SCOTUS Upholds Taking of DNA from Arrestee

Independent Institute

Today the Court decided Maryland v. King, and held that if the police have probable cause to make an arrest for a “serious offense” they may also as a matter of course use a cotton swab to take the arrestee’s DNA. The Court said that this was a legitimate police booking procedure akin to taking a suspect’s photo or fingerprints. The Court emphasized that the cops have an interest in properly identifying folks they arrest and that there is no better identification procedure than DNA. The opinion was written by Justice Kennedy and joined by Roberts, Thomas, Breyer, and Alito.

Justice Scalia wrote a vigorous dissent. He challenged the majority on the assertion that the taking of DNA is simply a needed means of identifying a person. He pointed out that the real purpose of taking DNA is for the solving of other cases. All the police really want to do, he rightly argued, is to run a person’s DNA to see if it matches up with a case open elsewhere. Thus, he found the intrusion into the body to be a search unsupported by probable cause. He concluded his dissent with this rhetorical flourish:

Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the “identity” of the flying public), applies for a driver’s license, or attends a public school. Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.


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