In a 5-4 decision issued earlier this week, the United States Supreme Court held that taking a DNA swab from persons arrested for a serious offense is a legitimate booking procedure that is reasonable under the Fourth Amendment. In April, TAS published an article that I wrote discussing the briefs and oral argument. At that time, it was not clear how the Court would rule.
Writing for the majority, which included Chief Justice Roberts and Justices Thomas, Breyer, and Alito, Justice Kennedy concluded that the governmental interests supporting the testing were substantial, and that the intrusion on the arrestee’s privacy interest was minimal. Those governmental interests include establishing the identity of the arrestee and deciding whether pretrial detention is warranted. Justice Kennedy explained that using DNA evidence to identify an arrestee “is no different than matching an arrestee’s face to a wanted poster of a previously unidentified suspect; or matching tattoos to known gang symbols to reveal a criminal affiliation; or matching the arrestee’s fingerprints to those recovered from a crime scene.” In addition, running the DNA sample through the Combined DNA Index System can help solve cold crimes and exonerate innocent people who have been charged with a crime.
Justice Scalia’s dissent has attracted most of the attention from the conservative media. He viewed the taking of the sample as part a warrantless, suspicionless search designed to detect ordinary criminal wrongdoing and dismissed the identification rationale as “tax[ing] the credulity of the credulous.” More important, Justice Scalia rejected the notion that DNA testing would stop with arrestees of serious crimes if found to be constitutional.
In that regard, while Maryland’s statute permits DNA testing for those arrested of certain specified serious offenses, the United States told the Court that it “collects DNA samples from all of its arrestees” in its amicus brief (these quotes are on page 5 of the brief). It also told the Court that, again unlike Maryland which deletes the sample if the arrestee is not convicted, “federal arrestees who are not convicted must affirmatively request expungement.”
Justice Scalia observed, “If one believes that DNA will ‘identify’ someone arrested for assault, he must believe that it will ‘identify’ someone arrested for a traffic offense.” Maybe, that’s something to be decided in a future case.