Vail Daily column: Did the Supreme Court put its foot in your mouth?
June 12, 2013
I seldom — almost never, in fact — offer my opinion in this column. I take a certain pride in that. My office in these pages, and my hope, is to teach, stand back from the fray and leave you guessing which way — if any — I tilt on a particular subject. If you don't know which side I come down on, good for me; I have done my job.
This column, admittedly, slants a little in a particular direction. And so this is a "heads up." I'm a little worked up and so, what I hope is my usual neutrality, may bend a little towards opinion. Hopefully, what follows remains didactic. But if you see a little fire, hey, I told you there was smoke.
Last week, by a slim majority, the United States Supreme Court may have put its foot — or at least its nose — in your mouth. Writing for the majority, Justice Anthony Kennedy, who among the justices is generally considered what a swing gate is to a picket fence, wrote that comparing fingerprint and other "technical" evidence, "Law enforcement agencies routinely have used scientific advancements in their standard procedures for the identification of arrestees."
But what the court endorsed is — at least to some minds — more than just a little scary. Can you spell 1984? With apparent breeziness (excepting Justice Antonin Scalia's unrepentant hissy fit in his opposition), the court stamped its approval on what has become routine in many states; using cheek swabs to take DNA from the people they arrest. Read that twice — from people they "arrest," not those convicted of a crime.
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If a chill is racing down your spine, as Neville observed in the 2007 "I Am Legend" flick, "you are not alone."
Now, let's set things straight; I am a big fan of law enforcement. Really. I have, after all, been a lawyer for almost 30 years and believe to the center of my corpuscles in the rightness of the system. So law enforcement having tools to prosecute the bad guys doesn't bother me. Just as much as the next guy, I want to be safe and secure on our streets and in my home and believe that most times, to almost superhuman proportions, the men and women in blue are terrific.
What I'm worried about, instead, is the Fourth Amendment to the United States Constitution. Borrowing from what's known as the Gasden Flag — you know, the one with the coiled rattler about to strike, fist used in 1775 in the colonies tussle with Great Britain — hey, "Don't Tread on Me" or at least, hey, please don't tread on the United States Constitution which, besides independence, was what all the tussling with the Mother Country was all about.
The Fourth Amendment provides, in full, "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."
Like much of the Constitution, the Fourth is a model of brevity.
Now, if you've read my prior columns, you know that I believe the Constitution was meant, by design, to be a living, breathing thing; one intended to adapt to changing times and circumstances. I have quoted Thomas Jefferson before, who cannily observed that, "some men look at constitutions with sanctimonious reverence, and deem them, like the ark of covenant, too sacred to be touched … I am certainly not an advocate for frequent and untried changes in laws and constitutions … but I know also that laws and institutions must go hand in hand with progress of the human mind … We might as well require a man to wear still the coat which fitted him when he was a boy, as civilized society to remain ever under the regiment of their barbarous ancestors."
I'm with you, Tom.
What concerns me, though, about the Supreme Court's latest decision is that part of the Fourth Amendment that holds "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."
Um … like the inside of your mouth?
While not the heart and mind of a being, DNA is the essence of one's self. It is, biologically at the least, what makes me me and makes you you and makes Justin Bieber a hot mess. What, I ask, is more personal to you than the blueprint of your very self? And if law enforcement can root around among your root canals, as a matter of course simply because you are "suspected" of committing a crime, well … I don't know … as much a law-abider as I am, it just gives me the willies.
A little historical perspective might be useful. History is replete with governments abusing those they're charged with governing. Now, I sleep well enough at night whether a Democrat or Republican is warming the presidential bench. But complacency has led to the Hitlers of the world and even a democracy as sound as ours must be watchful and take care too not give too much away.
Is a DNA swab of your cheek if you are in custody and suspected of evil doings going too far? Maybe … or maybe not. I'll leave that up to you, The People. What I do know, though, is that at some point a line is crossed. And it is up the Supremes to resist taking us too near the precipice. For once that line is crossed, we may find the ground from which we stepped is no longer quite so stable or secure.
Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. He may be heard on Wednesdays at 7 p.m. on KZYR radio (97.7 FM) and seen on ECOTV 18 as host of "Community Focus." Robbins may be reached at 970-926-4461 or at either of his email addresses, firstname.lastname@example.org or email@example.com.