Maryland v. King: Police May Take DNA Samples from People Arrested for Serious Crimes

The Supreme Court in Maryland v. King ruled that taking DNA samples from individuals arrested for serious crimes does not violate the Fourth Amendment, reasoning that the procedure was no different than photographing and fingerprinting.

Justice Scalia authored a scathing dissent, writing that, “Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the “identity” of the flying public), applies for a driver’s license, or attends a public school. Perhaps the construction of a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.”

King was a Maryland resident arrested for assault. King’s DNA was taken at his arrest and matched with DNA from an unsolved 2003 rape, for which he was tried and convicted.

King challenged the Maryland law that permitted the taking of his DNA sample as a violation of the Fourth Amendment, which provides that persons are to be secure against unreasonable searches and seizures.

Twenty eight states and the federal government currently have similar laws on the books, although the particulars of each law varies.

The Maryland law enables police to collect DNA samples from a person charged with a crime of violence and certain other crimes. The DNA is taken by swabbing the inside of a person’s cheek with a q-tip. The law requires that the sample is destroyed where the outcome of the case does not result in a conviction. The Court’s decision, however, does not mean that police are required to destroy the evidence if there is no conviction.

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The use of a cheek swab to take DNA is undoubtedly a search, as any physical intrusion into the body constitutes a search. Because the arrest would presumably be supported by probable cause, the government would not need what is called individualized suspicion to conduct the search. The question, therefore, was whether such a search is reasonable.  To determine reasonableness, the Court balances privacy-related concerns with law enforcement interests.

The Court focused on the government’s interest in making accurate identifications of arrested persons and their efficient processing. The routine identification process of a person in lawful custody has long involved photographing and fingerprinting the person.  DNA is a more accurate form of identification, the Court wrote, and a cheek swab is not significantly more intrusive than the other two accepted methods of the booking process.

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The dissent attacked the majority’s reasoning that identification of a suspect is the main purpose of taking DNA samples, “The Maryland regulations implementing the Act confirm what is now monotonously obvious: These DNA searches have nothing to do with identification.” Fingerprints are processed in about a half hour, while DNA samples take months to process, so using a DNA sample to make a fast and reliable identification is impractical. The dissent pointed out that fingerprinting is used to identify the suspects and sometimes leads to solving crimes, whereas DNA samples are used to solve unsolved crimes, and nothing else.

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