In a change that many feel is a shocking change, the Supreme Court has determined that it is now legal for law enforcement to take DNA swabs from people who have been arrested for “serious crimes.” Twenty eight states and the federal government had been taking DNA samples for some time, but it took an appeal of a rape conviction based on a DNA swabs for the Supreme Court to make this 5-4 ruling.
In the case of Maryland v. King, Alonzo King was arrested in 2009 on first and second degree assault charges in Wicomico County, Maryland. Mr. King was taken to booking where a cheek swab was taken to collect his DNA. The sample was allowed as evidence due to the Maryland DNA Collection Act. Police discovered that Mr. King’s DNA matched and unsolved rape from 2003, and he was subsequently charged with that crime and convicted for the 2003 rape. Mr. King appealed on the basis that when the police took the DNA swab it was in violation of the Fourth Amendment, which protects citizens from unreasonable searches and seizures. In this case, the Supreme Court found that DNA testing improves police investigative practices. Taking these DNA samples is legal in relation to people charged with violent crimes, including first-degree assault. With this decision, it is not only possible for police to confiscate personal property such as your your driver’s license and business credit cards, but also your DNA.
Maryland argued that the DNA swabs were reasonable because of the non-invasive method of extracting the DNA. The cotton swab, as Maryland argued, on a suspect’s cheek is just as non-invasive as making someone blow through a breathalyzer or giving their finger prints for analysis. An attorney for the federal government, in support of the Maryland law, argued that people under arrest are no longer free citizens who have their full Fourth Amendment rights. They can be subjected to strip searches and medical screenings when they are put in jail.
In a somewhat surprising dissent, Associate Justice Anton Scalia stated that the current limitation of taking DNA from those arrested for violent crimes would not last. Associate Justice Scalia, who is ordinarily in support of governmental power, stated that part of the problem with taking DNA is that whether a person is arrested rightly or wrongly, their DNA will be entered into a national database. He stated that it is not a large step away from taking DNA for any kind of arrest, and that it is possible that someday the TSA will take DNA from travelers to ensure that flights are safe, and eventually, a school may take DNA from students as they enroll in school. Whether his examples are hyperbole or whether he believes law enforcement is headed down a slippery slope was not entirely clear.
Associate Justice Kennedy, when speaking for the majority, stated that using DNA to identify suspects of previous crimes is not different than using photographs of unidentified suspects or matching tattoos of gang members. Associate Justice Kennedy stated that DNA is another tool to help identify people who have left traces of themselves at crime scenes.
An attorney for the government stated that the reason law enforcement was only interested in taking DNA from more serious crimes was that criminals were more likely to leave DNA behind after committing a violent crime compared to crimes like shoplifting. Law enforcement is more likely to find DNA linking suspects to prior violent offenses when taking DNA from those arrested for violent offenses.
Now that taking DNA of those arrested for violent crimes is the law of the land, it remains to be seen if the scope of DNA tests will spread to those arrested for less serious crimes. It is also unclear if taking DNA for less serious offenses will be at odds with the current Supreme Court decision.