On June 3, the Supreme Court handed down its opinion in Maryland v. King. In King, the Supreme Court determined that officers may collect DNA samples from suspects in custody for serious offenses or violent crimes. While in custody for first- and second-degree assault charges, officers took a sample of King’s DNA using a cheek swab. Because King’s DNA matched that of a sample from an unsolved rape case, King was charged for this crime. Most importantly, this decision legitimizes the practice of collecting DNA samples from violent offenders already in custody, because the Supreme Court determined that, although this practice constituted a search under the Fourth Amendment, the search was reasonable and thus a valid “booking procedure.”
This 5-4 decision proved particularly divisive - the dissent actually included one of the Court’s most conservative Justices, Antonin Scalia (author of the dissenting opinion), siding with the Court’s more liberal wing, composed of Justices Ginsburg, Kagan, and Sotomayor. This decision raises several issues in modern criminal cases. Although the majority determined that collecting DNA samples from violent offenders does not violate the Fourth Amendment, it is a search nonetheless. To collect these samples, an officer must actually insert a swab into the suspect’s mouth, invading his or her person. This decision legitimizes a practice that many view as unconstitutional, and it could also open the door for broader searches in the future. Because suspects are already in custody when the samples are collected, the majority determined that collecting DNA samples for purposes of identification is such a minimally-invasive search that virtually no ill-effects or consequences will result. Another question raised is whether taking DNA samples of those in custody is necessary to more accurately identify suspects in custody. Shouldn’t the police already be positive of the identity of the suspect before making an arrest?
However, the majority contends that although collecting a suspect’s DNA sample may slightly intrude into the suspect’s privacy, the greater good is served by positively identifying suspects and potentially matching a violent offender’s DNA with that of an unsolved crime (from the database), much like the present case. The majority essentially champions the government’s interest in law and order over the individual’s Fourth Amendment concerns. Therefore, collecting DNA samples of serious offenders, through such minimally-invasive means as a cheek swab, is consistent with Fourth Amendment principles and constitutes a reasonable search. When suspects are in custody, their expectations of privacy are diminished significantly, thus opening the door for these swab samples, and other DNA-collecting methods. Although the use of a swab to collect DNA may be considered a search, it poses no risk of physical harm, and since it is much more accurate than fingerprinting and other antiquated identification methods, its utility outweighs the suspect’s privacy concerns - especially when used to link violent offenders to past unsolved crimes.
In Scalia’s dissent, however, he notes that this search is unconstitutional because the Fourth Amendment forbids searches without probable cause to believe the suspect actually committed the crime. Scalia believes the majority condones a “suspicionless” search, because the Fourth Amendment requires the officer to maintain a reasonable belief that the suspect committed a crime related to the underlying purpose of the search (dissent, p. 3). Lastly, Scalia notes that the majority’s opinion will “. . . have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane [. . .], applies for a driver’s license, or attends a public school. Perhaps the construction of such a genetic panopticon is wise.” (dissent, p. 18).