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Jun 4, 2013

DNA: Divided Court Turns the Other Cheek

  • A divided U.S. Supreme Court sided with the state of Maryland, and much of the nation’s law enforcement community, by ruling yesterday that authorities can take the DNA of criminal suspects upon arrest but before they are convicted of a crime.

    At issue in State of Maryland v. Alonzo Jay King Jr. was whether the U.S. Constitution’s Fourth Amendment allows warrantless collection and analysis of DNA from a suspect arrested but not convicted of crimes, solely for investigating other offenses for which no individual has been charged.

    By a 5–4 majority, justices of the high court sided with Maryland officials, who maintained that the state acted properly when it collected DNA by swabbing King’s cheek when he was arrested in Maryland’s Wicomico County in 2009—a year after the state expanded DNA sample collection to include suspects of felony first-degree assault.

    King was arrested on that charge, later dropped, and a misdemeanor or second-degree assault charge of which he was initially convicted.

    “DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure,” the Supreme Court held in a majority ruling written by Justice Anthony Kennedy, and supported by Chief Justice John G. Roberts Jr. and Justices Samuel A. Alito Jr., Stephen G. Breyer, and Clarence Thomas.

    “When officers make an arrest supported by probable cause to hold for a serious offense and they 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,” the majority held.

    In a dissenting opinion, Justice Antonin Scalia said the taking of DNA samples from persons not convicted of crimes was akin to searching for evidence of a crime without basis for believing they were guilty or had incrimi­nating evidence, thus violating the Fourth Amendment.

    “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,” wrote Scalia in his dissent, which was supported by Justices Ruth Bader Ginsburg, Elena Kagan, and Sonia Sotomayor. “Make no mistake about it: As an entirely predictable conse­quence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.”

    The case was watched closely by the federal government and 28 states including Maryland, because they collect and analyze DNA data from people upon arrest. That was also the practice of Great Britain until 2008, when the European Court of Human Rights declared it a violation of human rights.

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