The United States Supreme Court has held that when officers make an arrest for a serious offense and 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 permissible under the Fourth Amendment.
The case is Maryland v. King.
This is significant in Ohio, as the Ohio Supreme Court has held that a person has no reasonable expectation of privacy in his or her DNA profile extracted from a lawfully obtained DNA sample, and may not object to its use by the state in a subsequent criminal investigation.
In 2003, the police obtained DNA evidence from a rape investigation. The case remained unsolved until 2009 when the defendant was arrested. As part of a routine booking procedure for serious offenses, his DNA sample was taken by applying a cotton swab or filter paper—known as a buccal swab—to the inside of his cheeks. The DNA was found to match the DNA taken from the rape victim.
The Defendant argued that obtaining the DNA evidence violated his Fourth Amendment rights to be free of unreasonable searches and seizures.
The Court rejected this argument. The Court began it analysis by noting that law enforcement has a legitimate need to a safe and accurate way to process and identify the persons and possessions they must take into custody. Traditionally, the Court has allowed intrusive searches of persons taken into custody.
The Court analogized the taking of DNA evidence to fingerprints. The taking of fingerprints does not violate the Fourth Amendment because it fit within the accepted means of processing an arrestee into custody. The Court said:
DNA identification is an advanced technique superior to fingerprinting in many ways, so much so that to insist on fingerprints as the norm would make little sense to either the forensic expert or a layperson. The additional intrusion upon the arrestee’s privacy beyond that associated with fingerprinting is not significant and DNA is a markedly more accurate form of identifying arrestees. A suspect who has changed his facial features to evade photographic identification or even one who has undertaken the more arduous task of altering his fingerprints cannot escape the revealing power of his DNA.
In contrast to the government interest in DNA identification, the Court believed that the “intrusion of a cheek swab to obtain a DNA sample is a minimal one.” In reaching this conclusion, the Court noted the animally invasive nature of obtaining a DNA sample. In addition, the Court found that the DNA sample obtained did not implicate a significant privacy interest because “the CODIS loci come from noncoding parts of the DNA that do not reveal the genetic traits of the arrestee.”
Justice Scalia dissented. He wrote: “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. The Fourth Amendment must prevail.” Justice Scalia was worried that the Court opinion could later be used to justify the taking of DNA in more minor situations, such as a traffic stop.