Supreme Court

Supreme Court Allows Police to Collect DNA Samples from Arrestees

Scalia dissents, joined by Ginsburg, Sotomayor, and Kagan.


In a 5-4 decision handed down today in the case of Maryland v. King, the U.S. Supreme Court held that the 4th Amendment does not prevent law enforcement officials from obtaining and testing DNA samples from individuals arrested for serious crimes. According to the majority opinion of Justice Anthony Kennedy, which was joined by Chief Justice John Roberts and Justices Clarence Thomas, Stephen Breyer, and Samuel Alito, the use of a Q-tip to swab the inside cheek of an arrested suspect "is 'no more than an extension of methods of identification long used in dealing with persons under arrest,'" such as fingerprinting, and therefore constitutionally permissible. "In the balance of reasonableness required by the Fourth Amendment," Kennedy's opinion continues, "the Court must give great weight both to the significant government interest at stake in the identification of arrestees and to the unmatched potential of DNA identification to serve that interest."

Writing in dissent, Justice Antonin Scalia, joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan, strongly rejected the majority's reasoning:

The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the 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. Whenever this Court has allowed a suspicionless search, it has insisted upon a justifying motive apart from the investigation of crime.

It is obvious that no such noninvestigative motive exists in this case. 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.  And the Court's comparison of Maryland's DNA searches to other techniques, such as fingerprinting, can seem apt only to those who know no more than today's opinion has chosen to tell them about how those DNA searches actually work.

The Supreme Court's opinion in Maryland v. King is available here.

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  1. arrested for serious crimes

    Is there a list of “serious crimes”, or is it within the discretion of the police to decide what falls into that category?

    1. See Scalia below. He says the court wont see any logical difference between a felony and a speeding ticket eventually.

      1. And he is daned right. This power will be abused because – Fuck you!, that’s why.

  2. Sotomayor seems to be the only consistent vote on the side of liberty on 4th Amendment issues.

    Scalia wrote a very good dissent. Hopefully his quote at the end rings true.

    1. Yeah – I am liking her more and more with every additional dissent on 4th amendment encroachments (most of them are most unfortunately dissents…). She seems to be far less of a “Team” judge than a judge who actually read and cares about the constitution. Her real test will be when a crucial decision about the 2nd amendment comes up. I have good hopes for her.

  3. jeebus, the noose gets tighter.

    1. I’m not sure. To me this really does seem analogous to fingerprints. Taking fingerprints and photographs for identification might also go beyond identification to solving a crime, but that doesn’t make them 4th Amendment violations. A Q-tip swab is only incrementally more of a “search” than those actions, and it seems like less of a search than “Empty your pockets.”

      Also, this just tosses it back to the states, which can require a warrant if they want. So I’m not really feeling the boot of the state on my neck in this case.

      1. OK, then. We see that you have a cold sore, so we’ll have to Q-tip your anus. Thanks for your cooperation.

      2. See Scalia’s dissent. Everything about “identification” in the majority opinion was a flat out lie. It would be illegal under MD law for them to use the DNA for identification, in fact.

        1. Is it unconstitutional to search a suspect’s fingerprints against unsolved crimes? This seems like the equivalent of that, and I would expect there to be ample case law.

          I haven’t googled the answer to this.

          1. Please do. We await your findings.

        2. Scalia does make a good case, and the fact that MD law limits what DNA can be used for is one of the strongest points. But “everything about ‘identification'” is not really a lie, and seems more like an argument about definitions. It’s hard for me to see this as a modern-day version of the “general warrants” of Revolutionary days.

          1. How is it not a lie?

            They cant use it until after arraignment. By arraignment time, they know who the fuck they have. There is no identification purpose to the DNA test in this case. They had every bit of information about him at the time of arraignment.

            It was FOUR fucking months after the arrest before they got any information from the DNA.

          2. The Maryland law limits using DNA for identification to corpses and missing persons.

            Criminals are not on the list.

            1. Like I said, that’s the strongest point. Re identification, I see your point, but nonetheless DNA is an identifier. I’m also not sure the length of time it took to process the DNA is a conclusive argument.

              To address Bubba’s point: Scalia says that fingerprints aren’t equivalent because they aren’t checked against latent prints found at unsolved crimes. So, if they were, then taking DNA would not be unconstitutional? Or, conversely, if the FBI did start checking arrestee prints against unknown latents, that would be unconstitutional? All this seems like a tricky question, and I am not sure where the Founders would have stood.

              1. Perhaps Scalia has your answer:

                “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.”

