The courts had previously ruled that taking of your blood for DNA purposes is basically a “search and seizure” protected by the 4th amendment and cannot be done without a warrant. Now that science has progressed to the point where cotton swabs of your saliva are enough, the Courts have said “Oh, well, that’s different” because, um, because we said so.

Apparently, your right to be free from a search doesn’t apply if the search is not bothersome. Clearly, therefore, if the police come into your house without a warrant and wear white gloves and put everything back afterwards, that would be just fine too.

If you’re a cop and you think someone is a suspect and you need DNA, and you have probable cause, you can get a warrant for DNA. It’s done all the time. You go to see a judge, present your evidence, and the judge says yes or no. (And yes, good judges do say no from time to time. I’ve seen it happen.)

This case, however, was about getting DNA on anyone who gets arrested. No need to see a judge first to prove you have probable cause. So those cops who randomly stop minority kids in New York and arrest them on “loitering” or other minor charges? You can bet they’ll soon be carrying cotton swabs around with them.

So why is this a bad thing?

It’s bad because this is self-incrimination. You know, the thing prohibited in the 5th Amendment. You are being forced to provide evidence to the police against your will which could be much more incriminating than any confession. They don’t need your DNA for identification purposes — they already know who you are and can probably confirm that through your fingerprints — it’s being used to help build their case against you.

That’s the difference and that’s the problem.

Remember, we’re talking about people who are arrested, not convicted. Many people are arrested and never convicted. Sometimes the charges are never even filed. Once you are convicted, having to provide DNA as part of your probation requirements is perfectly valid, because you lose many rights once you’re convicted. This, however, takes away your rights before you are even charged.

The most surprising thing about this decision is that Scalia voted with the liberals. Every once in a while the voices in his head that he thinks are the Founding Fathers tell him the right thing, I suppose.