Earlier this week, the United States Supreme Court ruled that it does not violate the Fourth Amendment for police to take a swab of the inside of someone’s cheek for DNA as part of their standard booking procedure. In Maryland v. King, a defendant was arrested on an assault charge. As authorized by Maryland statute, the police gathered a DNA sample from the defendant and uploaded it to a national database. It matched a previously unsolved rape, and the defendant was ultimately convicted of the rape. The defendant then challenged the legality of the warrantless search and seizure of his DNA.
In the Court’s divided opinion, the majority found that no warrant or probable cause is necessary to gather an individual’s DNA. In reaching this conclusion, the court weighed the interests of the government against the scope and manner of the intrusion of privacy. The Court centered its reasoning on the idea that DNA is used for identification purposes, and like a fingerprint, it is not evidence of a crime on its own. The Court also stated that DNA can help determine what bail to set. For instance, if the DNA shows that the individual is a suspect in other crimes, the Court reasoned that he/she is more likely to flee apprehension and place the public in danger. Therefore, a court would need to set a higher bail.
Justice Scalia wrote the dissenting opinion, refuting the reasoning of the majority and grounding his opinion firmly in the protections afforded by the Fourth Amendment. Justice Scalia wrote, “The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of a 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.” To allow a suspicionless, warrantless search, it must be justified by some non-investigative purpose. The majority claims the purpose is for identification. However, as the dissent points out, DNA samples are not processed until months after an individual has been arrested, and the arraignment and bail decisions have already been made. By contract, an individual’s fingerprints, photograph and/or identification card can be taken immediately and processed for identifying features such as height, weight, race, sex, age, name, address and criminal history. The dissent warns that this decision will lead to DNA samples being taken for traffic offenses. If it can be used to identify someone arrested for a serious offense, then you must believe that it can be used to identify someone arrested for a traffic violation.
The Pennsylvania State Legislature is considering adopting a law similar to that of Maryland: Senate Bill 150. This law would allow police to collect a DNA sample of anyone who is arrested for one of the offenses specifically enumerated in the statute. The stated purpose of the law is to aid law enforcement in identification, and to solve previously unsolved cases.