U.S. Supreme Court Rules Police Have the Power to Take DNA Samples Without Warrants

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By Glynn Wilson

In a rare, divided opinion not along party lines, the United States Supreme Court has issued a ruling 5-4 allowing police the power to take and store DNA swabs on anyone arrested for any “serious crime” without a warrant, convicted or not.


Alonzo Jay King Jr. – Salisbury Maryland PD

The ruling upholds a Maryland statute allowing law enforcement officials to swab anyone arrested for “serious crimes,” wording objected to by one of the most staunch conservatives on the court, Justice Antonin Scalia, a Republican Reagan appointee.

“Make no mistake about it: Because of today’s decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason,” Scalia said in a scathing dissent, which he took the extraordinary step of reading aloud in the courtroom.

“This will solve some extra crimes, to be sure,” he said. “But so would taking your DNA when you fly on an airplane — surely the TSA must know the `identity’ of the flying public. For that matter, so would taking your children’s DNA when they start public school. If you believe that a DNA search will identify someone arrested for bank robbery, you must believe that it will identify someone arrested for running a red light.”

Scalia was joined in the dissent by more liberal Justices Ruth Bader Ginsburg, a Clinton appointee, along with Sonia Sotomayor and Elena Kagan, both Obama appointees.

Justice Anthony Kennedy, another Reagan appointee but who is considered a key swing vote on the court, wrote the majority opinion upholding the Maryland law along with Clarence Thomas, appointed by George H.W. Bush, Chief Justice John Roberts and Justice Samuel Alito, both appointed by George W. Bush.

“Taking and analyzing a cheek swab of the arrestee DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment,” Kennedy wrote. “The use of DNA for identification 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. DNA is another metric of identification used to connect the arrestee with his or her public persona, as reflected in records of his or her actions that are available to police.”

The fifth and deciding vote for the majority came from a Clinton appointee, the more liberal-leaning Justice Stephen Breyer.

A Maryland court had ruled it was illegal to take Alonzo King’s DNA without approval from a judge, ruling that the defendant had “a sufficiently weighty and reasonable expectation of privacy against warrantless, suspicionless searches” under the Fourth Amendment to the U.S. Constitution.

The supreme court’s decision reverses that court ruling and reinstates King’s rape conviction. It came after police took his DNA during an unrelated arrest.

Law enforcement agencies in at least 28 states and federal law enforcement agencies, including the Federal Bureau of Investigation (FBI), are known to take DNA swabs after arrests, prior to conviction. Obtaining DNA swabs from convicted criminals is considered quite common, however. Cheek swabs of DNA are collected on convicted criminals in all 50 states to check against federal and state databases. The high court has already ruled that to be legal and constitutional.

The legal dispute in this case was whether that DNA collection could come before conviction and without a judge issuing a warrant.

The American Civil Liberties Union said the court’s ruling created “a gaping new exception to the Fourth Amendment.”

“The Fourth Amendment has long been understood to mean that the police cannot search for evidence of a crime – and all nine justices agreed that DNA testing is a search – without individualized suspicion,” said Steven R. Shapiro, the group’s legal director. “Today’s decision eliminates that crucial safeguard. At the same time, it’s important to recognize that other state laws on DNA testing are even broader than Maryland’s and may present issues that were not resolved by today’s ruling.”

Maryland’s DNA collection statute allegedly only allows police to take DNA swabs from those arrested for “serious crimes” such as murder, rape, assault, burglary and “other crimes of violence.”

Maryland Attorney General Doug Gansler agreed when AP asked him that there’s nothing stopping his state from expanding DNA collection from those arrested for “serious crimes” to those arrested for lesser offenses, like shoplifting.

“I don’t advocate expanding the crimes for which you take DNA, but the legal analysis would be the same,” Gansler said. “The reason why Maryland chooses to only take DNA of violent criminals is that you’re more likely to get a hit on a previous case. Shoplifters don’t leave DNA behind, rapists do, and so you’re much more likely to get the hit in a rape case.”

In this case a 53-year-old woman was raped and robbed but no arrest was ever made. Almost six years later, Alonzo King was arrested and charged with felony second-degree assault. Using Maryland’s law allowing warrantless DNA tests following felony arrests, police took a cheek swab from King. It matched a sample from the 2003 Salisbury rape, and on that basis, King was convicted of rape and sentenced to life in prison.

King eventually pleaded guilty to a lesser charge of misdemeanor assault from his arrest, a lesser crime not covered by Maryland statute. The state court said King’s rights had therefore been violated, prompting law enforcement officials in Maryland to stop collecting DNA. Chief Justice John Roberts refused to issue a stay in the case, however, pending the court’s full review.

The decision opens the flood gates now for law enforcement officials anywhere to collect DNA samples on anyone they arrest.

The FBI’s Combined DNA Index System already contains more than 10 million criminal profiles and 1.1 million profiles of those arrested. The FBI claims DNA samples are expunged from the federal system for people whose charges have been dismissed and those found not guilty. States and other municipalities that collect DNA, however, make their own rules about what happens to their collections.

Maryland v. King, 12-207.

© 2013, Glynn Wilson. All rights reserved.

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