Privacy SOS

Supreme Court clears the way for warrantless DNA swabs after arrest

This guest blog was written by Andrea Lance of Lance Law, LLC

On Monday, the Supreme Court announced its decision in Maryland v King, holding that “DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure.” In 2009, Alonzo King was arrested for assault, and was subjected to a cheek swab for a DNA sample pursuant to a Maryland statute. The results matched a DNA sample of the perpetrator of an unsolved 2003 rape. King was convicted of the rape and appealed his conviction, on grounds that the statute allowing DNA swabbing at the time of arrest violated the Fourth Amendment.

The Court rested its decision on the idea that DNA testing of arrestees could be used to help “identify” them, comparing DNA to mug shots or fingerprints. The Court reasoned that DNA provided “identification”, which served the government interest of avoiding undue risks to the safety of law enforcement officers and other detainees. Forcing a “special need” was necessary because the Fourth Amendment prohibits searching for evidence of a crime without individualized suspicion, unless there is a justifying motive apart from the investigation of crime. (Searches of arrestees incident to arrest are conducted to recover weapons and evidence of the crime for which the individual is under arrest, which involve safety or are supported by suspicion, respectively.) The DNA sample did not identify King in this case.

In fact, the statute at issue prohibited entering arrestee DNA samples into the state database until after arraignment, and the sample was not submitted for testing until three months after King’s arrest, countering the Court’s imagined identification and safety purposes to justify the statute.

The Court’s true intention of solving open cases is obvious from the first paragraph of the decision, where Justice Kennedy, writing for the majority, set the scene with the facts of the unsolved rape rather than the circumstances that gave rise to the DNA swabbing. This framed the discussion around bringing King to justice for his past violent crime, rather than analyzing the constitutionality of the Fourth Amendment search. Justice Scalia, joined by Justices Ginsburg, Sotomayor, and Kagan, wrote a scathing dissent criticizing the majority’s lack of candor and at times outright misrepresentation of the procedures and uses of DNA.

The Court’s rationale goes beyond manufacturing purposes for the statute; the opinion openly misrepresents how the DNA samples are used. As Justice Scalia points out, the Combined DNA Index System (CODIS) compares new samples from arrestees and convicts against evidence from unsolved crimes, not against other arrestees and convicts. This identifies not the individual who submitted the sample, but the identity of the individual whose DNA is evidence in an unsolved crime, through its connection to the arrestee – whose identity is already known.

As Justice Scalia noted, “If identifying someone means finding out what unsolved crimes he has committed, then identification is indistinguishable from the ordinary law-enforcement aims that have never been thought to justify a suspicionless search.”

Even more disturbing is the Court’s appeal to the due process-minded with the false reassurance that this “may have the salutary effect of freeing a person wrongfully imprisoned.” Justice Scalia corrects this misstatement, clarifying that “this procedure has nothing to do with exonerating the wrongfully convicted, as the Court soothingly promises… The FBI CODIS database includes DNA from unsolved crimes. I know of no indication (and the Court cites none) that it also includes DNA from all – or even any – crimes whose perpetrators have been convicted.”

Is the Court not aware of the basic machinations of cataloguing evidence? Having been disabused of this misconception, would the Court propose law enforcement test evidence from convictions obtained before DNA testing was possible? The mission of the Innocence Project is to file motions to request just this type of testing on a case-by-case basis – because the government is reluctant to burden itself with reconsidering closed cases, even though over 300 people have been exonerated by DNA testing.

The Court maintains that there will be limitations on what information is added to the database and how it may be used, but these promises contradict the Court’s rationale. For instance, the Court claims that the only sections of DNA samples to be stored will be the “noncoding” portions containing identifying information, as opposed to “coding” sections containing comprehensive genetic information. The Court fails to offer an explanation for how this will happen or can be confirmed. The Court also declares that familial searches will be prohibited.

But if the goal is to “identify” those in custody, then there is little to preclude law enforcement from using the same public policy arguments to conduct genetic profile and familial relation searches. And if the goal is to solve more open crimes, Justice Scalia notes that requiring DNA from airplane passengers, driver’s license applicants, or public school students would also be effective.  

The Court seems inclined to expand the categories of individuals to subject to DNA collection, reminding us that “[i]t is a common occurrence that ‘[p]eople detained for minor offenses can turn out to be the most devious and dangerous criminals’”, and offering anecdotes that Oklahoma City bomber Timothy McVeigh, serial killer Joel Rifkin, and one of the September 11th terrorists were all stopped for minor traffic offenses.

As Scalia warns: “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 critical question in this case is whether the diminished interest in privacy making it reasonable to require a DNA sample should be extended from convicts to those merely arrested, in order to consider them as suspects in every unsolved crime in which there is DNA evidence. This constitutes an enduring assault on the presumption of innocence, subjecting individuals to suspicionless searches any time law enforcement searches the database.

If DNA swabs occur for the Court’s stated identification and safety purposes, the samples should be obtained and processed as soon as an arrestee is booked into custody, without the benefit of review of the arrest by a neutral magistrate. If law enforcement waits for a determination of the validity of the arrest, the “special needs” cannot be credibly said to exist. Justice Scalia highlights the danger of this holding:

…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.

From the tenor of the Court’s decision, one would think that there is an epidemic of unsolved crimes and empty prisons. This culture of fear is reinforced by crime dramas such as “CSI” and “Law & Order.” Unfortunately, the underfunding of indigent defense and improving communication between agencies do not make for entertaining television. Law enforcement’s obsession with collecting more personal information about citizens while ignoring other means to improve the administration of justice reveals the political goal of obtaining more convictions over ensuring accuracy of prosecution.

Justice Scalia’s dissent seeks to refocus our priorities: ”Solving unsolved crimes is a noble objective, but it occupies a lower place in the American Pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches. The Fourth Amendment must prevail.” 

© 2021 ACLU of Massachusetts.