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Kenya Law / Blog / Case Summary: DNA Swabbing of Arrestee’s is Permissible in the United States Where Probable Cause upon Arrest is Established

DNA Swabbing of Arrestee’s is Permissible in the United States Where Probable Cause upon Arrest is Established

Maryland v. King Appeal No 12–207.

Supreme Court of the United States

Roberts G., (C.J), Scalia A. (A.J) Kennedy A. (A.J), Thomas C (A.J), Ginsburg R. B (A.J), Breyer S. (A.J) Alito S. (A.J) Sotomayor S (A.J) Kagan E. (A.J)

June 3, 2013

Reported by Monica Achode


-          Whether the procedure of taking and analyzing a cheek swab of an arrestee’s DNA upon making an arrest was reasonable under the Fourth Amendment

Constitutional Law – breach of fundamental bill of rights – infringement of the arrestee’s Fourth Amendment right to be secure in his person – where the arresting officers had taken a DNA swab from the arrestee while detaining him at the station – circumstances under which an arresting officer may take a DNA sample from an arrestee – balance of reasonableness – whether the procedure of taking and analyzing a cheek swab of an arrestee’s DNA upon making an arrest was reasonable under the Fourth Amendment

The Fourth Amendment of the Constitution of the United States of America

“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.”

Brief History

After his 2009 arrest on first and second degree assault charges, the respondent King was processed through a Wicomico County, Maryland, facility, where 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. He moved to suppress the DNA match, arguing that the Act violated the Fourth Amendment, but the Circuit Court Judge found the law constitutional. 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. Maryland State appealed against this decision.


(Majority Decision: Kennedy, joined by Roberts, Thomas, Breyer, Alito)

  1. When 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.
  2. DNA testing may “significantly improve both the criminal justice system and police investigative practices,” by making it “possible to determine whether a biological tissue matches a suspect with near certainty,”. Maryland’s Act authorizes law enforcement authorities to collect DNA samples from, as relevant here, persons charged with violent crimes, including first-degree assault.
  3. A sample may not be added to a database before an individual is arraigned, and it must be destroyed if, e.g., he is not convicted. Only identity information may be added to the database. Here, 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,”. Respondent’s identification as the rapist resulted in part through the operation of the Combined DNA Index System (CODIS), which connects DNA laboratories at the local, state, and national level, and which standardizes the points of comparison, i.e., loci, used in DNA analysis.
  4. 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, “the ultimate measure of the constitutionality of a governmental search”. Because 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”.
  5. 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.
    1. 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. “probable cause provides legal justification for arresting a suspect, and for a brief period of detention to take the administrative steps incident to arrest,” “validity of the search of a person incident to a lawful arrest” is settled. Individual suspicion is not necessary. The “routine administrative procedure[s] at a police station house incident to booking and jailing the suspect” have different origins and different constitutional justifications than, say, the search of a place not incident to arrest, “fair probability that contraband or evidence of a crime will be found in a particular place,” And when probable cause exists to remove an individual from the normal channels of society and hold him in legal custody, DNA identification plays a critical role in serving those interests. First, the government has an interest in properly identifying “who has been arrested and who is being tried.”

Criminal history is critical to officers who are processing a suspect for detention. They already seek identity information through routine and accepted means: comparing booking photographs to sketch artists’ depictions, showing mug shots to potential witnesses, and comparing fingerprints against electronic databases of known criminals and unsolved crimes. The 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.

Second, officers must ensure that the custody of an arrestee does not create inordinate “risks for facility staff, for the existing detainee population, and for a new detainee.” DNA allows officers to know the type of person being detained.

Third, “the Government has a substantial interest in ensuring that persons accused of crimes are available for trials.” An arrestee may be more inclined to flee if he thinks that continued contact with the criminal justice system may expose another serious offense.

Fourth, an arrestee’s past conduct is essential to assessing the danger he poses to the public, which will inform a court’s bail determination. Knowing that the defendant is wanted for a previous violent crime based on DNA identification may be especially probative in this regard.

Finally, in the interests of justice, identifying an arrestee as the perpetrator of some heinous crime may have the salutary effect of freeing a person wrongfully imprisoned.

  1. 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.” However, DNA identification is far superior. The additional intrusion upon the arrestee’s privacy beyond that associated with fingerprinting is not significant, and DNA identification is markedly more accurate. It may not be as fast as fingerprinting, but rapid fingerprint analysis is itself of recent vintage, and the question of how long it takes to process identifying information goes to the efficacy of the search for its purpose of prompt identification, not the constitutionality of the search. Rapid technical advances are also reducing DNA processing times.
  2. Respondent’s privacy interests do not outweigh the government’s interest.
    1. 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. Such searches thus differ from the so-called special needs searches of, e.g., otherwise law-abiding motorists at checkpoints. The reasonableness inquiry considers two other circumstances in which particularized suspicion is not categorically required: “diminished expectations of privacy [and a] minimal intrusion.” An invasive surgery may raise privacy concerns weighty enough for the search to require a warrant, notwithstanding the arrestee’s diminished privacy expectations, but a buccal swab, which involves a brief and minimal intrusion with “virtually no risk, trauma, or pain,” does not increase the indignity already attendant to normal incidents of arrest.
    2. 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.

(Dissenting opinion: Scalia, joined by Ginsburg, Sotomayor, Kagan)

  1. The fourth Amendment forbade the searching of a person for the evidence of a crime where there was no basis for believing the person was guilty of the crime or was in possession of incriminating evidence. That prohibition was categorical and without exception; it lay at the very heart of the Fourth Amendment. Whenever the Court had allowed a suspicion-less search, it insisted upon a justifying motive apart from the investigation of crime. It is obvious that no such non-investigative motive existed in this case. The Court’s assertion that DNA was being taken, not to solve crimes, but to identify those in the State’s custody, taxed the credulity of the credulous. The Court’s comparison of Maryland’s DNA searches to other techniques, such as fingerprinting, seemed apt only to those who knew no more than what the opinion chose to tell them about how those DNA searches actually worked.
  2. The Court is correct to note that there were instances in which it had permitted searches without individualized suspicion; in none of these cases did it indicate approval of a search whose primary purpose was to detect evidence of ordinary criminal wrongdoing. That limitation was crucial as it was only when a governmental purpose aside from crime solving was at stake that we engage in the free-form “reasonableness” inquiry that the Court indulged at length. Both the legitimacy of the Court’s method and the correctness of its outcome hinge entirely on the truth of a single proposition: that the primary purpose of these searches was something other than simply discovering evidence of criminal wrongdoing. That proposition is wrong.
  3. If identifying someone meant finding out what unsolved crimes he had committed, then identification was indistinguishable from the ordinary law enforcement aims that have never been thought to justify a suspicion-less search. The portion of the Court’s opinion that explained the identification rationale was strangely silent on the actual workings of the DNA search at issue here.
  4. That taking the DNA samples from arrestees had nothing to do with identifying them was confirmed not just by actual practice but also by the enabling statute itself. DNA testing did not even begin until after arraignment and bail decisions are already made. The Act forbade the Court’s purpose (identification), but prescribed as its purpose what our suspicion-less search cases forbade (“official investigation into a crime”). Against all of that, it is safe to say that the Court’s identification theory is not wrong.

Appeal Allowed, in light of the context of a valid arrest supported by probable cause respondent’s expectations of privacy were not offended by the minor intrusion of a brief swab of his cheeks.

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