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SCOTUS: No Warrant Needed for DNA Swab of Arrestee

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By Brett Snider, Esq. on June 04, 2013 10:19 AM

The Supreme Court came down on the side of warrantless DNA swabs on Monday, stating in a 5-4 majority that they did not violate a defendant’s 4th Amendment rights.

In a somewhat surprising split, the Maryland v. King majority stated the Maryland law DNA sampling law did not violate convicted rapist Alonzo Jay King’s rights by authorizing police to take a DNA sample from King after arrest, reports Reuters.

How does this ruling on DNA swabs sit with the Court’s prior rulings on collecting physical evidence from defendants?

DNA Sample Just Like A Fingerprint

Justice Anthony Kennedy authored the majority, in which he ultimately believes that the 4th amendment balance between the state's interests and personal privacy rights tips toward the government's interest in using DNA as a powerfully accurate identifier.

The Court majority believes that DNA is a modern and far superior analogue to fingerprinting, which the court had included as part of the "administrative steps incident to arrest" not requiring probable cause.

DNA sampling is also minimally intrusive, proponents argue, as it only requires a few seconds of a sterile cotton swab in a defendant's mouth.

You can read the entire majority opinion here.

Scalia Strikes Back

Penning an unsurprising dissent with some even more surprising followers, Justice Antonin Scalia couldn't believe that any "noninvestigative motive" exists for taking DNA swabs from a defendant.

He declares that the Court has not approved of any warrantless searches where the primary purpose was to detect "evidence of ordinary criminal wrongdoing," and that DNA can only serve to identify by identifying suspects for additional crimes.

It wouldn't be the first time Scalia has taken almost a Luddite stance to technology in criminal justice, even when it was used to bust illegal pot farmers.

Less Intrusive, Yet More Information

Maybe there is some truth to the idea that a DNA swab is minimally invasive when viewed against DUI blood tests which the Supreme Court ruled 8-1 were unconstitutional without a warrant.

Even though DNA swabs contain the same principled bodily intrusion, perhaps much of the King dissent's worry comes from the idea that DNA contains fantastically more information than a fingerprint.

In over two dozen states that have implemented some form of DNA swab, only a handful of markers (out of billions) are stored as a DNA profile, reports CNN.

So while a danger of DNA overreach exists, even with this ruling, we aren't quite in "Gattaca" yet.

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