SCOTUS Upholds DNA Testing for Arrestees

The Supreme Court handed down another controversial 5-4 ruling on Monday morning, but this was not the usual lineup. The court ruled that it was constitutional for the police to take a cheek swab DNA sample and enter it into a federal database when someone is arrested for a violent crime. You can read the full ruling here.

The case involves a man named Alonzo King in Maryland, who was arrested for assault. The police, pursuant to state law, took a DNA sample and entered it into the FBI’s Combined DNA Index System (CODIS) and discovered that it matched the DNA in a rape six years earlier. He was then charged and convicted of that rape, but he challenged the constitutionality of the DNA test. A state appeals court overturned the conviction but the Supreme Court has now overturned that ruling and upheld it. Justice Kennedy wrote the majority opinion, joined by Alito, Roberts, Thomas and Breyer. Justice Scalia wrote the dissent, joined by Ginsburg, Sotomayor and Kagan.

Scalia? Yep. He actually has a pretty good record on 4th Amendment search and seizure cases. And Breyer, though he is generally a liberal, has a fairly poor record when it comes to criminal justice issues. So while this might seem like an unexpected lineup, I’m not surprised by it. From the syllabus of the majority opinion:

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.

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.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 intrusio[n] beneath the skin,” Winston v. Lee, 470 U. S. 753, 760, and poses no threat to the arrestee’s “health or safety.”

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.”…

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.” County of Riverside v. McLaughlin, 500 U. S. 44, 58. 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.

This will come as a surprise, perhaps, but I’m mostly okay with this. I think the comparison to fingerprinting is a valid one. Fingerprints can and are used for the same purpose. When someone is arrested, their prints go into a database and can be compared to those found at other crime scenes and, if there is a match, that person can then be charged with that crime as well. That’s the same thing that happened here.

But here’s where I have the problem with it. Four of the five justice in the majority in this case (Roberts, Alito, Kennedy and Thomas) ruled in 2009 that someone who is convicted has no due process right to access DNA evidence that can be tested to prove their innocence. So in this case they’re arguing that DNA is an “important advance” for law enforcement in “identifying arrestees” and therefore they must have access to DNA, but they explicitly denied such access for the accused criminal.

If DNA access is crucial to determining guilt — and it is — then why does that only count for the police and not for the accused? This is precisely the kind of inconsistency that has plagued the court’s criminal justice rulings for decades. But the 4th Amendment was intended to be a set of limits on the government, not on the individual. The Supreme Court seems to forget that all too often.

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  • cottonnero

    Scalia is like the inverse Obama: good on the 4th amendment, shit pretty much everywhere else.

  • I’m disappointed in this ruling, but you are correct: fingerprinting has been allowed for decades, so there is little room for denying other biometrics.

    What was the name of the 2009 case? It strikes me as very odd that even the current makeup of the court would say that evidence can only be used to convict and not prove innocence.

  • psweet

    I’m less okay with this. Ed, how can anyone actually believe that taking DNA is equivalent to taking fingerprints? I suppose if there was some way of actually ensuring that the only thing the DNA will be used for is identification there would be a point, but with all of the concern about privacy of DNA results in other settings, that seems incredibly naïve.

  • gshelley

    The fingerprinting analogy seems good, but I do have concerns (which may have been addressed, I haven’t had time to read the ruling)

    how long do the police have once they have taken the sample? Fingerprints can be entered in a database pretty much straight away, but DNA processing takes time. What if the person is released without charge before the DNA is processed? What if it has been processed, but hasn’t been submitted? I would imagine that even the Conservatives wouldn’t approve of a national DNA database of anyone ever accused of a crime, though I am not too sure.

  • slc1

    Re Gregory @ #2

    The ruling only applied to post conviction DNA results. In most jurisdictions, the prosecution is required to turn over DNA results prior to a trial or plea bargain. The problem comes in in cases where the prosecution had biological evidence but failed to order DNA tests prior to trial or plea bargain, or the technology was not such as to permit DNA tests prior to trial or plea bargain. As an example, back in the 1980s where RFLP, which requires a much larger sample of DNA then current technology, was the only test available, defendants were out of luck if the sample size was too small. When PCR, which supports a much smaller sample then RFLP became available in the 1990s, the issue is whether post conviction PCR tests could be ordered on biological evidence which was not amenable to the previous technology.

  • freemage

    Yeah, I’m more annoyed by the fact that they didn’t take the opportunity here to say, “Oh, by the way, we were all on crack in 2009 and if a convict wants to pay for a DNA test to gain new evidence they can totes do so.”

  • Vall

    Doesn’t this ruling stomp all over the 5th amendment? What happened to Alonzo King’s right to not incriminate himself? I think once convicted, a DNA sample would be fair, but not until then.

