U.S. Supreme Court

SCOTUS upholds DNA swab for arrestees; Scalia says majority taxes 'credulity of the credulous'


Police may collect DNA from those arrested but not yet convicted for serious offenses, the U.S. Supreme Court has ruled in a 5-4 decision that compares DNA collection to fingerprinting.

Justice Anthony M. Kennedy wrote the majority opinion (PDF) upholding DNA cheek swabs as part of the booking procedure for arrests supported by probable cause in serious offenses. The cheek swab, “is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment,” Kennedy wrote.

Justice Antonin Scalia wrote a dissent joined by three of the court’s liberals, Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Scalia said the DNA swabs, taken without a warrant, violate the Fourth Amendment since they are intended to discover evidence of criminal wrongdoing unrelated to the arrest. “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 wrote.

“Today’s judgment will, to be sure, have the beneficial effect of solving more crimes,” Scalia said. “Then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the ‘identity’ of the flying public), applies for a driver’s license, or attends a public school. 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.”

The court majority ruled against Alonzo King Jr., who was arrested in 2009 based on accusations he menaced a group of people with a shotgun. Police took a DNA swab of his cheek as part of a routine booking procedure for serious offenses in Maryland. The DNA profile matched a sample collected in a 2003 unsolved rape case, leading to King’s trial and conviction on the rape charge.

Under Maryland law, DNA may be collected for those arrested for offenses including crimes of violence, attempted crimes of violence, burglary and attempted burglary. Crimes of violence include murder, rape, first-degree assault, kidnapping and arson.

Kennedy said ascertaining a suspect’s identity and criminal history are critical when there is probable cause for arrest. Both serial killer Joel Rifkin and Oklahoma City bomber Timothy McVeigh were stopped for driving without a license plate, for example.

“An individual’s identity is more than just his name or Social Security number, and the government’s interest in identification goes beyond ensuring that the proper name is typed on the indictment,” Kennedy wrote. Police take a mug shot and show it to witnesses; they take fingerprints and compare it to a database. “In this respect the only difference between DNA analysis and the accepted use of fingerprint databases is the unparalleled accuracy DNA provides,” Kennedy said.

When police use the suspect’s DNA profile to search records in their possession, it “is no different than matching an arrestee’s face to a wanted poster of a previously unidentified suspect; or matching tattoos to known gang symbols to reveal a criminal affiliation; or matching the arrestee’s fingerprints to those recovered from a crime scene,” Kennedy said. DNA collection also helps officers know the type of person they are detaining, helps determine whether a suspect has a record and is inclined to flee, and helps assess the danger to the public if the suspect is freed on bail.

“By comparison to this substantial government interest and the unique effectiveness of DNA identification,” Kennedy said, “the intrusion of a cheek swab to obtain a DNA sample is a minimal one.”

The analysis could change, Kennedy said, if technological changes make it possible to “analyze samples to determine, for instance, an arrestee’s predisposition for a particular disease or other hereditary factors not relevant to identity.”

Scalia’s dissent, however, predicted that the decision will eventually be extended to arrests for less serious crimes. “Make no mistake about it,” he wrote. “As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.”

Prior coverage:

ABA Journal: “Chemerinsky: Does the Fourth Amendment still fit the 21st Century?”

ABAJournal.com: “Scalia and Kagan appear most skeptical about DNA collection from arrestees”

ABA Journal: “Blood Simple: DWI Test Is Latest in a Series of SCOTUS 4th Amendment Cases”

ABAJournal.com: “Supreme Court to Decide if Police Can Take DNA from Suspects Arrested for Serious Crimes”

Edited on June 4 to correct a misspelling in the headline.

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