The Supreme Court today upheld a Maryland law that allows officials to take DNA without a warrant from those who have been arrested, but not convicted of a serious crime.
Justice Anthony Kennedy, for a 5-4 majority, wrote, "the Court concludes that DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure."
He called the buccal swab to the mouth to obtain DNA a "minor intrusion."
"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," Kennedy wrote.
Kennedy was joined in his opinion by Chief Justice John Roberts and Justices Clarence Thomas, Stephen Breyer and Samuel Alito.
Justice Antonin Scalia dissented from the opinion and was joined by Justices Elena Kagan, Sonia Sotomayor and Ruth Bader Ginsburg.
Scalia said today's decision represents an "incursion" upon the Fourth Amendment's ban against unreasonable search and seizure.
"Make no mistake about it," Scalia writes. "As an entirely predictable consequence of today's decision your DNA can be taken and entered into a national DNA data base if you are ever arrested, rightly or wrongly, and for whatever reason."
He said that "solving unsolved crimes" is a noble objective but it "occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches."
While all states require DNA from individuals convicted of a felony, the federal government and 26 states also take DNA samples from at least some arrestees.
The case concerns Alonzo Jay King Jr., who claims his constitutional rights were violated when he was arrested in 2009 for assault. At the time of his arrest, pursuant to Maryland's DNA Collection Act, officials swabbed his cheek and collected his DNA without a warrant.
His 2009 sample was later matched in a state data base to DNA from a 2003 rape case. It was a cold case involving a 53-year-old female victim in Maryland. Based on the new evidence, King was eventually charged with the 2003 rape and robbery. He is serving a life sentence.
Lawyers for King appealed the decision, arguing that taking the warrantless DNA from someone who has been arrested but not convicted of a serious crime violates the Fourth Amendment's ban on unreasonable search and seizure. The Court of Appeals of Maryland ruled in King's favor.
During arguments in February, Justice Alito said of the case, "I think this is perhaps the most important criminal procedure case that this Court has heard in decades."
Kannon K. Shanmugam, a lawyer for King, argued that the government has no right to forgo ordinary rules requiring a warrant and probable cause before forcing an arrestee to submit to a search involving a physical intrusion into the body for investigatory purposes.
"Our DNA is our blueprint: an individual's DNA contains not only deeply personal information about the subject's medical history and genetic conditions, but also information that can be used to make predictions about a host of physical an behavioral characteristics, ranging from a subject's age, ethnicity, and intelligence to the subject's propensity for violence and addiction," Shanmugam wrote in court papers.
But lawyers for Maryland defend the law. In court, Katherine Winfree, chief deputy attorney general in Baltimore , pointed out that since 2009, when Maryland began to collect DNA samples from arrestees charged with violent crimes and burglary, there had been "225 matches, 75 prosecutions and 42 convictions."
The purpose of the law was to identify people "and to use the information to make bail determinations for people who are validly in their custody," she said.
The U.S. government argued in favor of the law, saying officials are forbidden to look at the DNA for anything except identification information.