Preeminent Harvard Law Professor Charles Ogletree, said the Supreme Court’s ruling Monday legitimizing Maryland law enforcement’s use of an overreaching procedure of collecting genetic data in serious crimes will likely lead the way to more troubling privacy violations of the 4th Amendment's protection against “unreasonable search and seizure.”
‘This opens up a Pandora’s Box on how far law enforcement can go with technology as evidence tools going forward,” Ogletree said, adding “This hotly contested [criminal justice] issue won’t be resolved with this case or even the next one; it will take some time to figure out.”
Ogletree notes a trend in the Supreme Court’s split ruling (5-4) that DNA sampling is minimally intrusive and does not violate the 4th amendment. He suspects there will be similar close decisions as court watchers wait for the justice’s ruling in two critical upcoming civil rights cases before their term ends -- one on voting rights, the other on affirmative action in higher education.
Monday’s SCOTUS decision overturned an earlier ruling by the Maryland Court of Appeals. The Maryland challenge came from Alonzo King, of Wicomico County, whose DNA sample was linked to a 2003 unsolved rape after he was arrested in 2009 on an unrelated assault charge. He was later convicted of the rape.
Justice Anthony Kennedy ruled the DNA sampling was a simple police booking procedure to “identify” suspects, while conservative Justice Antonin Scalia -- usually not one that Ogletree agrees with -- said it is an overreaching power tool for police and prosecutors which can be used whether you are “arrested rightly or wrongly, and for whatever reason.”
“It is so clear that [Scalia] in making his dissent is lamenting the role of technology in what the founders meant with the [4th] Amendment,” Ogletree said.
He pointed out that Justice Stephen Breyer, who sided with the conservative wing, has a history of ruling in favor of law enforcement against defendants in criminal cases and Scalia is a strict adherent of what he views as the original words and intent of the Founding Fathers.
Maryland’s test case on the collection of DNA samples without a warrant, Ogletree warns, is a watershed ruling which is not just about locking up criminals or “fishing expeditions” for suspects from the cold case database, but it is also sets the stage for further erosion of all citizens’ rights to privacy.
Even former Prince George’s County State’s Attorney Glenn Ivey, who pushed for DNA sampling to get “cold case hits” from the national database, agreed that the ruling tests new limits and has “widespread implications for everyone.” In a television interview earlier this week, he added that is why “state legislatures need to set limits on how [the DNA sampling] is used.”
When you shut your door and close your curtains do you have “a reasonable expectation of privacy,” believing that your intimate actions will remain private?
When you are driving down the street “in plain view” but with the windows rolled up, do you trust that your heart-to-heart confession to a close confidant will not end up as criminal evidence someday? How far will law enforcement be allowed to intrude on your privacy as more sophisticated 21st century surveillance and technological tools are invented to ease investigations?
The well-known legal scholar was in Baltimore last week to be the keynote speaker at the Mentoring Male Teens dinner which raises funds to send the young “kings” on college tours. “I only wish there were more African Americans like [founder Cameron Miles] who would spend all their time and money doing the same to help troubled youth who find themselves often fatherless, homeless and without a vision for their lives,” Ogletree said.
The former deputy director of the D.C. Public Defender Service and trustee of the University of the District of Columbia, is also co-founder of a public charter school in Cambridge, Mass., the Benjamin Banneker Charter School for neighborhood children who have “troubling experiences” in the regular public school. He hired specialized teachers with expertise and empathy for working with the students on subjects modeled after Maryland-born Banneker’s accomplishment in science, technology, engineering and math – now known as STEM courses.
He is proud of those students who are now graduating from college, some with honors.
However, some minority students may not be so fortunate in the future. Ogletree is keeping a watchful eye on the Supreme Court which is expected to rule any day now – before their session ends in June --- on a landmark education case, Fisher v. Univ. of Texas, which “will likely end affirmative action as we know it.”
He suspects a split decision in the Fisher case will negate the 2003 SCOTUS affirmative action ruling involving the University of Michigan in which retired Justice Sandra Day O’Connor’s ruling was based on the importance of diversity in the classroom, the military, and the workplace.
Predicting a similar split decision in the 1965 Voting Rights Act case, Ogletree said the court will likely strike down the central statute which requires federal oversight and permission for any changes in local voting practices in states which historically violated and suppressed minority voting rights.
“We’ll have to wait and see what happens going forward,” Ogletree said, “it’s only days away.”