples to apples -- he would have to add the following facts to the "rummaging" portion of his hypothetical:

The private papers which are rummaged through by a police officer represent the unique and vital identifying characteristics of the person to whom they belong. They can tell observers exactly who he is -- what gender, what race, etc. As part of the "rummaging," the police take photographs of each of the documents that make up the "private papers" and then transfer all of the contents of each document-- words, photographs, everything-- into a secret government database, which makes all of the information contained in those papers immediately available to every law enforcement agency in the nation.

Even though the papers then are transferred back to the person to whom they belong their contents, having been copied and recorded, are "seized" forever. The copies, in these circumstances, are exactly as valuable and as telling as the originals. Meanwhile, those papers that were searched can never be destroyed and the information contained in them can never be retracted or disavowed.

It's obviously debatable, as a matter of law and a matter of philosophy, whether the Fourth Amendment permits DNA testing in the circumstances presented in the King case (five justices ruled that it did, four ruled that it did not). What is not debatable, it seems to me, is the idea that compiling DNA is the same as searching through someone's purse. The former, a quick swab, takes a second and lasts a lifetime. The latter lasts a few minutes and then is done. I don't for a moment believe that Stevens is a Luddite when it comes to what DNA testing entails. Which makes his poor comparison all the more baffling to me.

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Andrew Cohen is a contributing editor at The Atlantic. He is a legal analyst for 60 Minutes and CBS Radio News, and a fellow at the Brennan Center for Justice.

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