  • I’m mostly okay with this ruling, but psweet raises a valid objection: DNA tells you a LOT more about a person than fingerprints or an ID card — a lot of information that’s not likely to be pertinent to any criminal-justice action at any level. That is, in fact, not merely identifying information, but personal health information that ordinarily should be considered confidential between doctor and patient. And once that personal information is in someone’s database, one really doesn’t have a lot of options for monitoring or controlling who sees it or how it ends up being used.

  • Vall

    @5 slc1

    “The ruling only applied to post conviction DNA results.”

    Why do you think that?

  • erichoug

    I keep thinking about the criminal justice system and what can make it better. It seems that Ed is right about this issue as well as the 2009 case. Shouldn’t prosecutors be at least as interested in making sure the person they convict is the right person as they are in actually convicting them? If, for instance, you convict the wrong person as a serial rapist and then a week after he is sentenced and sent off the real rapist attacks another woman, didn’t you in fact assist in that crime by not actively seeking out the right person? So turning over DNA evidence that exonerated someone is at least as important as using it to convict someone.

  • StevoR : Free West Papua, free Tibet, let the Chagossians return!

    Far as I’m concerned, I reckon we should give the police whatever powers they need to have to stop criminals hurting and killing other humans. I might just be convinced to stop at the point of giving them the right to administer summary capital punishment -anything much short of that, not-so-much.

    Hint : Don’t comitt crimes and you shouldn’t have anything to worry about.

  • StevoR : Free West Papua, free Tibet, let the Chagossians return!

    Where’s the sympathy and respect for victims of crime here?

  • rory

    So, Stevo, just to be clear: you’re arguing that if you’re innocent, you have nothing to fear?

    Well, problem solved, then!

  • erk12

    I think the concerns of psweet @3 and Raging Bee @8 are similar: “And once that personal information is in someone’s database, one really doesn’t have a lot of options for monitoring or controlling who sees it or how it ends up being used.”

    The thing is, it is not your DNA which is stored in the database. I would potentially be more concerned with what happens to the original sample. That is because the sequences amplified to give you the “DNA fingerprint” and sequences which can potentially reveal, for example, your susceptibility to breast cancer are usually entirely different. The profile from your fingerprint is stored in the database (i.e. SequenceA is x bases long, SequenceB is y bases long etc.), but not the actual DNA. All other potential medical info is in the swab. To get other potential medical information, you need to go back to the original buccal swab and amplify and actually read the order (not just length) of a particular gene segment.

    It’s possible for the gov’t to do that, but I can’t imagine why they would care to. But for safety it’s probably a good idea for laws to specifically limit the info collected to obtaining “DNA fingerprint” information, and specifically disallowing potential medical info unless it is directly relevant to the case.

  • gopiballava


    “Where’s the sympathy and respect for victims of crime here?”

    Right next to my support for Tibetan freedom: it’s not actually the topic of conversation so I haven’t felt the need to bring it up.

  • lofgren

    I think both gShelley and pSweet bring up important points. I wish I had time to delve into this right now, but I don’t so instead I’ll do that really annoying thing where a person with the largest, most exahustively indexed database of knowledge at their fingertips leaves easily answer questions on a blog comment thread.

    Can your DNA really be stored if you’ve ever been processed? It seems like we might as well just go ahead and create a national DNA database if that’s the case.

    What if they compare your DNA to their database and discover that your parent/sibling/child/other has committed a crime? What if you have multiple siblings and they don’t know which one committed the crime? Is that probable cause to search/process/DNA swab every one of them? What if this reveals that you have an illegitimate child somewhere out there? Can they tell your wife that? Can they threaten to tell your wife that if you don’t give the kid up? This all sounds so far-fetched, but there are enough situations like this out there that some or more of them are going to turn up frequently enough that there ought to be protocol for them.

  • marcus

    StevoR @12 Don’t commit crimes and you shouldn’t have anything to worry about.

    Bwahahahahahahahaha! You must live on a planet where the police and government are totally honest and trustworthy and wouldn’t dream of beating a confession out of a suspect or falsifying evidence. I wish our police were all like that!

  • slc1

    Re Vall @ #9

    In most jurisdictions, the prosecution is already required to turn over the results of DNA tests to the defense (known as discovery). The issue that was raised in the 2009 litigation, as I understand it, strictly referred to post conviction evidence. I provided an example of a scenario which would involve such post conviction evidence.

    Re StevoR @ #11

    I can’t speak as to the Australian justice system but there have been all too many instances in the US of police officers planting evidence (e.g. throw down guns) on suspects and prosecutors hiding and failing to disclose exculpatory evidence to the defense (e.g. Mike Nifong withholding DNA evidence which exculpated the Duke lacrosse players). Anyone who reads this blog will be very familiar with such instances.

