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Divided Supreme Court upholds DNA swabbing

June 3, 2013 by NCC Staff


The Supreme Court didn’t announce a decision on affirmative action on Monday, but it did rule on a major privacy issue involving DNA tests and arrests.

dnasamplesIn a 5-4 decision in Maryland v. King, the court said that people arrested under probable cause in felony cases can be subject to DNA swabbing, even if they aren’t later charged, tried, and convicted.

At issue in the ruling Monday was if taking DNA samples from a person in custody, without a warrant, was an unconstitutional "search."

The Fourth Amendment guarantees a person’s right against unreasonable searches.

Link: Read the court’s decision

“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,” said Justice Anthony Kennedy in the court’s majority opinion.

The dissenters included the unusual combination of conservative Justice Antonin Scalia, and three liberals: Elena Kagan, Sonia Sotomayor, and Ruth Bader Ginsburg.

"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,” said Scalia. “And the court's comparison of Maryland's DNA searches to other techniques, such as fingerprinting, can seem apt only to those who know no more than today's opinion has chosen to tell them about how those DNA searches actually work."

“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.

The decision in Maryland v. King upheld the rape conviction of Alonzo King. When King was arrested for an alleged assault in 2009, a DNA sample was taken under Maryland law that identified him as a suspect in an unsolved rape from 2003.

About 28 states and the federal government allow taking DNA swabs after arrests.

The Maryland Court of Appeals had reversed King’s rape conviction, saying it was illegal for officers to take King’s DNA sample without approval from a judge.

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