Cops Don’t Need Warrant To Swab DNA, Supreme Court Rules

Posted June 3, 2013 in Government Your Personal Rights by

Woman's mouth being swabbed for DNA


Swabbing a suspect’s cheek for DNA after arrest is a reasonable procedure to aid in identification, just like fingerprinting, the Supreme Court ruled today.

In Maryland v. King, the court decided in a 5-4 opinion that police do not need a warrant to collect DNA from people charged with serious crimes.

“The Court must give great weight both to the significant government interest at stake in the identification of arrestees and to the unmatched potential of DNA identification to serve that interest,” states the opinion, written by Justice Anthony Kennedy.


Crimes of Violence

After Alonzo King was arrested in 2009 for assault in Maryland, routine DNA sampling identified him as the perpetrator of a rape six years previously.

Maryland authorizes officers to swab people arrested for a “crime of violence, an attempt to commit a crime of violence, a burglary, or an attempt to commit a burglary.” Twenty-seven other states, as well as the federal government, also routinely swab arrestees.

King appealed his life sentence and got a favorable ruling from the Maryland Court of Appeals, which decided that police shouldn’t have taken the DNA. The Supreme Court has now reversed that decision, giving a green light to law enforcement in Maryland and across the nation to swab away.

“The Act serves a well-established, legitimate government interest: the need of law enforcement officers in a safe and accurate way to process and identify persons and possessions taken into custody,” the opinion reads, noting that police have an interest in knowing if a detainee has a criminal record, and already compare photographs and fingerprints towards that end.

“A suspect who has changed his facial features to evade photographic identification or even one who has undertaken the more arduous task of altering his finger­ prints cannot escape the revealing power of his DNA,” Kennedy writes.

The court also notes that Maryland law limits the use of DNA to identification purposes only and does not permit it to be used to dig into a person’s family history and medical profile.


Scalia Dissents

The opinion acknowledges that a DNA swab, which involves an officer inserting a q-tip inside a suspect’s mouth, is considered a search for Fourth Amendment purposes, but notes that the physical intrusion is negligible and that the search is a reasonable one in which government interests outweighs an individual’s privacy interest.

Justice Antonin Scalia disagreed. In a dissenting opinion joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kaga, Scalia lays out a case that DNA swabbing means that people are being searched for evidence to tie them to crimes that they weren’t otherwise being investigated for.

“The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the state’s custody, taxes the credulity of the credulous,” Scalia writes. “The Court’s comparison of Maryland’s DNA searches to other techniques, such as fingerprinting, can seem apt only to those who know no more than today’s opinion has chosen to tell them about how those DNA searches actually work.”

King’s DNA wasn’t actually processed until nearly four months after his arrest, the dissent points out, poking holes in immediate identification argument.

Arrestees generally can be searched only for weapons or for evidence about the specific crime they were arrested for, the dissent argues. And however mimimally invasive a swab may be, it’s still a search, Scalia asserts, and “suspicionless searches are never allowed if their principal end is ordinary crime-solving.”

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