    There is also the attitude most famously proclaimed by the late and unlamented Dominick Dunne: even if a defendant is innocent of the charged crime, he/she was probably guilty of other crimes of which he/she was either not a suspect or where there was insufficient evidence so a wrongful conviction is often a makeup scenario,

  • eric

    Like Ed, I can’t get too heartbroken about this, mainly because I think it will help individual defendents’ rights in the long run. A lot of states are trying to refuse DNA testing in old cases. I think they will have a much harder time justifying that when they are simultaneously saying how important it is that they take people’s DNA. Over time, this should help reduce the false accusation rate and the (racial and social) inequities in our current law enforcement system.

    In fact it wouldn’t surprise me if states reversed course in the future and started cutting down their DNA collections programs…when they realize that DNA collection makes it really hard for prosecutors to close high profile cases on nothing but rhetorical flourish and dubious eyewitness testimony.

  • Vall

    @18 slc1

    Thank you for your response. I just assumed “SCOTUS Upholds DNA Testing for Arrestees” meant prior to conviction, not after. I’m not familiar with the 2009 litigation you are referring to, but the Alonzo King case this thread is discussing was police taking samples after he was arrested, but before he was convicted.

  • slc1

    Re Vall @ #20

    I understand that the post conviction scenarios is not relevant to the particular case as issue here. I guess I should have made it clear that the ruling referred to was the 2009 ruling on post conviction evidence, not the ruling yesterday by the court. I mentioned it because Brayton referred to the 2009 ruling also. Brayton has discussed the 2009 ruling on several occasions on this blog.

    I agree with Brayton on the correctness of the ruling yesterday as DNA analysis is analogous to fingerprints and police departments have been allowed to take the fingerprints of those arrested for a very long time. Had the court ruled the other way, that would have put the taking of fingerprints from those arrested in jeopardy.

  • What if they compare your DNA to their database and discover that your parent/sibling/child/other has committed a crime?

    They could investigate said relative; and if their investigation turns up more direct evidence, they could use that new evidence to at least get warrants and execute searches and/or arrests. The initial DNA sample alone, however, would most likely not constitute probable cause for any warrants.

  • baal

    Hey SteveR, I’ll be over later tonight to install a root kit on your computers, handhelds and phones. I’ll also be setting tracking devices on your car and radio collar tags on your kids. I’m sure you won’t mind since you’re a fine upstanding person and have nothing to hide ever and nothing that I could possibly spin with a little malice into an arrest or to artfully suggest you shouldn’t have your job.

    While my comment so far is extreme, the issue is one of where do you draw the line between effectively being a prisoner in your own home (police state) and being a free person.

    If all they store is a few markers, then I’m less concerned. DNA (the big molecules) isn’t just a piece of data like your hair color, however. It’s uses for other information about you have been growing for a long time and could tell the cops information about you that is not relevant to a case. Anytime personal information (privacy) is breached, I want the States hands tied as much as possible. The history of stored private info is that it gets misused. The only protection to have the data not collected in the first place.

  • David C Brayton

    Within the next ten years, it will cheap, quick and easy to identify someone by his DNA.. Justice Scalia was all worked up about the fact that, in this case, it wasn’t used that way. He has a point about the Court deciding a case that wasn’t before it. But his outrage as such tactics only occurs when he doesn’t like the result (e.g. Citizens United.

    So, if the DNA is used just for ID purposes, I’m probably OK with that. But I’m puzzled about why the majority opinion thought it was important that such testing is permitted only for “serious felony” arrests. Why does the constitutionality of the search depend on what the arrestee is accused of?

    The DNA is being used simply to identify a person. The Court’s reliance on the fact that DNA is being collected only in serious felony arrests is a restriction that is simply not warranted by the case law or the ‘touchstone’ of fourth amendment law, ‘reasonableness’. As the Court pointed out, “reasonableness is determined by weighing the promotion of legitimate governmental interests”against “the degree to which [the search intrudes upon an individual’s privacy.”

    The next case to visit the Supreme Court regarding DNA identification will not even mention ‘serious felony arrest’ as a restriction. (Mark my words! :-).

    And we are identified every time we fly an airplane, get pulled over by Smokey, apply for a marriage permit, apply for a construction permit, vote, etc. Currently, it is by some type of paperwork. But once DNA testing is cheap and easy, there is no constitutional impediment to using it everywhere. Airplane travel, traffic violations, applying for marriage licenses, etc. Every interaction with the government can result in the DNA sample being cross-checked against cold cases.

