4th Jun 2013
By a 5-4 vote, the U.S. Supreme Court has upheld a Maryland law that allows police to collect DNA, without first getting a warrant, from persons who are arrested.
“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,” writes Justice Anthony Kennedy in an opinion joined by Chief Justice John Roberts and associate justices Clarence Thomas, Stephen Breyer and Samuel Alito.
The dissenting opinion brought together an unsual quartet: conservative Justice Antonin Scalia and liberal justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Scalia, writing for those justices, says that:
“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.”
To Scalia and the other dissenters, the Fourth Amendment’s prohibition against “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 … is categorical and without exception.”