On DNA, Scalia had it exactly right

Published: Monday, June 17, 2013, 12:01 a.m.

The words "Antonin Scalia was right" do not flow easily for me. But the court's most uncompromising conservative, who wrote a withering dissent, was correct when he issued a dire-sounding warning from the bench: "Make no mistake about it: Because of today's decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason."

The case, involving a Maryland law that mandates DNA collection, scrambled the court's ideological seating chart. Scalia, of all people, sided with the liberals; while Justice Stephen Breyer, a liberal, joined the conservative majority.

Maryland v. King was an appropriate test case. A man named Alonzo King was arrested in 2009 on an assault charge. Police in Wicomico County took a DNA sample by swabbing the inside of his cheek -- without obtaining a search warrant -- as permitted under Maryland law. Months later, King's DNA profile was matched with evidence from a 2003 rape case. King was subsequently tried and convicted of the rape.

It's impossible not to applaud the result: A rapist who otherwise would have escaped justice was made to pay for his heinous crime. But the way this result was obtained, Scalia argued, ignores the Constitution.

The Fourth Amendment prohibits most warrantless searches without reasonable suspicion, and police had no reason to suspect that King had committed the rape -- or that he had committed any crime except the assault for which he had been arrested.

Writing for the majority, Justice Anthony Kennedy accepted the state's argument that the DNA sample was actually a method of identification -- like a mug shot or a set of fingerprints -- and not an unreasonable search. With all due respect, this is a bunch of hooey. As Scalia put it, Kennedy's argument "taxes the credulity of the credulous."

Before the DNA test was even performed, police knew perfectly well who King was. They had his name, address, date of birth, height, weight, eye color, you name it. No question had been raised about his identity.

Months elapsed before King's DNA was entered into a national database. If identity were the purpose for collecting the sample, you'd think it would be compared with the DNA of people who looked like King or had a similar name. Instead, it was compared with DNA samples collected at the scenes of unsolved crimes.

In other words, the obvious purpose of collecting the DNA sample was to solve cold cases. This is an admirable goal. But there's that pesky Fourth Amendment.

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On DNA, Scalia had it exactly right