The Supreme Court made a controversial 5-4 decision Monday that said police can continue to take DNA from people they arrest without getting a warrant, comparing the procedure to fingerprinting. The Court's conservative leader Justice Antonin Scalia came out forcefully in his dissent, writing in the minority joined by three liberal justices, and in a rare 11-minute oral statement, Reuters reports:
Scalia, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, agreed the search was unreasonable because the swab was taken when King was not suspected of the earlier offense. Scalia said that violated a core Fourth Amendment principle that police may not conduct a search unless there are reasons to believe that evidence will be found.
While Scalia's stance may not have been obvious, given his conservative reputation and usual latitude for police searches, it is a piece of a lesser known Scalia pattern in some areas of criminal law. He has, for example, joined with liberals for firm rules on the Constitution's guarantee that defendants be able to confront their accusers, even in situations involving sensitive crime victims.
In those cases and the DNA dispute, Scalia returns to his view that the Constitution should be interpreted as it was understood when it was written in the 18th century. He declared on Monday that Americans despised the British use of "general warrants," those not grounded in some particular offense. He said the majority turned away from the roots of the Fourth Amendment by permitting arrestees to be subjected to "suspicionless searches" primarily to solve unrelated crimes.
U.S. Senator Ted Cruz of Texas, the former Texas Solicitor General and clerk for Justice William Rehnquist, blasted the court's decision, telling The Daily Caller that the decision is a "significant step towards government as Big Brother." On 'Real News' Tuesday the panel went into a spirited debate if there is a legal consistency between taking DNA and fingerprints, watch a clip from the segment below: