Supreme Court: Cops Can Take Your DNA Just Like Fingerprints

Forensic dna testing

Weeks ago, many people throughout the Nation expressed concern that a version of a forthcoming immigration reform bill included provisions that would allow the Federal government to keep a “biometric database.” While it turned out that biometric data would have been used only to supplement pre-existing e-Verify pre-employment checks for noncitizens, a Monday Supreme Court ruling brings the prospect of a Federal biometric database closer to reality—and it could affect anyone in the United States caught in the criminal justice dragnet.

A sharply divided Court said in a 5-4 decision that it would uphold a Maryland law which allows police to take a DNA swab of any individual charged with a violent crime, as long as they have probable cause.

The ruling stems from Maryland v. King, a case involving Alonzo King, who was arrested in 2009 on charges of first-degree assault. DNA taken from King during that arrest was used to link him to an earlier rape, for which he was tried and convicted. But King sued, alleging that police had violated 4th Amendment protections against unreasonable search and seizure by taking his DNA.

The Court ruled that DNA should be considered identifying information, no different from fingerprints. Currently at least 28 States and the Federal government use information from DNA swabs after arrests. All 50 States collect the information from convicted criminals to check against Federal and State databanks— but the Supreme Court ruling pertains to people who have not yet been convicted of any crime.

“Taking and analyzing a cheek swab of the arrestee DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment,” the Court’s five-justice majority ruled.

The ruling, written by Justice Anthony Kennedy, goes on, “In this respect the use of DNA for identification 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.”

“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,” Justice Antonin Scalia said in dissent.

There was no indication of the Court’s usual ideological divisions in the split ruling as conservative and liberal justices were in both groups. Chief Justice John Roberts and Justices Samuel Alito, Clarence Thomas and Stephen Breyer were among those in favor of the ruling. Scalia was joined in his dissent by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.

The American Civil Liberties Union, in a statement following the ruling, acknowledged the importance of DNA in solving crimes, but decried the collection of the biometric data from people who have not yet been convicted of crimes.

“Today’s decision creates a gaping new exception to the Fourth Amendment. As Justice Scalia’s dissent convincingly demonstrates, DNA testing of arrestees has little to do with identification and everything to do with solving unresolved crimes. While no one disputes the importance of that interest, the Fourth Amendment has long been understood to mean that the police cannot search for evidence of a crime – and all nine justices agreed that DNA testing is a search – without individualized suspicion. Today’s decision eliminates that crucial safeguard. At the same time, it’s important to recognize that other state laws on DNA testing are even broader than Maryland’s and may present issues that were not resolved by today’s ruling.”

Personal Liberty

Sam Rolley

Sam Rolley began a career in journalism working for a small town newspaper while seeking a B.A. in English. After covering community news and politics, Rolley took a position at Personal Liberty Media Group where could better hone his focus on his true passions: national politics and liberty issues. In his daily columns and reports, Rolley works to help readers understand which lies are perpetuated by the mainstream media and to stay on top of issues ignored by more conventional media outlets.

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  • Harold Olsen

    Personally, I’ve never seen anything wrong with cops taking a DNA sample when they arrest someone. Why would that be any different than fingerprinting someone? There is one problem, though. DNA is not as reliable as fingerprints. I’m no expert, but, I understand that twins, triplets, whatever, have the same DNA. Also, certain drugs and medications can alter a person’s DNA.

    • Thomas the Doubter

      What’s wrong with DNA sampling? Simple, it goes against the

      right of self-incrimination. When you are arrested you, by law don’t have

      to say a word, you don’t have to talk with police, therefore it goes

      they don’t have a right to collect any other type of evidence.

      • rbrooks

        what right to self incrimination? you are forced to give your finger prints. this is no different. in the near future, they will be implanting chips.

    • Wellarmed

      I cannot disagree with you more Mr. Olsen. Simply being arrested does not make one guilty of a crime. Finger printing leaves an impression on paper or digital image in a computer system, where as DNA evidence provides a physical sample of ones human tissue. The difference is not merely semantics but is Grand Canyon wide or night and day if you prefer that analogy.

      This sample is taken by force from the state and is not volunteered by the person being arrested. Imagine for one moment if your DNA evidence is mixed up with a known rapists ( by accident of course? ) and you who are innocent is now in the position of needing to prove your innocents before even being sent to trial. How many days or months do you think you will languish in prison (in amongst the general population=AIDs, Hep C & you a child rapist, or so they think) before your attorney can successfully get another DNA test sent to an independent lab for verification.

      Please remember your bail will be in the stratosphere as EVIDENCE suggests that you are a child rapist and the state will also need time (months/years?) to reprocess the DNA EVIDENCE again when your independent lab results contradict their findings.

      What do you think is happening to your life at home if this scenario ever plays out? DO you think your job is still there? How about your wife and kids? Hell for that matter do you think you will still have a home to even go to as it will most likely fall into foreclosure after your savings are depleted.

      This is just one scenario, but cases such as this have happened and will continue to happen with out sufficient controls being put into place. I am not 100% against collecting DNA evidence so long as one is convicted in a court of law of committing a violent crime which would lend a reasonable person to believe that they have committed similar offenses. Until those conditions are met then this ruling from SCOTUS will be ignored by me the next time I step into the jury box.

  • Merle Dickey

    I feel like we are losing our freedom little by little.I personally wouldn’t care if they did but I am wondering about the abuse and unfairness that it may cause.And as Harold said it isn’t 100 % accurate in some cases.

