Supreme Court Backs DNA Collection in Arrests

This article published with permission from The Burrill Report.

A divided U.S. Supreme Court has ruled that police may take and analyze DNA samples from anyone arrested for a “serious offense” as part of the gathering of forensic evidence.

The decision split the justices 5-4 in support of allowing DNA collection during routine booking and could, in certain cases, lead to cheek swabs for DNA collection becoming nearly as common as photographing and fingerprinting — identification tools Justice Anthony Kennedy described in the majority ruling as comparable, though less accurate.

“The advent of DNA technology is one of the most significant scientific advancements of our era,” wrote Kennedy. “The full potential for use of genetic markers in medicine and science is still being explored, but the utility of DNA identification in the criminal justice system is already undisputed.”

The case at issue, Maryland v. King, pitted the state of Maryland against Alonzo King, who after his 2009 arrest on first- and second-degree assault charges was processed through a Maryland facility where booking personnel used a cheek swab to take a DNA sample. The swab was matched to an unsolved 2003 rape, and King was charged with that crime. King later appealed his conviction for the rape on the grounds that his Constitutional Fourth Amendment right to be free from unreasonable search and seizure had been violated. The court ruled that it had not been violated.

The first use of forensic DNA analysis was in England in 1986. Since then, its use in the United States has grown and is allowed by laws in at least 26 states, according to an analysis by Bloomberg.

“Both federal and state courts have reached differing conclusions as to whether the Fourth Amendment prohibits the collection and analysis of a DNA sample from persons arrested, but not yet convicted, on felony charges,” Kennedy wrote. The Maryland v. King ruling will put that issue to rest for now.

The American Civil Liberties Union characterized the decision “a blow to genetic privacy.” Appraising the ruling on the group’s blog, ACLU of Northern California staff attorney Michael Risher wrote that the ruling “allows the police to seize the DNA of innocent Americans who have never been convicted of any sort of crime, without a search warrant.”

Risher says that Justice Antonin Scalia “makes clear in his scathing dissent, the majority opinion goes against decades of precedent that makes it clear that the police cannot search an individual for evidence of a crime (and that’s clearly what they are doing here) without a specific reason to think that the search will actually uncover some evidence.”

While technological limitations today may slow the creation of what some critics fear most, a national DNA database, Scalia writes in his dissent that that’s what the ruling would move the nation toward.

“Make no mistake about it: 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,” he wrote.

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