Why Justice Stevens Is Dead Wrong About DNA Searches

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John Paul Stevens receives a 2012 Medal of Freedom from President Obama. (Reuters)

From The Atlantic:

John Paul Stevens, the avuncular former justice of the U.S. Supreme Court, gave an interesting speech yesterday at the American Constitution Society Convention in Washington, D.C. Not only did he offer some provocative analysis on the history of the 14th Amendment, as timely a topic as ever with the likely demise of the Voting Rights Act on the near horizon, but he also weighed in on Maryland v. King, the Court’s recent decision to permit states to swab DNA from suspects as as a “reasonable booking procedure” under the Fourth Amendment.

The speech isn’t long and you can read it for yourself to come to your own conclusions about where Stevens comes down on the intersection of old doctrine and new technology. But there was one sentence, near the end of the presentation, that struck me. Stevens said:

It seems to me that taking a DNA sample — or a fingerprint sample — involves a far lesser intrusion on an ordinary person’s privacy than a search that allows an officer to rummage through private papers.

Now, I am ordinarily a big fan of Justice Stevens. But this strikes me as crazy talk. The DNA search takes a moment, it is true, and in that sense (and perhaps that sense alone) it is less intrusive than a search through someone’s purse or briefcase. But the results of a DNA test are then compiled and held by the government, presumably forever, while the “results” of the bag search are quickly forgotten if they reveal no evidence of criminal conduct. It’s not necessarily the fleeting act of the search itself that offends Fourth Amendment protections it is also what is then done with the results of that search.

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