In a 5 to 4 decision the Supreme Court approved under the 4th Amendment the collection of DNA samples from arrestees of serious, violent crimes as a routine booking procedure. Alzono King was arrested for menacing a crowd with a shotgun in Maryland. During the booking process at the jail, a swab of his cheek was performed to test his DNA. It provided a match to an unsolved, cold case involving rape in 1993. King was tried and convicted of the rape. The Maryland Supreme Court reversed the conviction finding that under the circumstances the DNA sample violated the 4th Amendment.
The U.S. Supreme Court found that a DNA swab of the cheek is a search, but it is minimally intrusive. The Court reasoned that the ultimate measure of the Constitutionality of a government search is reasonableness. Individualized suspicion is usually the measure of reasonableness but is not strictly required. In this case, the Maryland statute only permits a cheek swab when a person has been arrested for a serious crime generally defined as a violent felony by the statute. The Court is essentially weighing privacy-related and law enforcement-related concerns to determine reasonableness. The majority found that the central law enforcement need was to identify properly who was arrested. The search incident to arrest has always been deemed Constitutional. Identity is more than a name but also a fingerprint, photograph, tattoos, and criminal history. This comprehensive identity analysis is necessary to determine: Risk to law enforcement and jail staff is another reason; Risk of flight is another reason; freeing the wrongfully convicted and the proper determination of bail or risk to the public is another reason for DNA testing.
Further, the intrusion of a DNA cheek swab is minimally intrusive, does not break the skin, and is very brief. The DNA used is from the non-coding portion of the DNA that does not reveal the genetic traits of the arrestee, and only these non-coding non-genetic trait revealing DNA is maintained and stored by the statute.
The Court concluded that:
“When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.”
Justice Scalia authored the dissent and was joined by Justice Ginsberg, Sotomayor, and Kagan. Justice Scalia wrote in a biting dissent that the “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 further that the majority’s logic only makes sense to those who know nothing about how DNA testing works. Scalia asks, “But why are the ‘privacy-related concerns’ not also ‘weighty’ when an intrusion into the body is at stake?”
Scalia calls the Identity rational a scam as the DNA is not processed under the Maryland Statute until the first arraignment which weeks if not months after arrest. This invalids the majority’s arguments for concerns of law enforcement such as Risk to law enforcement and jail staff; Risk of flight after bail the proper determination of bail and risk to the public. That only leaves freeing the innocent which the comparing DNA database does not even cover as it only stores DNA in unsolved cases, not in cases with convictions. Further, the DNA of arrested and convicted felons is not even checked with the newly arrested’s DNA sample, so it in fact has nothing to do with identity. In fact under Maryland law using DNA in this manner would be a felony in and of itself. In fact, it took the Maryland crime lab over 4 months to test the DNA and upload it to the FBI DNA database!?!
In conclusion, Scalia summarizes:
“So, to review: DNA testing does not even begin until after arraignment and bail decisions are already made. The samples sit in storage for months and take weeks to test. When they are tested, they are checked against the Unsolved Crimes Collection—rather than the Convict and Arrestee Collection, which could be used to identify them. The Act forbids the Court’s purpose (identification), but prescribes as its purpose what our suspicionless-search cases forbid (“official investigation into a crime”)….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.”
All I can say is WOW! Scalia is the hero of those who fight fights intellectually dishonest jurisprudence otherwise known as results-oriented justice.