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Editorial: Court ruling puts Fourth Amendment under assault

The Fourth Amendment to the U.S. Constitution was significantly weakened by a recent Supreme Court decision. The court, in a 5-4 ruling, allows police to collect people’s DNA after an arrest.

Without just cause. Without a warrant.

The court ruled that taking a DNA swab from inside an arrested person’s cheek does not constitute unreasonable search and seizure. It further ruled that use of genetic material allows authorities to identify the person arrested beyond the usual fingerprinting.

We disagree with the ruling.

The Fourth Amendment is our nation’s strongest protection against overzealous police and federal agencies. This is what the amendment says:

“The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The Bill of Rights, the first 10 amendments to the Constitution, provides limitations on government actions that would threaten our freedoms. The amendments protect the natural rights of liberty and property. They guarantee a number of personal freedoms, limit the government’s power in judicial and other proceedings and reserve some powers to the states and the public.

Here is an example of an unreasonable search and seizure: somebody sticking a cotton swab in your mouth to gather a DNA sample without just cause or even a warrant.

The court’s majority ruled that by obtaining DNA samples, law enforcement can operate more efficiently. But it is wrong to value what’s convenient for the government over privacy.

The ruling in itself will not bring DNA sample-taking to Massachusetts.

State Attorney General Martha Coakley has urged the state Legislature to pass a law enabling the taking of samples from people arrested for serious crimes. Maryland and 27 other states already mandate the taking of DNA samples in such cases. Bills are now before the Massachusetts Joint Committee on the Judiciary. If one goes through, samples taken would enter the state’s DNA database, which could be accessed globally.

We agree with Justice Antonin Scalia, writing for the four dissenting justices (Sonia Sotomayor, Ruth Bader Ginsberg and Elena Kagan): “The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the heart of the Fourth Amendment.”

Make no mistake about it: Because of the decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason.

This will solve some extra crimes, to be sure. But so would taking your children’s DNA when they start public school.

We urge readers to help slow or stop this assault on privacy. Write your state representative and let him or her know allowing such DNA swabs goes against the Fourth Amendment — and that protection must not be allowed to erode.

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