    And there are lots of other situations were the use of the genetic information will be found reasonable. In fact, there are several where it promotes compelling government interests.

    if we want to put a stop to voter fraud, every voter should be required to submit a DNA sample for identification. The collection of the DNA was reasonable and this is a compelling government interest, so it will be deemed constitutional. Same with stopping terrorism, so flying in commercial aircraft will require it

    And Congress will look at the informational goldmine in DNA and find all sorts of legitimate, important or compelling governmental interests.

    Sentences could be determined based on a person’s predisposition to addiction, which is associated with all sorts of bad behavior. Reducing violence and recidivism advances important government interests and will be deemed constitutional.

    The government will be able to identify everyone that has the BRCA genes. Imagine getting a friendly reminder from the government that you should get a mammogram. But this will be deemed reasonable because with government is footing the bill for health care, the government should encourage preventative care. In other words, will be deemed constitutional because the use of the info is promoting two important government interests–protecting the lives of its citizens and reducing health care costs.

    So, I am much more worried about the implications than the actual holding.

  • Matrim

    Shouldn’t prosecutors be at least as interested in making sure the person they convict is the right person as they are in actually convicting them? If, for instance, you convict the wrong person as a serial rapist and then a week after he is sentenced and sent off the real rapist attacks another woman, didn’t you in fact assist in that crime by not actively seeking out the right person? So turning over DNA evidence that exonerated someone is at least as important as using it to convict someone.

    Problem is that’s not how it works. In general prosecutors are concerned with gaining convictions, not serving justice. If they can make a case against someone, they generally will unless there is a big flashing neon sign of a reason not to. I can’t speak as to the actual feelings of individual ADAs and DAs, but these sorts of railroadings happen all too frequently. I’m sure there are plenty of good prosecutors out there who just want to protect people from the baddies, just like there are plenty of cops who want to do likewise. The problem is the system they participate in is fundamentally flawed and tends to corrupt those who work in it.

  • wilsim

    @David C Brayton – we are all already identified by our photos, fingerprints, state issued IDs, social security numbers and numerous other things already by our government. Seriously, I do not have a huge problem with any one of the things you listed.

    For example, in your BRCA gene example – I wouldn’t mind getting a reminder from the government assuming it is from the health care department and not from the health insurance department.

    I realize I may be in the tiny minority in this, but I believe the government does have a strong compelling interest to solve cold case crimes and apprehend and detain particular individuals who’s DNA matches DNA collected from previous crimes. They should not have limited it to felonious arrests, but all arrests, because DNA identification is the most accurate out of any other method currently in use.

  • lochaber

    I dunno… I’ve already got issues with the way fingerprints are handled (most of the current use of fingerprint evidence wouldn’t hold up to typical peer-review standards). Cops have been noted to arrest people (who are later released without charges, or given minimal fines or something) for the sole purpose of expanding the fingerprint database.

    Also, DNA evidence would be _extremely_ easy to gather and plant on crime scenes, which could bring up a whole other host of problems…

    I understand there is a lot to be gained by using DNA evidence particularly towards rape cases, but I feel there is much more to be gained by simply taking claims seriously, and stopping the damned victim blaming, etc.

    A lot of this comes to my personal distrust of cops – they’ve repeatedly proven to be corrupt, dishonest, and not at all interested in justice. I’m loathe to see them granted any more powers/abilities without first putting in some massive oversight and accountability.


  • Just a question, they’re not actually storing the sample are they? Is it even possible to reconstruct someones DNA from a bunch of 1’s and 0’s stored on a database to be used to plant evidence at a crime scene?

  • slc1

    Re nathanloudon @ #28

    As we sit here today, it is not possible to use stored digital data to plant evidence at a crime scene. Actual biological evidence is required. However, the possibility of someone substituting stored digital data for extracted digital data by someone with access to both in the police agency cannot be ignored.

  • EnlightenmentLiberal – formerly codemonkey

    @David C Brayton

    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.

    Remember films portraying WW2 era Germany, and the SS go around asking “papers please”? If the fourth amendment is meant to protect against anything, it is meant to protect against that.

    How anyone can miss the memo is beyond me. The text – and intent – is more than clear.

    It is not saying that cases should be decided by weighing annoyance and inconvenience against the ability to catch criminals, as modern SCOTUS rules. That misses the whole point. It is designed to protect us against a police state, as any government with sufficient power can easily be subverted. Like the rest of the constitution, the fourth amendment is part of a limited government doctrine, where we try to keep the government as weak as possible while still sufficiently and adequately performing its functions.

    This “reasonableness” standard of the modern SCOTUS is a complete fiction, entirely devoid from any precedent, purpose, understanding, intent, common reading, or any other sane judicial standard.

    It’s not just this. It’s been building for a while. I remember the recent SCOTUS decision that said roadside sobriety checkpoints are legal. Complete bullshit.