Constitution Daily

Smart conversation from the National Constitution Center

Does DNA stand for “doesn’t need a” warrant?

June 5, 2013 by Amy E. Feldman


Anyone who has ever been arrested, or has ever watched a television show about anyone getting arrested, knows that when a suspect is “booked” for the crime (taken in to the station by the police), as a matter of process that suspect is photographed and fingerprinted.

dnasamplesThose mug shots and fingerprints remain on file, even if the charges are dropped or the suspect is later found not guilty at trial.

The booking process had not changed much since the early 20th century, when it was scientifically discovered that no two sets of fingerprints are identical.

While it’s a helpful tool, a fingerprint only gives information about whether a particular person was at the site where a crime took place.

In the century since dusting for fingerprints became standard operating procedure in a crime scene investigation, technology has progressed greatly, and DNA evidence is now routinely collected at a crime scene.

In order to match the DNA at a crime scene with a person suspected of a crime, some jurisdictions have been adding a cheek swab to the booking process in order to get a DNA sample.

But unlike fingerprints, DNA gives far more information about the person who is suspected of the crime than just whether he was at the scene of this crime; it can give identifying evidence about the suspect and whether he is implicated in any other case.

When technology is created, the existing law on whether and how it may be used is often slow to catch up. This week, the Supreme Court had to decide whether it is constitutional for the police to routinely take a suspect’s DNA, or whether they need to get a warrant to take a suspect’s sample.

Related Story: Amy Feldman: Do police need a warrant to get your DNA?

Here are the facts of the case:

An assault took place in Maryland in 2009. Alonzo Jay King was identified by photographs and fingerprints at the scene, and as a result, he was arrested and charged with the crime.

While he was being booked for his arrest for assault, under a Maryland statute that allowed the police to take DNA from all people arrested for violent crimes, King’s cheek was swabbed to take a DNA sample, even though the police had enough evidence to charge him with the assault.

When the DNA sample was entered in Maryland’s DNA database, it matched the DNA taken from an unsolved rape that happened back in 2003.

King was convicted of second-degree assault for the case for which he was originally arrested; he was also convicted of the 2003 rape based on the DNA evidence and was sentenced to life in prison without the possibility of parole.

King appealed the rape conviction because he said that taking the DNA sample was a search and seizure for which the state should have gotten a warrant. The Fourth Amendment to the United States Constitution states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Because the state didn’t get the warrant, King argued, it violated his Fourth Amendment right against unreasonable searches and seizures.

This week, a very divided Supreme Court decided that the police may, under the Constitution, take a DNA sample from a person who is arrested for a serious crime without first getting a warrant.

According to Justice Anthony Kennedy, who wrote for the five-justice majority, “taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinted and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.”

But four justices disagreed with the majority opinion. In writing the dissenting opinion, Justice Antonin Scalia wrote that the warrantless taking of a DNA sample from a suspect should not be allowed.

In the dissent, he disagreed with the majority’s opinion that taking a DNA sample is the same as taking a mug shot, stating that a mug shot “is not a Fourth Amendment search at all. It does not involve a physical intrusion on the person.”

He further took issue with the majority’s claim that taking a DNA sample is like taking a fingerprint: “Fingerprints of arrestees are taken primarily to identify them (though that process sometimes solves crimes); the DNA of arrestees is taken to solve crimes (and nothing else).”

But Justice Scalia made a broader point in the dissent than a simple comparison of fingerprint evidence and DNA evidence, fearing that once a warrantless search of DNA evidence is allowed in this case, there will soon be no limits on the police’s ability to search without a warrant.

“The Court disguises the vast (and scary) scope of its holding by promising a limitation it cannot deliver. … 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 said.

So let us know: Do you think a relatively non-invasive cheek swab for DNA evidence of a person already under arrest as a suspect in a crime is a reasonable and allowable intrusion that will give the police a tool for crime solving?

Or do you believe that allowing the police to take a DNA sample without a warrant is the first step in what will be a slippery slope of privacy violations that should have been declared unconstitutional? You can comment below with your  opinions.

Amy E. Feldman is the legal education consultant to the National Constitution Center. She is the general counsel of The Judge Group, Inc., a leading global professional services based in Philadelphia.

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