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Supreme Court rules police can take DNA samples after arrests

Updated: 2013-06-04T05:45:41Z


The New York Times, The Kansas City Star

— Police may take DNA samples from people arrested for serious crimes, the Supreme Court ruled Monday in a 5-4 decision.

The federal government and 28 states, including Missouri and Kansas, authorize the practice. Law enforcement officials say it is a valuable tool for investigating unsolved crimes, but the court said the testing was justified by something else: to solidly identify the suspect in custody.

“When officers make an arrest supported by probable cause to hold for a serious offense and they 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,” Justice Anthony M. Kennedy wrote for the majority.

Justice Antonin Scalia summarized his dissent from the bench, a rare move signaling deep disagreement. He accused the majority of an unsuccessful sleight of hand that “taxes the credulity of the credulous.” He said the point of DNA testing as it is practiced is to solve cold cases, not identify the suspect in custody.

But Scalia said the Fourth Amendment forbids searches without reasonable suspicion to gather evidence about an unrelated crime, a point the majority did not dispute.

“Make no mistake about it: Because of today’s decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason,” Scalia said from the bench.

In criminal justice circles, the ruling was greeted as a win for prosecutors and law enforcement and a loser for criminal defendants and their lawyers.

Since 2009, Missouri law has permitted authorities to take DNA from some arrestees. That includes people suspected of some violent and sex crimes, prostitution, domestic crimes, obscenity and first-degree burglary. Jackson County Prosecutor Jean Peters Baker said the ruling confirmed that what Missouri was doing was legal.

“It is good news, great news,” Baker said. “But as far as changing practice, it’s just going to confirm what we were doing.”

She said the ruling also could encourage the Missouri General Assembly to expand its definition of serious crime to allow more samples to be taken from more suspects.

John Picerno, a Kansas City criminal defense lawyer, called the new ruling “scary.”

“We’re always a little scared when they say there is no need for a warrant and just leave it up to law enforcement,” he said. “People forget that the Bill of Rights was put in place to limit the power of the state.”

Picerno predicted that defense lawyers soon would develop legal tactics to attack how police collect the DNA samples after arrests.

Likewise, Kansas City defense lawyer Dan Ross said the ruling makes him uncomfortable because it appears to take judges out of one part of the evidence-gathering loop.

Ross said he could imagine police arresting people on thin grounds, and then quickly releasing them, for the sole purpose of getting their DNA into the national database.

“I’d much rather have a judge making that decision,” Ross said.

Tom Gentry, a spokesman for the Independence Police Department, said police agencies would have to study the ruling and evaluate whether they have the technical capacity to gather so much new DNA evidence and analyze it promptly.

“I don’t know if it’s going to into full force for a while,” he said. “The agencies will have to get their own policies in place to handle it.”

The Supreme Court case featured an alignment of justices that scrambled the usual ideological alliances. Chief Justice John Roberts and Justices Clarence Thomas, Stephen Breyer and Samuel Alito joined the majority opinion. Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined Scalia’s dissent.

Scalia has been a strong voice for Fourth Amendment rights this term. In recent months, he joined his three liberal allies from Monday’s decision, along with other justices, to form majorities that limited the use of drug-sniffing dogs outside homes and the drawing of blood in drunken-driving investigations.

Breyer, who generally votes with the court’s liberal wing, was on the other side from his usual allies in all three of the recent Fourth Amendment decisions.

Monday’s ruling arose from the collection of DNA in 2009 from Alonzo Jay King Jr. after his arrest on assault charges in Wicomico County, Md. His DNA profile, obtained by swabbing his cheek, matched evidence from a 2003 rape case, and he was convicted of that crime.

The Maryland Court of Appeals ruled that a state law authorizing DNA collection from people who had been arrested but not yet convicted violated the Fourth Amendment’s prohibition of unreasonable searches.

Kennedy, writing for the majority, said the “quick and painless” swabbing procedure was a search under the Fourth Amendment, meaning it had to be justified as reasonable under the circumstances.

He said the search was reasonable, given “the need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody.”

Such identification, he said, “is no different than matching an arrestee’s face to a wanted poster of a previously unidentified suspect; or matching tattoos to known gang members to reveal a criminal affiliation; or matching the arrestee’s fingerprints to those recovered from a crime scene.”

The information retrieved through DNA testing as performed by law enforcement officials is limited, Kennedy wrote, and whether “the testing at issue in this case reveals any private medical information at all is open to dispute.”

In dissent, Scalia wrote the identification was not the point of the testing. King’s identity was thoroughly established before the DNA testing, Scalia said, as officials had his full name, race, sex, height, weight, date of birth and address.

Moreover, the testing took months to complete, the justice added.

Nor was there a serious dispute about the purpose of the Maryland law under review, he wrote. The law said one purpose of the testing was “as part of an official investigation into a crime.”

Roberts, in staying the state court decision while the Supreme Court considered the case, acknowledged that the law “provides a valuable tool for investigating unsolved crimes and thereby helping to remove violent offenders from the general population.”

The law authorized testing for purposes of identification, Scalia wrote, but only for missing people and human remains. It said nothing about identifying arrestees.

“Solving 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,” Scalia concluded. “The Fourth Amendment must prevail.”

All 50 states require the collection of DNA from people convicted of felonies. After King was convicted of assault, there would have been no Fourth Amendment violation had his DNA been collected and tested, Scalia wrote.

“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 crimes of arrest.”

From the bench, Scalia repeatedly invoked the generation that fought the Revolutionary War and framed the Constitution.

“The proud men who wrote the charter of our liberties would not have been so eager to open their mouths for royal inspection,” he said.

To reach Mark Morris, call 816-234-4310 or send email to

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