Texas Republican Sen. Ted Cruz issued a strong rebuke of Monday’s 5-4 Supreme Court decision upholding a Maryland law that allows law enforcement to collect DNA samples from arrested suspects without a warrant.
“Today’s unfortunate U.S. Supreme Court ruling in Maryland v. King, by a vote of 5-4, expands government power, invades our liberty, and undermines our constitutional rights,” Cruz said in a Monday evening statement. “The Court held that the police can forcibly take DNA samples from people who have been arrested — but have not been tried or convicted — of a serious offense. So now the government can capture, without a search warrant, the most personal information about an individual, and use it to search vast databases for unrelated offenses.”
Justice Anthony Kennedy wrote the majority opinion calling DNA swabbing a “legitimate police booking procedure that is reasonable under the Fourth Amendment” and comparable to fingerprinting and photographing.
Kennedy was joined by Chief Justice John Roberts and Justices Clarence Thomas, Stephen Breyer and Samuel Alito.
An unusual coalition of Justices Antonin Scalia, Ruth Bader Ginsburg, Elena Kagan and Sonia Sotomayor voted for a broader interpretation of the Fourth Amendment’s protection against unreasonable search and seizure. Scalia, a noted conservative, wrote the dissent in which the liberals Ginsburg, Kagan and Sotomayor.
“As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason,” Scalia wrote in his dissent and Cruz quoted in his statement.
Cruz, who clerked for Justice William Rehnquist, noted that all 50 states already collect the DNA of convicted felons, and that the “intrusion of liberty will matter only for those not convicted.”
“All of us should be alarmed by this significant step towards government as Big Brother. The excessive concentration of power in government is always inimical to liberty, and a national database of our DNA cannot be reconciled with the Fourth Amendment,” Cruz continued.
“Accumulating DNA from arrestees—without warrant or probable cause to seize the DNA—is not designed to solve the crime for which the person has (rightly or wrongly) been arrested. Rather, it’s to test the DNA against a national database to potentially implicate them in other unsolved crimes,” he added. “But the Constitution requires particularized suspicion of a specific crime; indeed, the Fourth Amendment was adopted to prohibit the British practice of ‘general warrants’ targeting individuals absent specific evidence of wrongdoing.”
The federal government and at least 26 states allow DNA collection for arrestees, Bloomberg reported.
Cruz said the government should be required to obtain a search warrant if there is a legitimate cause for seizing DNA, calling this check on government’s power “what our Framers intended.”
“Law enforcement is a paramount function of government. But we cannot allow that government function to run roughshod over the Bill of Rights,” he said. “And, as recent events involving the IRS have demonstrated, unchecked government power — and intrusive personal databases maintained on the citizenry — poses real risks to our liberty.”
Monday’s decision reinstated a the rape conviction of Alonzo Jay King Jr. who was arrested on assault charges in 2009 and connected via DNA to the 2003 rape for which he was convicted. The Maryland Court of Appeals later ruled that the police needed a warrant or suspicion to take his DNA and threw out the conviction, resulting in the state, with the help of the federal government, taking the case to the Supreme Court, according to USA Today.