Kicking off Supreme Court decision season today, a 5-4 ruling upheld the collection of DNA after an arrest, without a warrant or conviction, with the majority deciding that “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.” Along with expanding law-enforcement powers, the decision reinstated a rape conviction against a Maryland man whose DNA was taken after an unrelated felony arrest and tied to an earlier crime without a warrant.
Justices Alito, Roberts, Thomas, Breyer, and Kennedy, who wrote the decision, made up the majority; Justice Scalia dissented with liberal Justices Ginsburg, Sotomayor, and Kagan. In arrests “for a serious offense,” Kennedy wrote, a cheek swab is not overly invasive because it requires “but a light touch.” Currently, 28 states and the federal government take DNA after an arrest.
“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,” countered Scalia. “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.”
“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,” he added.