Can Cops Take Your DNA Without a Warrant?

Officer taking a DNA swab from a man's mouth


The United States Supreme Court heard arguments Tuesday on whether DNA samples can be collected from crime suspects without a warrant.

In Maryland v. King, the court is expected to decide whether the policy of 28 states and the federal government to swab DNA from arrestees is a violation of privacy rights, in what Justice Samuel Alito called “the most important criminal procedure case this Court has had in decades.”

At issue is whether taking DNA constitutes an invasive search of a suspect, or if it is no different from collecting fingerprints.

The Supreme Court case evolved from the 2009 arrest of Alonzo King for assault in Maryland. When police checked his DNA, they found a match from a six-year-old rape, which King was subsequently convicted for and sentenced to life in prison.

The Maryland Court of Appeals tossed the conviction, noting that the DNA taken from King had nothing to do with the assault charge he was arrested for. Now the state finds itself in front of the high court to defend its policy, making arguments that could affect more than half the states in the nation, as well as federal law enforcement’s own DNA sampling efforts.


Proves Absolutely Nothing

The DNA program has been successful in catching criminals. Chief Deputy Attorney General Katherine Winfree, arguing for Maryland, noted that the state has made 225 matches, 75 prosecutions and 42 convictions based on DNA sampling since 2009.

Justice Antonin Scalia immediately questioned her argument, replying, “I’ll bet you if you conducted a lot of unreasonable searches and seizures, you’d get more convictions, too.
That proves absolutely nothing.”

Proponents of blanket DNA sampling have noted that suspects already give up certain liberties when they are arrested but not yet charged, including being handcuffed, searched and placed in a jail cell. Justice Elena Kagan wondered if a simple arrest would be enough for police to search a resident without a warrant, then, if DNA sampling is ok.

Supreme Court Report logoAlito focused on the similarities between DNA and fingerprints, which are generally collected from people who are arrested as a matter of course and can be used to link them to other crimes. However, opponents say, DNA also offers a wealth of information about a person’s family and medical history that fingerprints do not, as well as requiring an actual intrusion into the body in the form of a Q-tip to the inside of the cheek.

The justices wondered whether the state’s policy meant that anybody pulled over for a traffic violation could be swabbed.

The justices appeared to be split on the issues during questioning. The final opinion, whatever it may be, will have to address two big questions: What is the balance between protecting the individual privacy of a suspect and solving cases that might otherwise be unresolved? And to what extent do changes in technology like DNA sampling turn simple identification into a more intrusive and potentially unconstitutional act?

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