Come again?: The Toledo, Ohio, Block Bugler editorializes that since the Framers could not have envisioned DNA testing, swabbing the mouth of those arrested for their DNA is not a Fourth Amendment violation. Neither could the Framers have envisioned high-speed printing presses. Does this mean The Bugler has no First Amendment right to publish? [Bolding in original.]While I realize there's a vigorous debate surrounding Maryland v King, the braintrust does itself no favors by misrepresenting both what the Supreme Court said and then what the P-G said about it.
First, let's go back to what the braintrust said about the decision:
The Supreme Court's Monday decision affirming the right of police, without probable cause and without a warrant, to take DNA samples from those they arrest (but supposedly only for serious crimes) is chilling.[Emphasis added.]Now let's take a look at the "Held" section of the decision:
When officers make an arrest supported by probable cause to hold for a serious offense and bring the suspect to the station to be detained in custody, 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. [Emphasis added.]Notice anything? I even bolded/italicized the important words for any braintrust visitors that may be visiting. If there's any nuances of difference between an arrest supported by probably cause and a search done after that arrest though unrelated to it, they should have explained them. As it is, the braintrust gets it wrong by omitting such details.
Yea, I know - what a surprise!!
The issue here, and it's pointed out in the P-G editorial, is:
There's no argument that a DNA sample taken from someone arrested by the police is a search of sorts, but the key word in the amendment is "unreasonable." On reasonableness grounds, the majority had the best of this argument. The decision to restore the conviction of a man arrested on a different charge but identified and subsequently tried as a rapist because of a DNA test was the right one.[Emphasis added.]But let's get on to the main point here: go back and read what the braintrust's take on the P-G editorial
Now read what the P-G actually wrote:
DNA, of course, can be a window into family histories and genetic dispositions, which might be alarming if the Maryland law did not specifically limit testing to identification. Only those charged with serious crimes are tested. Fourth Amendment purists might be reassured but Justice Scalia was not, basing his analysis as always on what the tyranny-fearing Founding Fathers might have thought.Seems to me, that by the braintrust's own argument they'd have to reject the use of fingerprints by police as well. I mean, since the founders could not have envisioned fingerprinting either....
The trouble with this is that DNA testing could not be dreamed of in their day -- indeed, fingerprinting was at least a century away from being used. Besides, the purist approach sells the Founding Fathers short. They were not against scientific progress and were resolutely practical men. If they had to choose between a hypothetical threat and a reasonably applied test that beyond doubt can convict the guilty and exonerate the innocent, they might have decided as the Supreme Court did.
But that's a question for another day.