Until this summer, your DNA was considered private. But on June 3 the Supreme Court ruled that law enforcement could collect DNA samples from people who are arrested, but not yet convicted, of crimes. In Maryland v. King, the justices held that the warrantless collection of DNA is reasonable under the Fourth Amendment, so long as the arrest is supported by probable cause and the suspect is detained for a serious offense.
The case involves a Maryland man named Alonzo King, who was arrested in 2009 on first- and second-degree assault charges in Wicomico County. After officers used a cheek swab to take a genetic sample, the DNA was matched to an earlier sexual assault — an unsolved 2003 rape. Although King argued that the evidence should be suppressed under the Fourth Amendment, he was convicted for the earlier rape offense and given a life sentence.
King later won the favor of a divided Maryland Court of Appeals. The court agreed, claiming that suspects under arrest enjoy a higher level of privacy than a convicted felon. However, the Supreme Court overturned that ruling in Maryland v. King and decided in favor of the state.
Justice Kennedy delivered the majority opinion, which argued taking and analyzing a suspect’s DNA is similar to fingerprinting and photographing — both legitimate and routine police booking procedures. King’s “expectations of privacy,” he wrote, “were not offended by the minor intrusion of a brief swab of his cheeks.
The 5-4 decision was a divisive one, with Justice Scalia writing the dissent. “Make no mistake about it,” Scalia wrote, “your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason.”
In his opinion, Kennedy noted “the utility of DNA identification in the criminal justice system is already undisputed.” Yet since police can seize the DNA of any criminal suspect without warrant before they have been put on trial, some worry that innocent Americans who have never been convicted of any crime will have their DNA taken.
Maryland v. King underlined the tensions between privacy and public safety debate, which have been extensively debated since the Sept. 11 attacks. Many legal scholars warned about the potential ramifications of the decision, with one New York University law professor, Erin Murphy, telling US News that she fears DNA swabs could replace Social Security numbers. Murphy also explained that it is “totally naive” to think that the law won’t eventually be expanded to allow DNA collection of all arrestees, rather than just in the case of “serious arrests.”