On Monday, a divided Supreme Court upheld the Maryland DNA Collection Act and ruled that police officers may take DNA samples from arrestees as part of a routine arrest booking procedure for serious crimes. In a 5-4 split, the Court likened swabbing of an arrestee’s inner cheek with a “Q-Tip-like” swab to that of taking fingerprints from an arrestee and held: “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.”
The Court’s ruling reversed a decision last April by Maryland’s highest court that overturned the 2010 conviction and life sentence of Alonzo Jay King for a rape committed six years prior to King’s arrest. The DNA sample taken from King following his 2009 arrest on two unrelated assault charged linked King to a rape that had occurred in 2003. King was convicted of the 2003 rape and sentenced to life in prison.
Writing for the majority, Justice Anthony Kennedy noted, “DNA identification represents an important advance in the techniques used by law enforcement to serve legitimate police concerns for as long as there have been arrests.” Justice Kennedy was joined in the majority by Chief Justice John Roberts and Justices Clarence Thomas, Stephen Breyer and Samuel Alito, Jr. The majority found that the government has a legitimate interest in knowing with absolute certainty the identification of a person arrested, whether the individual is wanted elsewhere and in ensuring the individual’s identification in the event he or she flees prosecution. Balancing an individual’s Fourth Amendment right to be free from unreasonable search and seizure with what the Court determined is a legitimate government interest, the Court concluded that, “Swabbing of an individual’s inner cheek for DNA does not increase the indignity already attendant to normal incidents of arrest.”
Justice Antonin Scalia, a conservative, joined liberal Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan, in the dissent. From the bench, Scalia stated, “The Court has cast aside a bedrock rule of our Fourth Amendment law: that the government may not search its citizens for evidence of a crime unless there is a reasonable cause to believe that such evidence will be found. 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.”
WSH attorneys routinely provide comprehensive legal advice and training to law enforcement agencies on a wide range of topics, including policies, procedures, labor and employment issues, and instruction to police personnel in the field. Our attorneys include former prosecutors, city attorneys, and police department legal advisors, which make us well-suited to work closely with law enforcement and provide rapid legal response where needed. A number of these attorneys are also members of WSH’s Litigation Division, and have extensive experience defending municipalities, governmental agencies, employees, individual departments, branches and divisions in both State and Federal courts at the trial and appellate levels. Members of the Division have successfully defended law enforcement personnel in the areas of false arrest, excessive force, and malicious prosecution and battery, including in § 1983 actions.
Author(s): Sara E. Aulisio
