Supreme Court sides with police in DNA swabbing of suspects

Published On: Jun 04 2013 05:35:00 PM HST

The U.S. Supreme Court has ruled police can take a genetic sample after someone has been arrested.

HONOLULU -

A controversial 5-4 decision Monday by the U.S. Supreme Court is being hailed as a victory for law enforcement, but a defeat for the protection of civil liberties.    

Justices ruled police in Maryland acted properly when they obtained a DNA sample from 26-year-old Alonzo King in 2009 after his arrest for second degree assault.  The genetic sample was run through a database, and led to King's conviction for rape in an attack that took place six years earlier.   

Local defense attorneys say the ruling turns the Fourth Amendment of the U.S. Constitution on its head, which prevents police from engaging in unreasonable searches.

"This decision sides with the guardians of the police state versus the defenders of individual liberties," said attorney Todd Eddins, who has represented thousands of criminal defendants.

"It's probably one of the most significant steps into the invasion of the U.S. citizens' privacy that's been made in the last 20 years," added attorney Don Wilkerson, who has nearly 20 years of experience in criminal defense litigation.  

According to Hawaii state law, county police departments can only obtain a DNA sample from someone placed under arrest if that person has a prior felony conviction.

"We check to see if they have a felony conviction.  If they do, then we check to see if they have been swabbed before, and if not, then they are swabbed," Honolulu police spokeswoman Teresa Bell told KITV4.  

Eddins and Wilkerson are split on whether the Supreme Court ruling requires Hawaii lawmakers to amend the law that covers the genetic sampling of arrestees. In its opinion, the high court said police can obtain DNA samples for a "serious offense."

"They didn't define serious and it could be defined as a felony," said Wilkerson. "But I'm in court almost every day, and I'm in court hearing prosecutors argue to the judge that a DUI is a serious arrest."

However, Eddins believes the clear reading of the Hawaii law dictates lawmakers would have to amend it before police could begin taking DNA samples from anyone who's placed under arrest.

"I see many states, not necessarily this state, but many states now enacting laws saying that anybody who's arrested for any crime needs to provide DNA evidence, and that is Orwellian," said Eddins.

Sen. Will Espero, chairman of the Public Safety Committee for the past seven years, agrees with Eddins, saying the Hawaii law would likely have to be changed. Espero believes the issue could come up during the next legislative session in January.

"People should certainly pay attention because this is about government and the oversight government will have upon its citizens," said Espero. "The citizens have to voice their opinion and let us know. Do you want it this way, or that way?"

In the majority opinion, Justice Anthony Kennedy likened DNA sampling to fingerprinting, or the taking of a mug shot. He also argued the taking of genetic material is non-intrusive, and therefore, not unreasonable.

"The fact than an intrusion is negligible is of cen­tral relevance to determining reasonableness, although it is still a search as the law defines that term," wrote Kennedy.  

The 5-4 decision made for some interesting bedfellows on the high court. Conservative justices Clarence Thomas and Antonin Scalia split their votes, with Scalia authoring the dissenting opinion.

"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," wrote Scalia. "I therefore dissent, and hope that today's incursion upon the Fourth Amendment, like an earlier one, will some day be repudiated."

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