Supreme Court allows police to take DNA sample after an arrest

Supreme Court Justice Anthony M. Kennedy wrote the decision in the DNA case.
(Paul J. Richards / AFP-Getty Images)

WASHINGTON — The Supreme Court cleared the way Monday for police to take DNA samples from all people arrested in serious crimes, a major step toward expanding a national database that will match new suspects to evidence from old crime scenes.

The decision means that a mouth swab for DNA is likely to become as common as taking fingerprints and a mug shot of those who are taken to a police station under arrest.

That’s a major victory for investigators, who say DNA testing is the most effective way to catch serial rapists, killers and other violent criminals. Joined by victims rights advocates, they have pressed for more widespread testing of suspects.

But civil liberties advocates say the move comes at too high a price, given the amount of personal information that a DNA sample potentially can give the government.

All the states and the federal government take a DNA swab of someone convicted of a serious crime. Twenty-nine states, including California, and the federal government go further and take DNA samples from at least some people who are just arrested. But the constitutionality of testing arrestees had remained in doubt, pending the high court’s ruling.


By a 5-4 vote, the court approved that practice, rejecting the claim that taking a mouth swab from a suspect amounts to an “unreasonable search.”

“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 ... or matching the arrestee’s fingerprints to those recovered from a crime scene,” Justice Anthony M. Kennedy wrote for the majority. “The only difference between DNA analysis and the accepted use of fingerprints databases is the unparalleled accuracy DNA provides.”

But Justice Antonin Scalia, who joined three of the court’s liberal justices in an unusual lineup, said in an acerbic dissent that taking DNA had nothing to do with identification and everything to do with what the 4th Amendment prohibits — searching people for evidence of a crime without any individual cause.

“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,” Scalia said, reading a portion of his dissent from the bench.

Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan joined his dissent.

Kennedy said that although it can take up to a month to check a DNA sample with the national database, the “FBI has already begun testing devices that will enable police to process the DNA of arrestees within 90 minutes.” The national database run by the FBI has more than 11 million DNA samples on file and is likely to grow sharply in the years ahead.

Kennedy said taking a mouth swab is only a “minimal” intrusion on an individual’s privacy.

“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 4th Amendment,” Kennedy concluded.

Chief Justice John G. Roberts Jr. and Justices Clarence Thomas, Stephen G. Breyer and Samuel A. Alito Jr. agreed.

The decision in the case of Maryland vs. King upheld the rape conviction of Alonzo King Jr. When he was arrested in 2009 on Maryland’s Eastern Shore on suspicion of assault with a shotgun, a sample of his DNA was taken during his booking. Three weeks later, the state crime lab identified him as the perpetrator of an unsolved rape in his neighborhood from 2003. He was convicted and sentenced to life in prison for the rape.

It is not clear whether the court’s decision will be read to uphold DNA testing of all arrestees or just those held on suspicion of a serious crime. California’s DNA collection law is broader than Maryland’s because it extends to all felonies. The federal law is broader still and extends to all arrests.

Although Kennedy’s opinion spoke of serious crimes, Scalia predicted it would lead to testing all arrestees.

“If you believe that a DNA search will identify someone arrested for bank robbery, you must believe that it will identify someone arrested for running a red light,” Scalia said in court.

In California, civil libertarians said they would continue to challenge the state law as overly broad. Appeals are pending at the California Supreme Court and the U.S. 9th Circuit Court of Appeals.

UC Hastings law professor David L. Faigman noted that California’s Constitution included a privacy guarantee, which could lead the state high court to a different conclusion.

But Stanford University law professor Hank Greely said that although it was unclear what effect Monday’s ruling would have on California, a major part of the battle was already lost.

“The idea that you can mandatorily take DNA samples from someone who has been arrested but not yet convicted and use those samples to tie them to unsolved crimes — that was the ACLU’s major concern, and that is lost,” Greely said.

At the Supreme Court, the conservative Scalia and the liberal Breyer seem to switch sides in some criminal cases. Scalia looks for clear rules based on the original history of the Constitution, and the principle that the government may not search people to find evidence of a crime “lies at the very heart of the 4th Amendment,” he said Monday.

Breyer, by contrast, believes in weighing the interests of both sides and reaching a practical decision. Because DNA can help solve crimes and because he considers the threat to privacy minimal, he voted to uphold the searches.

Scalia is not always a champion of the 4th Amendment. Last year, he joined a 5-4 ruling that upheld a New Jersey jail’s policy of strip-searching all its new inmates, including motorists held on nonviolent charges, while Breyer spoke for the dissenters.

Advocates for crime victims have lobbied for DNA testing laws across the country. Jayann Sepich, a New Mexico woman, began her group DNA Saves after her daughter Katie was raped and killed by a repeat criminal.

“We’re very happy with this decision. We believe this will encourage the rest of [the states] to begin testing as well. This will help stop crime and save lives,” she said.

Times staff writer Maura Dolan in San Francisco contributed to this report.