In Maryland v. King, No. 12-207 (June 3, 2013), a sharply divided Supreme Court held by a five-to-four vote that a DNA sample could be taken from a suspect at the time of arrest without a warrant. In King, a cheek swab was taken without a warrant from a man arrested for first- and second-degree assault. In turn, that sample was matched months later to another sample recovered from an unrelated six-year-old rape, for which King was then charged.
In the majority opinion, Justice Anthony Kennedy reasoned that no warrant was required for the DNA sample to be taken because while taking the cheek swab was a “search” within the meaning of the Fourth Amendment, it was not an unreasonable one. Instead, in the opinion of the majority, taking the sample was a legitimate booking procedure to identify the suspect comparable to fingerprinting or photographing him. Moreover, the cheek swabbing was not significantly more intrusive on the suspect’s privacy than fingerprinting was, and the DNA sample yielded information which was more accurate for identification than fingerprinting would be.
In his dissenting opinion for four members of the court, Justice Antonin Scalia employed his variant of originalism in concluding that the DNA sampling required a warrant under the Fourth Amendment. In doing so, he first sought to rebut the contention that the sample was taken to identify the defendant.
Scalia initially noted that the Maryland Act authorizing the taking of the DNA sample did not list the identification of the defendant as a purpose for taking a sample, and made it a criminal offense to use the sample for any purpose not specified in the Act. Second, he pointed out that the DNA sample taken in the case was not tested by the State Police Laboratory until three months after the suspect was arrested. Finally, the only purpose for which the sample was utilized was to link it to the sample from the six-year-old rape case.
Justice Scalia’s dissenting opinion next distinguished the DNA sampling procedure from photographing and fingerprinting the suspect. Photography does not involve a physical intrusion, and fingerprinting without a warrant has never been validated by the Supreme Court in any event. Indeed, given the fingerprinting of the suspect, Justice Scalia questioned the need for “a separate, wholly redundant DNA confirmation of the same information.”
In the most significant parts of his dissenting opinion, Justice Scalia reviewed the history of the ratification debates on the Bill of Rights in order to determine whether the DNA sampling at issue fell within the concerns of the Founders in enacting the Fourth Amendment. He concluded that, with minor exceptions previously set forth in Supreme Court decisions, history taught that “individualized suspicion” was required to authorize a search as reasonable. Here, by contrast, the DNA sampling protocol set up a “genetic panopticon,” referring to the philosopher Jeremy Bentham’s design for a prison in which a watchman was enabled to observe all of the inmates without being seen. Justice Scalia concluded that “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.”
In a final portion of his dissenting opinion, Justice Scalia pointed out that while the majority opinion contended that the DNA samples would be limited to “serious offenses,” it would be hard for lower courts to limit the use of such samples under such a standard. Indeed, “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.” Moreover, if DNA sampling can be used for the identification of a criminal suspect, why can it not be used by the TSA to identify airline passengers, by states to identify persons who apply for drivers’ licenses, or by schools to identify students?
While Justice Scalia’s opinion fell one vote short of carrying the day, it nevertheless demonstrates an important lesson for constitutional interpretation. Thus, some law professors and other liberal commentators often criticize the various approaches to constitutional interpretation referred to generically as “originalism” as constituting only a convenient cover to reach a conservative result. Both Maryland v. King and other opinions written by Justice Scalia on the Fourth Amendment, as well as on the Sixth Amendment Confrontation Clause, should demonstrate the deficiencies in the mischaracterization of that approach as inherently conservative. Indeed, the three justices who joined in his opinion in King — Justices Ginsburg, Sotomayor, and Kagan — are members of the court’s liberal wing. Originalism should therefore be judged on its merits, rather than characterized as a ploy for conservative results.