                1. As a matter of course, no. But as part of an arrest? I’m not so sure. And note that the fellow in the case had his DNA matched to an unsolved rape case.

              2. Ah, then if fingerprints aren’t used against latent prints, then DNA shouldn’t be used against unsolved crimes.

                And if they aren’t, then the DNA really is just like a fingerprint.

                1. “The swab was matched to an unsolved 2003 rape”

                  Yeah, that’s beyond the scope of ID.

                  1. if its not his spit, you must acquit.

      3. The big difference is that a DNA sample can tell you a lot more about a person than a fingerprint or picture. It can potentially reveal a lot of things that a person might not want others to know, so it is a much bigger invasion of privacy. In my mind the act of swabbing is irrelevant compared to what the swab reveals.

        1. The government isn’t going to spend the time and money necessary to extract and analyze the sequence information necessary to tell you anything beyond identification.

          1. Oh yea, that’s the ticket. We’ll just trust the government not to fuck us. Wake up, Bubba, it’ll be some pissant jackass that has an axe to grind that will sequence it to frame someone for a crime. For fuck’s sake, are you really that naive?

          2. I am far less worried about what the government extracts from DNA now vs. what they will in the future. In 8 to 10 years when they have the ability to more rapidly sequence DNA and better cataloging of it, you can bet this decision is going to be used to justify them storing complete sequenced DNA and using it to match against EVERY crime scene that turns up DNA. Not to mention that, but if they find certain conditions or markers in the DNA that correlate to higher rates of crime, you think they won’t use that?

  4. If you’ve done nothing wrong….



    1. If you’ve done nothing wrong, they can still arrest you for ‘suspicion’ and get you in the database. They just cut you loose once the DA doesn’t find something worth pursuing (ie a softball win).

      1. The WH is arguing that Holder/DOJ wrote the warrant against Rosen, NOT to prosecute him, but to get the search. “[T]here is probable cause to believe that the Reporter [Rosen] has committed or is committing a violation of section 739(d), as an aider and abettor and/or co-conspirator?”…..s-tyranny/

        Same BS standard will apply to all warrants in the future just to get your DNA into the Govt Database.

        Thanks SCOTUS – the Constitution is there to LIMIT the Govt, not citizens.

      2. Yeah this is going to be used when they find a suspect who refuses to give DNA but they can’t get a warrant because they have no probable cause. Simply follow the guy for a day or two and catch him during one of his “Three a Day.”

        Whoops – they got the wrong guy. BUT, looks like a hair of his was found and logged in the same house as an unsolved murder from 15 years ago. Everyone knows new Chiefs, Sheriffs, and DAs love to dust off those cold cases.

  5. What happened next? Reading the Court’s opinion, particularly its insistence that the search was necessary to know “who [had] been arrested,” ante, at 11, one might guess that King’s DNA was swiftly processed and his identity thereby confirmed?perhaps against some master database of known DNA profiles, as is done for fingerprints. After all, was not the suspicionless search here crucial to avoid “inordinate risks for facility staff” or to “existing detainee population,” ante, at 14? Surely, then? surely?the State of Maryland got cracking on those grave risks immediately, by rushing to identify King with his DNA as soon as possible.

    Nothing could be further from the truth. Maryland officials did not even begin the process of testing King’s DNA that day. Or, actually, the next day. Or the day after that. And that was for a simple reason: Maryland law forbids them to do so. A “DNA sample collected from an individual charged with a crime . . . may not be tested or placed in the statewide DNA data base system prior to the first scheduled arraignment date.”

    I think Scalia just called Kennedy a liar.

    1. Reading even more than what I quoted, its a brutal take down of the majority position. Absolutely brutal.

      1. Agreed.

        How about this gem, in the penultimate paragraph of his dissent:

        “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.”

  6. Let me guess: “No different than taking a photograph, or fingerprints.”

    1. Yea, the IRS/HHS won’t be able to see your DNA in this database as it administers the ACA to determine if you must pay more?no, the Govt would n-e-v-e-r violate that sanctity?#Govtoverreach

  7. According to the majority opinion …, the use of a Q-tip to swab the inside cheek of an arrested suspect “is ‘no more than an extension of methods of identification long used in dealing with persons under arrest,'” such as fingerprinting

    Emphasis added. With all due respect, what *isn’t*?

    Plus, with all due respect, 5-4 decisions suck. 8-(

    1. With all due respect, what *isn’t*?

      See my Scalia quote below, that is part of his argument.

