In news that could have implications for West Virginia criminal defense attorneys, as well as defense attorneys throughout the United States, the Supreme Court recently ruled that police officers were permitted to conduct DNA swabs upon arrest.
In the case Maryland v. King, the Supreme Court upheld a state law in Maryland permitting officers to take DNA from those arrested, but not convicted, of serious crimes. The case involved the arrest of Alonzo Jay King Jr. for assault in 2009. At the time of arrest, police officers followed the state’s DNA Collection Act and swabbed King’s cheek without first obtaining a warrant. King’s sample was placed in a database, where it proved to be a match for a 2003 rape case, which until that time had been a cold case. King was later charged with the 2003 rape and sentenced to life in prison.
King’s lawyers appealed the sentence, arguing that taking DNA from a criminal suspect without a warrant violates the suspect’s rights under the Fourth Amendment. The Fourth Amendment provides that people should “be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
Normally, police do not conduct a search unless they have a warrant. Even in cases where they need only probable cause — such as an automobile search — strict rules are followed: for instance, a police officer can search the entire vehicle, but not the vehicle’s passengers.
In this case, in a 5-4 ruling written by Justice Anthony Kennedy, the Supreme Court found another exception. Kennedy wrote that the DNA swab was a “minor intrusion” on the same level as a routine booking procedure involving a photograph and fingerprinting, which is not considered a violation of the Fourth Amendment. Kennedy was joined in the majority by Chief Justice Roberts, Justice Breyer, Justice Alito, and Justice Thomas.
In the dissent, Justice Scalia argued that the DNA swab represents an “incursion” on the Fourth Amendment prohibition against unlawful search and seizure. He noted that the majority’s ruling meant that a suspect’s DNA could be entered into a database if he or she is arrested for any reason.
Thus far, 26 states and the federal government authorize taking DNA from some of those arrested. The Maryland chief deputy attorney general claimed that, since 2009, the DNA collection has been used to make 225 matches, 75 prosecutions, and 42 convictions. She also claimed that, rather than for search purposes, the DNA was intended to be used to make a bail determination.
While the use of an arrested suspect’s DNA may appear innocent enough, it does seem like more than just a routine photograph taken. Our DNA serves as a genetic blueprint and is a unique identifier. You could argue that fingerprints are similarly intrusive, but regardless, taking a person’s DNA during an arrest seems like step further.