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Allowing DNA collections from those arrested on probable cause, Supreme Court further erodes 4th Amendment

Jun 03, 2013 Allowing DNA collections from those arrested on probable cause, Supreme Court further erodes 4th Amendment

I never wanted Justice Scalia on the Supreme Court. I still do not.

I had no strong feelings against Justice Kennedy’s joining the high court, in the realpolitik of Reagan appointees, particularly after my delight at Robert Bork’s getting Borked, and puzzlement at how Reagans vetters missed Bork’s successor nominee Douglas Ginsburg’s — who clerked for late Justice Thurgood Marshall — later-admitted marijuana smoking even from when he was a Harvard law school professor. (Of course, Barack Obama got elected after having admitted in his autobiography beforehand to having snorted "blow"/cocaine, and re-elected after revelations about copping tokes and sniffing in remaining marijuana smoke, but his constituency is quite different from Reagan’s.)

Justice Scalia nevertheless votes on the side that I cheer for from time to time, and Justice Kennedy, as the Court’s swing vote for so many years, some days will delight me and other days exasperate me.

Today, Justice Kennedy exasperated me, and Justice Scalia delighted me, when Justice Kennedy penned the Court’s 5-4 opinion allowing warrantless DNA collection from arrestees, and Justice Scalia led the dissent in insisting that such DNA collections require individualized suspicion to justify the search. Maryland v. King, ___ U.S. ___ (June 3, 2013). Justice Scalia underlines that fingerprinting and photographing arrestees is leglitimate to assure no mistaken identity after the arrestee hits the street and returns to court, whereas DNA collection helps solve crimes, but is redundant identification method that takes substantially longer than fingerprints to connect to a particular person.

King reverses the 5-2 Maryland Court of Appeals opinion invalidating such suspicionless DNA seizures. Arguing for King was Williams & Connolly partner Kannon K. Shanmugam, who graduated from law school fifteen years ago and has argued thirteen Supreme Court cases.

Maryland gubernatorial hopeful and current Maryland attorney general Doug Gansler today called King “a resounding victory for both law enforcement and civil libertarians.” Perhaps that will give pause to those who were considering voting for him.

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