      1. At the end of the day, logic will out.

        Ah, yes. “Logic.”

  8. “the significant government interest at stake”
    So if the state says ‘pretty please’, the constitution really doesn’t matter?

  9. Scalia is on fire, more fun from his dissent:

    The Court disguises the vast (and scary) scope of its
    holding by promising a limitation it cannot deliver. The
    Court repeatedly says that DNA testing, and entry into a
    national DNA registry, will not befall thee and me, dear
    reader, but only those arrested for “serious offense[s].”
    Ante, at 28; see also ante, at 1, 9, 14, 17, 22, 23, 24 (repeatedly limiting the analysis to “serious offenses”). I
    cannot imagine what principle could possibly justify this
    limitation, and the Court does not attempt to suggest any.
    If one believes that DNA will “identify” someone arrested
    for assault, he must believe that it will “identify” someone
    arrested for a traffic offense. This Court does not base its
    judgments on senseless distinctions. At the end of the
    day, logic will out. When there comes before us the taking
    of DNA from an arrestee for a traffic violation, the Court
    will predictably (and quite rightly) say, “We can find no
    significant difference between this case and King.” 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.


      1. Slippery slope is only a logical fallacy, not an actual fallacy.

      2. More like a reductio ad absurdum.

      3. AKA: ‘Just the tip’.

    2. This Court does not base its judgments on senseless distinctions.

      How cute.

  10. More from Scalia.

    All parties concede that it would have been entirely permissible, as far as the Fourth Amendment is concerned, for Maryland to take a sample of King’s DNA as a consequence of his conviction for second-degree assault. So the ironic result of the Court’s error is this: The only arrestees to whom the outcome here will ever make a difference are those who have been acquitted of the crime of arrest (so that their DNA could not have been taken upon conviction). In other words, this Act manages to burden uniquely the sole group for whom the Fourth Amendment’s protections ought to be most jealously guarded: people who are innocent of the State’s accusations.

  11. I see Thomas is still licking boot.

    1. As Thomas is usually accused of parroting Scalia, no. That does not excuse his joining the fascist majority.

      1. Thomas gets so many things right. But he always screws up these “law and order”/search kind of cases, doesn’t he?

  12. 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 such 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.

    1. ^^That is also Scalia, last one.

      1. He may have made some strong points previously, but this is just rhetorical flourish. Bringing fingerprints again into the conversation, are fingerprints of non-arrestees harvested? No (at least not by force). So until that door has officially been opened, DNA harvesting by the TSA is just a phantom spectre.

        1. fingerprints of non-arrestees harvested


          Apparently for drivers licenses in some places: CA, CO, GA, TX.

          1. And at many entrances to our bastion of freedom, at least for non US persons. Japan and others have reciprocated.

          2. Fingerprints are also required to get an NFA firearm.

          3. Are you familiar with the various attempts to institute a biometric identification system? Georgia was an early adopter of the system based on the threat of the Feds witholding funds from states that refused to implement such a system.

            A few years ago, our dear friends Chuck Schumer and Lindsey Graham revived the idea in the name of stopping illegal immigrants from getting jobs and a few of the usual suspects called for it again following the Boston Marathon bombing.

            One way or another, there’s going to be a national database.

            Under Obamacare, all of your medical records are going to be on a single database – for your convenience, of course, to make records easily transferable between healthcare providers – accessible to the government. I can easily imagine the CDC issuing a finding that crime is a public health issue and thereby justifying using the database for law enforcement purposes.

    2. Stop giving them ideas! DAMMIT!

    3. What about just paying your taxes? Doesn’t the IRS have a “significant government interest” in knowing the identity of those who file tax returns?

      What about applications for marriage licenses, adoption paperwork, public assistance, etc.?

  13. Even Thomas is dead wrong at times. This is one of them.

  14. I get to work easily. Go to the police.

  15. To cross then line from what can plainly be seen (general height & weight, hair color, skin tone, apparent sex) to what can only be intrusively / forcefully analyzed (fingerprints, DNA or TSA nudiscan images) there needs to be more than just an arrest, there needs to be a conviction.

    1. So if you leave bloody fingerprints all over the murder scene, you’re golden because until you’ve been convicted of that murder the cops can’t compare your fingerprints to the ones found at the scene?

      1. A somewhat different case than the generic dragnet that such data are actually being obtained and used for.

  16. What happened to Scalia? What happened to “new professionalism”?

    1. What happened to Sotomayor? Wasn’t she the one in re Florida v Harris that couldn’t imagine that cops would want drug dogs to be other than highly trained for accuracy? She can imagine that cops might use ID tests to conduct suspicionless searches but not drug dogs?

