Police Now Authorized to Take Your DNA Without a Warrant or Conviction

The United States Supreme Court ruled this week in Maryland v. King that police were not prohibited, under the constitution, from taking DNA samples from arrestees without a warrant. The court was divided 5-4 with Justice Kennedy giving the majority opinion. Justice Kennedy essentially explains that gathering DNA evidence from an individual arrested for a serious crime is simply a matter of taking identifying information not dissimilar to fingerprinting, photos, etc. Kennedy seems to focus in on the facts that DNA sampling is relatively not invasive and easy to do. Many states already have DNA swabbing procedures in place but this ruling now makes it clear such practices will be legally upheld even without a warrant and prior to a conviction. What is unclear, is whether or not the practice may extend to those individuals charged with non serious crimes such as retail theft, criminal mischief, or even traffic offenses. Many fear this sets a dangerous precedent where anyone pulled over for any reason or arrested for anything, no matter how insignificant, could be forced to provide a DNA sample through a cheek swab or other method.

Dissenting Opinion by Scalia

The four justices who dissented from the majority were Antonin Scalia (who many argue to be the most conservative of the members) and liberal Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. Justice Scalia wrote the dissent arguing nothing would now stop law enforcement from requiring everyone cited or arrested for any reason to be compelled to provide a DNA sample and be entered into a national database, regardless of whether or not they were rightly or wrongly charged. Scalia argued in his dissent that the majority’s opinion was a radical expansion of the 4th amendment not supported by the text. The ACLU spoke out against the decision issuing a statement that the ruling flies in the face of the well held principle that any search requires individualized suspicion.

How Will Law Enforcement React?

It remains to be seen how law enforcement may react to the court’s new decision. Will local officers here in Utah start cheek swabbing for DNA for petty offenses and traffic citations? Will they show restraint only requiring DNA sampling in serious crimes? Will it ultimately lie somewhere in between? What we do know is that inevitably, individuals who are wrongly charged and never convicted will nonetheless have their DNA collected and stored in a searchable database. We will keep you posted as this new law develops.

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