United States Supreme Court decision on DNA samples from arrestees
Today, the United States Supreme Court approved the ability of the police to obtain DNA samples from persons they have probable cause to arrest and process for serious offenses. In Maryland v. King, 569 U.S. ___ (2013), which may be found at https://www.supremecourt.gov/opinions/12pdf/12-207_d18e.pdf#page=1&zoom=auto,0,792, the court forged new law.
The opinion was a split 5-4 opinion and ruled that the taking of DNA samples was akin to photo comparison, matching gang tattoos and fingerprint comparison. The Court stated that “(t)he advent of DNA technology is one of the most significant scientific advancements of our era. The full potential for use of genetic markers in medicine and science is still being explored, but the utility of DNA identification in the criminal justice system is already undisputed.”
The Court approved the process of the Maryland statute at issue. That statute allowed law enforcement to collect DNA samples from one charged with a crime of violence. The crimes listed under the statute included murder, rape, burglary and attempt burglary among other serious offenses. The DNA sample could not be processed or placed into the database absent consent before a finding of probable cause to detain the individual on a qualifying serious offense. DNA samples, under the statutory scheme, are destroyed if there is a finding of no probable cause, the criminal action does not result in a conviction, the conviction is reversed or vacated and no new trial permitted or the individual is given an unconditional pardon.
The statute permits a swabbing on the inside of the cheek of a person arrested for one of the enumerated serious crimes. The Court stated that such an intrusion was less serious than taking blood, which might entail the necessity of a search warrant.
The rationale for its decision was that law enforcement needs a safe and accurate way to identify persons taken into custody, that it was a valid search incident to arrest, that a person’s past conduct is essential to determine dangerousness when setting bail, and that the intrusion is minimal among its reasons.
It should be noted that Justice Scalia wrote a scathing dissent that was joined by Justices Ginsburg, Sotomayor and Kagan. He wrote that 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.” He further stated that “(t)hat prohibition is categorical and without exception.” He stated that no such non-investigative rationale exists for the Maryland statute.
This decision is clearly important and may change the future of Fourth Amendment jurisprudence.
Lori G. Levin
Attorney at Law
180 N. LaSalle, Suite 3700
Chicago, IL 60601