  17. It’s a well written, compelling dissent. In my neck of the woods, we have been taking DNA for all felony arrests, so I guess that’s what is meant by “serious crimes”. DNA offers a hell of a lot more in way of identifying characteristics than mere fingerprints, so the analogy is a wee bit stretched.

    Imo, DNA sampling upon CONVICTION should be ok, but not mere arrest, because DNA is not mere simple identifying characteristics like a photo or fingerprints

  18. “Is it unconstitutional to search a suspect’s fingerprints against unsolved crimes? This seems like the equivalent of that, and I would expect there to be ample case law.”

    absolutely not unconstitutional. This is a not uncommon way we get PC in many cases, especially with juvies who have never been fingerprinted before the arrest. Cases with a bunch of prints just waiting to be compared are often solved this way.

    The Green River Killer serial killer case was solved this way with post-arrest DNA as well.

    Back when the case was first investigated, they didn’t use DNA, but they had a bunch of stuff to sample. After Ridgway was arrested in the modern day and DNA swabs taken, comparisons were made and he was caught that way.

  19. Fuck the SCROTUS. That is all.

  20. If only our system of government had a legislative body that could pass a federal law making this illegal

  21. Ok, so I’ve perused the opinion, and googled up the fact that everyone who is arrested gets fingerprinted and added to the database. This database is routinely searched for matches to latent fingerprints of unsolved crimes.

    Meanwhile, the DNA sample is searched against latent samples only at the time of arrest, only if arrested for a “serious crime” whatever the hell that means, and the DNA fingerprint is not stored in the database permanently unless the suspect is convicted.

    Meanwhile your fingerprints are stored forever, even if you’re not convicted.

    I’m having trouble finding my libertarian outrage on this one.

    1. I’d agree with that…I’m not seeing a point of outrage here.

      All standard anarcho-capitalist vs. cosmotarian arguments aside, I believe the state has a compelling interest in catching the perpetrators of criminal acts. This case involves a man whose DNA swab tied him to a rape…a criminal act that violated some other person’s rights. Catching and punishing people who do this are what we pay the police to do…it’s the primary reason for their existence. I don’t see a swab of cheek DNA to be particularly intrusive, nor do I see it to be some major future threat to liberty for non-criminals (and I tend towards paranoia on government intentions).

      Sometimes I think we tend to miss the forest for the trees and get caught up in smaller battles while losing site of the overall context. The result of this case was a rapist being caught and convicted. If there is another case by which the government somehow uses these DNA swabs for nefarious purposes, that’s a different case to make…but I don’t think we should let a rapist walk from his crime now because we’re worried that the government *might* develop technology to abuse DNA in the future. That’s beyond the scope of this case.

    2. As for the analysis of the decision and dissent, I have to say that I find Scalia’s primary fault to be his reliance on the use of the term “suspicionless searches”. The case isn’t talking about someone who was simply questioned by police or stopped for a minor infraction…these are people who have been arrested and who are in the process of being booked. As Kennedy (correctly) points out, anything they have on them during the booking process is subject to search. If they find a bloody rag in the guy’s pocket when they’re booking him, with a murder victim’s blood on it, they don’t just throw it away because that wasn’t the crime he was arrested for. If he has drugs on him (again, ignoring the standard libertarian debate about the legitimacy of drug laws) they don’t ignore that simply because he wasn’t arrested for drugs. So why should a cheek swab be an exception?

      Everything police do when they’re booking someone after an arrest is about identification they’re actually making an arrest, there’s already suspicion about the person so it’s not a “suspicionless” search in any real sense. As Bubba noted, I don’t really see the outrage in police collecting a DNA swab when police already do something identical with fingerprints.

  22. Question: is it more likely to be falsely convicted based on faulty fingerprint identification or faulty DNA identification? If it’s faulty fingerprints, then maybe fingerprinting should be discontinued in favor of DNA in order to protect more of the innocent.

  23. Are libertarians ready to stop pimping for Thomas yet?

  24. Scalia seems off base here. Fingerprints and DNA can both be used for positive identification and for solving crimes. If DNA is verboten, then fingerprints must be verboten, too.

    He is also off base when he refers to the “…no basis for believing the person is guilty of the crime…”. Clearly, to be arrested is to suggest that the police have a basis for making the arrest.

    It would be better to press for laws requiring that finger prints and DNA be expunged if the arrestee is shown to be innocent.

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