The Lawletter Vol 38 No 6
Doug Plank, Senior Attorney, National Legal Research Group
In a significant decision handed down near the end of its 2012-2013 Term, the U.S. Supreme Court ruled for the first time that a State's practice of taking and collecting, without consent, DNA evidence from the body of a criminal suspect charged with a serious crime is not an unreasonable search for purposes of the Fourth Amendment. In reversing the contrary decision of the Court of Appeals of Maryland, the Supreme Court held in Maryland v. King, 133 S. Ct. 1958 (June 3, 2013), that the use of a swab to collect samples from the inner tissues of a person's cheek is indeed a search under the Fourth Amendment but that the intrusion is a relatively minor one. According to the Court, when weighed against the legitimate government interest in the identification of arrestees, particularly in light of the unmatched potential of DNA identification to serve that interest, the practice of taking DNA samples must be viewed as a reasonable intrusion on the privacy interest of the suspect.
Justice Scalia dissented in an opinion joined by three other Justices, pointing out that whenever the Court has previously allowed a suspicionless search under the Fourth Amendment, it has insisted upon a justifying motive apart from the investigation of crime. He then pointed out that the stated rationale of the DNA swabbing—the identification of the suspect—was obviously a false one, for it was clear that the State was using the DNA for investigative purposes: "The Court's assertion that DNA is being taken, not to solve crimes, but to identify those in the State's custody, taxes the credulity of the credulous." Id. at 1980 (Scalia, J., joined by Ginsburg, Sotomayor, and Kagan, JJ., dissenting) (emphasis in original).
