On Monday, the U.S. Supreme Court chipped away at your personal liberties. Most people won't pay attention to it, and law enforcement will applaud it. But make no mistake, the court once again shrunk the rights embodied in the Fourth Amendment.
The Fourth Amendment was intended to guarantee citizens constitutional protection from unreasonable searches and seizures. The government does not have the right to conduct a general search when they do not have a specific probable cause that an individual committed a specific crime. The amendment also says that citizens "shall not be violated." Ratification of the Fourth Amendment arose from fears by early Americans that government could intrude into their lives as British troops had done when they searched someone simply because they wanted to.
The court decided on Monday that an individual accused of a crime could be compelled to give a DNA sample through a cheek swab. Again, this would be an individual under arrest, not one actually convicted of a crime. The court sided with the police who argued that taking a DNA sample aids them in identifying the individual in custody. But such identification already occurs in other ways. A person accused of a crime is photographed and fingerprinted. It doesn't serve that objective.
What the DNA sample can do is allow the police to search a database to attempt to match the person's DNA with previous crimes. In other words, the individual citizen's body is intruded by the police so they can search for evidence in other cases. Justice Antonin Scalia, who dissented from the court's opinion, correctly calls this a general, suspicionless search. That means the police are using a DNA sample to fish for evidence without having probable cause to do so. That is exactly what the Fourth Amendment is intended to stop.
Proponents of DNA swabs will contend there is no harm in such general, suspicionless searches if they result in solving crimes. Crime fighting is a worthy function for government. However, it does not trump the Bill of Rights. If crime fighting is our chief goal as a society, then we should remove other barriers to that task, such as the Fifth, Sixth, Seventh and Eighth Amendments. These all have the same purpose — to preserve individual rights, particularly when we are accused of a crime.
Why is there so much emphasis in the Bill of Rights on the rights of those accused of a crime? It is in those circumstances that the citizen is most vulnerable. At that point, the individual needs protection from a government that may be prone to assume guilt rather than innocence and to force the person to confess to a crime rather than go to the trouble of proving their guilt.
That is why this decision jeopardizes citizens' rights. And it is part of a pattern. Last year, the court ruled that a person arrested for a crime could be strip-searched by police, even for a minor offense. Again, this isn't a convicted felon; it is someone merely accused.
What does this mean for you and me? If we are accused by the government of a crime, we can be strip searched and subjected to a general, suspicionless search without a warrant and without probable cause. Even if our arrest is a mistake, that doesn't matter. It can still happen.
The majority on the court said that "an intrusion is negligible" into the body, and therefore not really harmful to personal liberty. Coupled with the strip search decision, clearly each of these small intrusions began to add up to a major erosion of the individual's rights when they are accused of a crime. Scalia pointed out, "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."
The court's decision allows states to conduct these searches; it does not require them. Those within the Utah legislature who love personal liberty, and there should be at least a few, should work to overturn Utah's law allowing such a practice. We need to preserve our rights as citizens.
Richard Davis is a professor of political science at Brigham Young University. His opinions do not necessarily reflect those of BYU. Email: Richard_Davis@byu.edu
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