Vol. 28 No. 12 – Supreme Court Rules that DNA Can Be Taken From Arrestees Without A Warrant


On June 3, 2013, in a 5-4 decision, the United States Supreme Court held, in the case ofMaryland v. King, that “(w)hen officers make an arrest supported by probable cause to hold for a serious offense and 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.”


In 2009, Alonzo King was arrested and charged with felony assault.  While being processed, booking personnel used a cheek swab to take a DNA sample pursuant to the Maryland DNA Collection Act (Act). The swab was matched to an unsolved 2003 rape, and King was charged with that crime as well.  He moved to suppress the DNA match, arguing that the Act violated the Fourth Amendment, but the Circuit Court Judge found the law constitutional and King was convicted of rape.

The Maryland Court of Appeals set aside the conviction, finding unconstitu­tional the portions of the Act authorizing DNA collection from felony arrestees without a warrant.  The Court noted that “the officer collected a DNA sample using the common ‘buccal swab’ procedure, which is quick and painless, requires no surgical intrusion beneath the skin, and poses no threat to the arrestee’s health or safety . . . .”

Supreme Court’s Rationale

“The framework for deciding the issue presented is well estab­lished. Using a buccal swab inside a person’s cheek to obtain a DNA sample is a search under the Fourth Amendment. And the fact that the intrusion is negligible is of central relevance to determining whether the search is reasonable, [which is] ‘the ultimate measure of the constitutionality of a governmental search . . . .”

The Court held that “(b)ecause the need for a warrant is greatly diminished here, where the arrestee was already in valid police custody for a serious offense supported by probable cause, the search is analyzed by reference to ‘reasonableness, not individualized suspicion,’ and reasonableness is determined by weighing ‘the promotion of legitimate governmental interests’ against ‘the degree to which [the search] intrudes upon an individual’s privacy . . . .”

“In this balance of reasonableness, great weight is given to both the significant government interest at stake in the identification of arrestees and DNA identification’s unmatched potential to serve that interest.”  The Court found that “the Act serves a well-established, legitimate government in­terest: the need of law enforcement officers in a safe and accurate way to process and identify persons and possessions taken into custody.”

The Court stated that “(t)he only difference between DNA analysis and fingerprint databases is the unparalleled accuracy DNA provides. 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 the police.”

“DNA identification is an important advance in the techniques long used by law enforcement to serve legitimate police concerns. Police routinely have used scientific advancements as standard procedures for identifying arrestees. Fingerprinting, perhaps the most direct historical analogue to DNA technology, has, from its advent, been viewed as a natural part of ‘the administrative steps incident to arrest.’”

Right of Privacy

The Court also found that the arrestee’s privacy rights were outweighed by the governmental interest at stake. “By comparison to the substantial government interest and the unique effectiveness of DNA identification, the intrusion of a cheek swab to obtain a DNA sample is minimal. Reasonableness must be considered in the context of an individual’s legitimate privacy expectations, which necessarily diminish when he is taken into police custody.”

The Court also addressed the privacy issue regarding the additional information which can be obtained through a DNA sample. “The processing of respondent’s DNA sample’s CODIS loci also did not intrude on his privacy in a way that would make his DNA identification unconstitutional. Those loci came from non coding DNA parts that do not reveal an arrestee’s genetic traits and are unlikely to reveal any private medical information. Even if they could provide such information, they are not in fact tested for that end. Finally, the Act provides statutory protections to guard against such invasions of privacy.”

The Dissent

Conservative Justice Antonin Scalia joined liberal Justices Ruth Bader GinsburgSonia Sotomayor, and Elena Kagan in dissenting. Justice Scalia wrote the dissent, saying the 4th Amendment did not permit searching persons for other crimes they may have committed.

“The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment. Whenever this Court has allowed a suspicion less search, it has insisted upon a justifying motive apart from the investigation of crime.”

“It is obvious that no such non-investigative motive exists in this case. 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. 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.”

Referring to the majority opinion, the dissent states that “(w)e are told that the ‘privacy-related concerns’ in the search of a home ‘are weighty enough that the search may require a warrant, notwithstanding the diminished expe­tations of privacy of the arrestee.’  But why are the ‘privacy-related concerns’ not also ‘weighty’ when an intrusion into the body is at stake? (The Fourth Amendment lists ‘persons’ first among the entities protected against unreasonable searches and seizures.)”

“Sensing (correctly) that it needs more, the Court elaborates at length the ways that the search here served the special purpose of ‘identifying’ King.But that seems to me quite wrong—unless what one means by ‘identifying’ someone is ‘searching for evidence that he has committed crimes unrelated to the crime of his arrest.’”

“Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the pro­tection of our people from suspicionless law enforcement searches. The Fourth Amendment must prevail.”


More than half of the states have procedures in place to take DNA samples from those arrested for serious crimes.  Many have held off utilizing those procedures while waiting for this decision.  Some jurisdictions in California have waited, as well.  Based on this ruling, however, the wait appears to have come to an end.

The Supreme Court has concluded that it is not necessary to secure a warrant before requiring that one arrested for a serious crime, certainly a felony, be required to provide a DNA sample.  The decision of whether to forcibly take such a sample will be made by each jurisdiction, probably on a case by case basis.

However, as with all legal issues, it is most important that you seek advice from your agency’s legal counsel before establishing any policy regarding the application of this Court’s decision.  As always, if you wish to discuss the case in greater detail, please don’t hesitate to contact me at (714) 446 – 1400 or via email at mjm@jones-mayer.com.

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