In a 5-4 ruling, the U.S. Supreme Court held in Maryland v. King that when a person is arrested for a serious crime, which is supported by probable cause, taking and analyzing DNA from a cheek swab is a legitimate booking procedure, like taking mug shots and fingerprinting. The opinion was released on June 3, 2013.
In 2009, the defendant was arrested and charged with first and second degree assault for menacing others with a shotgun. His DNA was then taken and matched to an unsolved rape case. Therefore, he was charged and later convicted for this rape. The Court of Appeals of Maryland ruled that the DNA taken was an unlawful seizure since the cheek swab was an unreasonable search of the defendant’s person. Due to the Fourth Amendment violation, the Court of Appeals set aside the conviction.
Maryland law allows law enforcement to collect DNA samples from those charged with violent crimes or burglary as well as such attempted offenses. The DNA is then processed after the defendant’s arraignment. If the charges are found to be unsupported by probable cause or if no conviction results or is reversed, vacated, etc., the samples are destroyed.
The Supreme Court echoed that the legitimate government interest served here is providing officers a safe and accurate way to identify and process arrestees. The Court compared taking DNA to fingerprinting and police photography and stated the only difference is the high degree of accuracy that DNA provides. Moreover, the Court stated that using DNA for identification is no different than matching a suspect’s face to a wanted poster. In other words, the majority had no problem treating DNA collection and analysis as a routine administrative booking procedure.
The Court justified its ruling with many assertions. First, that a defendant’s criminal history is an important aspect of identification that would aid law enforcement when processing the person for detention. The Court stated that, commonly, people who are detained for minor crimes turn out to be the most dangerous criminals. Additionally, it stated that officers are responsible for making sure that the appropriate safety precautions are taken with each defendant, and DNA information allows a better determination of the level of danger that the individual poses. Also, it asserted that the government has a strong interest in ensuring defendants are present at trials. Defendants who committed past crimes that are unsolved may be more likely to flee. In addition, the Court stated that the defendant’s past conduct informs bail decisions as well. Finally, the Court said that these identification efforts may also free another person wrongfully imprisoned for the same offense.
While suspects can get facial surgery or alter fingerprints, a person cannot escape detection through DNA. The Court found, in light of the substantial government interest in obtaining a uniquely effective DNA sample, the intrusion in taking a cheek swab is minimal. Moreover, it stated that a person’s expectation of privacy is necessarily of a diminished scope when taken into police custody. In conclusion, the Court reversed the judgment of the Court of Appeals of Maryland.
DNA may not be tested or placed in a database before arraignment
However, Justice Scalia offered a scathing dissent to this opinion. He pointed out, while the majority was correct to point out that searches without individualized suspicion are permissible in certain instances, never was it approved when the main purpose is ordinary crime solving. He stated it is flat out wrong that the search served the special purpose of identifying the defendant, unless “identifying” is defined as “search for evidence that he has committed crimes unrelated to the crime of his arrest.” Furthermore, he pointed out that in Maryland, DNA may not be tested or placed in a database before arraignment. He said he hopes that Maryland officials do not take the majority’s declaration seriously that the search would help the defendant be identified at every stage of the criminal process. He said the search had nothing to do with establishing the defendant’s identity—and that analyzing the DNA was a slow process. Moreover, he said that nowhere does the law in question mention identifying arrestees, and that it is a crime do so, since it explicitly forbids using DNA records for any unspecified purposes.
In addition, he stated that post-arrest use of fingerprints couldn’t be more different than the post-arrest use of DNA. Fingerprints are primarily used to identify individuals, and they occasionally solve crimes. DNA samples are used to solve crimes and nothing else. Moreover, the real issue in this case is not whether DNA will someday be used for identification—or even if it can be used as such—but whether it was used here. The defendant’s DNA was taken to possibly solve a cold case.
Justice Scalia argued that one completely predictable consequence of this decision is that a person’s DNA could be collected and logged in a national database if a person is arrested for any reason, rightly or wrongly.
Ultimately, he stated that the decision will have the positive effect of solving more crimes. But his most blistering criticism followed: “Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.” He closed with hoping that this attack on the Fourth Amendment will be repudiated at some point in the future.