    • LT41

      DNA is used to prove paternity, has been used to free many falsely-imprisoned people. DNA testing is more likely to clear a person of charges where physical evidence is available than it is to falsely charge a person. Less possible to be framed for a crime one didn’t commit. And saves billions in costly trials where DNA match could eliminate someone as a suspect at the beginning. What freedoms are we giving up in those scenarios?

      • Merle Dickey

        I have no skeletons in my closet as LT41 suggests some folks do I guess I am such a private person it seems invasive to me but I don’t intend to get myself in a situation where I would have that happen . Your right it does has its positives

  • hipshot

    Its just another way for them to chip away at our Rights that were given to us by OUR creator, not some transient government.

  • Old Wolf

    The problem with this particular issue, is that even in the database, the alleles that they mark are not unique. There are numerous matches between unrelated persons within the federal database on the genetic markers, including several ‘perfect’ matches, and multiple matches above 9 loci, which is considered to be by the modern forensics ‘definitive’. DNA matches are great for marking someone as innocent from a crime, but very poor for actually identifying offenders with any degree of certainty. Katherine Troyer found one 13 point match between a man who was caucasian, and another African-american, then decided to dig.

    However, due to things like “CSI” we consider them to be ‘sciency stuff’ and good information. Juries often take them at face value, and exonerating DNA evidence is sometimes hidden from the defense. It’s a coerced form of testifying against yourself, and a means of getting around the 5th amendment prohibition, which protects the innocent as much as the guilty.

    Another case in point is the ‘Phantom of Helibronn’, a case in which they had dna.. on their cotton swabs prior to sampling, resulting from handling at the factory. DNA evidence tracks easily, and is easily stored, planted, and in some cases unreliable due to chimerism, for instance in one case where a maternity test turned up several different DNA samples in a single person. Given samples, it would not be hard to link in the national or local database to some event or criminal act, given the nature of the size of the database, even for innocent persons.

    • Wellarmed

      Well said!

  • Wellarmed

    Thank you Mr. Roley for writing this article. As our country spirals further down into the abyss I begin to wonder how, when, and if freedom will ever be restored in our nation?

    Revolution at some point is going to be our only option if this course cannot be reversed. I fear that day with all my soul as I do not believe in the act of war, but the noose is slowly be drawn around our necks and the vast majority of our fellow citizens refuse to turn the light on upstairs if you catch my drift.

    I would respectfully ask that you follow this article up with state corrupted DNA evidence that occurred in North Carolina, and Massachusetts, as well as the thousands upon thousands of rape kits that sit in frozen storage (unprocessed) here in New Mexico at the Albuquerque crime lab. I could not list the number of ways a data base with such illegally (ruling violates 4th amendment protections) obtained evidence could be manipulated to persecute those who dissent to our governments actions

    This ruling can and must be nullified at the state and local levels before their data base can be constructed. I ask every one reading this to contact your state legislators and let them know in no uncertain terms that they must draft and pass legislation that would make it a felony to collect DNA without a warrant signed by a judge. There must be clear wording that defines the penalties and jail time for violating citizens rights within your state, and no exemption for Federal Officers acting within your borders.

  • Upsetatitall

    And what’s next? The microchip?

  • LT41

    The police can force a blood draw in suspected DUI cases when the suspect doesn’t want to give it willingly, a warrant can be obtained to do it anyway. It proves whether or not you were impaired while driving. So why not other physical scientific proof of guilt or innocence such as DNA. More fair and accurate than eye witnesses, fingerprints, or any other means of identification. Those who argue against it sound like they have something to hide–literally a skeleton in the closet.

  • LT41

    Please look at text_pti_dna_matching.htm. Shows that a DNA sample could conceivably match 1% of the population. But that’s not how it’s used. It’s used to include or disqualify people from the possible pool of suspects in a crime.

  • JeffH

    The Founders on the dangers of Judicial Activism

    lnterestingly, almost a decade before the American Revolution, Samuel Adams had been one of the first to point out the abuses of the British judiciary in
    America. He long condemned the fact that British judges did not receive their
    salaries from the Legislature and, therefore, were not accountable to the
    people. He also complained that the terms of British judges were not limited to
    the duration of good behavior, thus meaning they could continue to serve even if they usurped the rights of the citizens. Very simply, Adams saw the English
    judiciary as a branch completely unaccountable to the people. Significantly,
    both of these complaints by Adams against the British judiciary were
    specifically incorporated in the U.S. Constitution to prevent a similar abuse of
    American judicial powers.

    The Founders recognized that if national policies are enforced which lack
    popular support, the people will come to despise, and eventually resist, their
    government. As Luther Martin explained at the Constitutional Convention:
    “It is necessary that the supreme Judiciary should have the confidence of the
    people. This will soon be lost if they are employed in the task of remonstrating
    against [opposing and striking down] popular measures of the Legislature.”

    … Very simply, the Constitutional framers supported judicial review; the
    Federalist Papers explained it; the ratification debates described it; and legal
    scholars confirmed it.

    Yet, within judicial review, there were specific things which the Judiciary
    could not do. For example, laws were to be judged only against the specific,
    self-evident wording of the Constitution and nothing further. In other
    words, judicial review had a limited field of inquiry. Hamilton confirmed this
    in Federalist #81:

    [T]here is not a syllable in the plan [the Constitution] which directly
    empowers the national courts to construe the laws according to the spirit of the

  • Bob666

    This is not a good direction regarding personal liberty and freedom!