In the latest round of the ever-evolving tug-of-war between safety and freedom, safety has triumphed.
This week, the U.S. Supreme Court overturned an April 2012 decision of the Maryland Court of Appeals that found warrantless collection of DNA on arrest unconstitutional in nearly every possible circumstance (the state court had said Maryland’s DNA Collection Act would pass constitutional muster only if collecting a genetic sample is the sole way police can determine a detainee’s identity).
Police in Maryland may now swab the inside of arrestees’ cheeks — a process the high court likened to fingerprinting or photographing a detainee.
In his majority opinion, Justice Anthony Kennedy noted that the decision is not as broad as the four dissenting justices believe, since DNA can only be taken from those suspected of “serious” crimes.
There’s little argument that police should be given the necessary tools to catch the bad guys, but this decision represents yet another step in a slow erosion of what were once ironclad constitutional rights. In general, society affords certain concessions in the name of safety (does anyone even complain anymore about taking your shoes off to get through airport security?), but those concessions are not without limits.
In this case, the majority determined that DNA collection was a routine procedure, and as such does not violate the “right of the people to be secure in their persons, ¬houses, papers, and effects, against unreasonable searches and seizures.”
In his dissent, Justice Antonin Scalia indicated his displeasure: “The court has cast aside a bedrock rule of our Fourth Amendment law: that the government may not search its citizens for evidence of crime unless there is a reasonable cause to believe that such evidence will be found.”
Certainly, all members of a functioning society give up some rights in the interest of the greater good (the example from childhood is something about not having the right to yell “fire” in a crowded movie theater).
For Maryland, however, at least with the largest police force in the state (the Maryland State Police), the Supreme Court has granted much-expanded authority to an institution that doesn’t have the best track record of protecting residents’ civil rights.
Take, for example, the agency’s role in spying on activists during Robert L. Ehrlich’s administration in 2005 and 2006. According to published reports, in a wide-reaching effort, troopers inappropriately targeted anti-death penalty activists, members of People for the Ethical Treatment of Animals and other groups.
A decade earlier, the state police settled the infamous “driving while black” lawsuit with a public defender (now a federal judge and nominee to the influential U.S. Court of Appeals for the District of Columbia Circuit) for an inappropriate traffic stop.
After the stop, the lawyer began to monitor state police data and discovered that 70 to 75 percent of those searched on Interstate 95 were black, even though blacks made up only 17 percent of drivers traveling there. He filed another suit — this time a class action on behalf of the National Association for the Advancement of Colored People and all minority motorists targeted for stops.
After several years of negotiation, a second settlement was reached in 2003 requiring enhanced trooper training, a new process to handle racial profiling complaints and more oversight of the agency’s handling of it.
In a state where police still have quite a ways to go before earning back the public’s trust, granting such power opens the door for more abuse.