Police DNA Swabs OK Upon Arrest: Supreme Court

By Brett Snider, Esq. on June 03, 2013 | Last updated on March 21, 2019

Police and law-enforcement officers can collect DNA samples from arrestees facing a "serious offense" without violating their Fourth Amendment rights, the U.S. Supreme Court ruled Monday.

The 5-4 decision in Maryland v. King overturned a Maryland Court of Appeals ruling which threw out a rape conviction and life sentence for Alonzo Jay King based on evidence collected from a post-arrest DNA swab, reports Reuters.

Is this case another erosion of arrestees' Fourth Amendment rights?

Maryland Law Allows DNA Sampling

The Supreme Court's police DNA swab case focused on a law in Maryland. The state is one of 26 that allow for routine DNA sampling after felony arrests; the process creates a DNA profile for each arrestee based on a narrow set of genetic markers, CNN reports.

Proponents of the swab procedure compare it to routine fingerprinting and photographing, both which are done for identification and administrative purposes, and without any intention of evidence gathering.

Like those other forms of identification, no warrant or probable cause is needed under Maryland law to collect DNA from someone arrested for a serious offense.

Legitimate Booking Procedure

As Justice Antonin Scalia noted in his dissent, the Fourth Amendment prohibits searching a person for evidence without a factual basis for believing that she is guilty of a crime or possesses incriminating evidence linking her to a crime.

This is not a hard-and-fast rule, however. For example, routine searches and seizures are allowed during standard police booking procedures, including seizing the clothing that an arrestee is wearing without probable cause.

Penning the majority opinion, Justice Anthony Kennedy justified the DNA swab as a means for police to identify a suspect, much like a fingerprint, which is information that law enforcement "should know when processing him." You can read the entire opinion here.

Warrantless Searches

Many, including Justice Scalia, worry that this ruling sets a dangerous precedent for the Fourth Amendment by carving out another area where law enforcement can gather evidence without a warrant.

However, the Court upheld the need for warrants for blood tests in DUI arrests in April, citing the ease of getting a warrant while a DUI suspect was stopped. That tempered the state's interest in getting blood evidence without one, the Court explained.

Each case involves balancing government interests against individual privacy rights, and in this case, the Supreme Court determined that a routine DNA cheek swab was justified by the need to accurately identify arrestees.

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