Recently in Maryland v. King (U.S. 6-32013), the United States Supreme Court said, “Yes!”
According to the Court, the DNA identification of an arrestee “is a reasonable search that can be considered part of a routine booking procedure. When officers make an arrest supported by probable cause to hold for a serious offense and they 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 reasonable under the Fourth Amendment.”
Defendant Alonzo King “was arrested in Wicomico County, Maryland, and charged with first and second-degree assault for menacing a group of people with a shotgun. 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 matched the DNA taken from a Salisbury, Maryland, woman who was raped in 2003. King was tried and convicted for the rape. While additional DNA samples were taken from him and used in the rape trial, there was no doubt that it was the DNA from the cheek sample taken at the time he was booked which led to him being linked to the rape and charged with its commission.
The Maryland court found that the DNA sample taken from King “was an unlawful seizure because obtaining and using the cheek swab was an unreasonable search of the person.” That court set the rape conviction aside, ultimately determining that the Maryland statute which had authorized the collection of DNA from felony arrestees was unconstitutional. The United States Supreme Court disagreed and reversed.
“The advent of DNA technology is one of the most significant scientific advancements of our era [and] the utility of DNA identification in the criminal justice system is already undisputed. Since the first use of forensic DNA analysis to catch a rapist and murderer in England in 1986, law enforcement, the defense bar, and the courts have acknowledged DNA testing’s unparalleled ability both to exonerate the wrongly convicted and to identify the guilty.”
The defendant’s DNA was collected in this case using “a common procedure known as a ‘buccal swab.’ Buccal cell collection involves wiping a small piece of filter paper or a cotton swab similar to a Q-tips against the inside cheek of an individual’s mouth to collect some skin cells. The procedure is quick and painless. The swab touches inside an arrestee’s mouth, but it requires no ‘surgical intrusion beneath the skin,’ and it poses no ‘threat to the health or safety’ of arrestees.”
Without doubt, “using a buccal swab on the inner tissues of a person’s cheek in order to obtain DNA samples is a search” within the meaning of the Fourth Amendment. Unlike the drawing of blood, however, a buccal swab “is a far more gentle process[.] It involves but a light touch on the inside of the cheek; and, although it can be deemed a search within the body of the arrestee, it requires no ‘surgical intrusions beneath the skin.’ ”
“To say that the Fourth Amendment applies here is the beginning point, not the end of the analysis. In some cases, when faced with ‘special law enforcement needs,’ the Court has found that a warrantless search or seizure may be reasonable. The need for a warrant is perhaps least when the search involves no discretion that could properly be limited by [placing] a neutral magistrate between the citizen and the law enforcement officer.”
This is such a case. “The Maryland DNA Collection Act provides that, in order to obtain a DNA sample, all arrestees charged with serious crimes must furnish the sample[.] The arrestee is already in valid police custody for a serious offense supported by probable cause. The DNA collection is not subject to the judgment of officers[.]” Thus, the Court determined that it is a procedure judged by the traditional standards of reasonableness under the Fourth Amendment.
The application of “traditional standards of reasonableness” requires a court “to weigh ‘the promotion of legitimate governmental interests’ against ‘the degree to which [the search] intrudes upon an individual’s privacy.’ ”
“The legitimate government interest served by the Maryland DNA Collection Act is one which is well established: the need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody. It is beyond dispute that ‘probable cause provides legal justification for arresting a person suspected of crime, and for a brief period of detention to take the administrative steps incident to arrest.’ ” Also uncontested is the right of law enforcement to search a person incident to a lawful arrest. The constitutionality of such a search “does not depend on whether there is any indication that the person arrested possesses weapons or evidence. The fact of a lawful arrest, standing alone, authorizes a search.”
Moreover, the interests related to the “routine administrative procedures” at a police station house incident to booking and jailing the suspect derive from the fact that the individual is now formally processed into police custody. “When probable cause exists to remove an individual from the normal channels of society and hold him in legal custody, DNA identification plays a critical role in serving those interests.”
Clearly, in every criminal case, it must “be known who has been arrested and who is being tried. An individual’s identity is more than just his name or Social Security number, and the government’s interest in identification goes beyond ensuring that the proper name is typed on the indictment. A suspect’s criminal history is a critical part of his identity that officers should know when processing him for detention.”
Presently, the police seek identifying information, using “routine and accepted means as varied as comparing the suspect’s booking photograph to sketch artists’ depictions of persons of interest, showing his mug shot to potential witnesses, and of course making a computerized comparison of the arrestee’s fingerprints against electronic databases of known criminals and unsolved crimes. In this respect the only difference between DNA analysis and the accepted use of fingerprint databases is the unparalleled accuracy DNA provides.”
“The DNA collected from arrestees is an irrefutable identification of the person from whom it was taken. Like a fingerprint[, a] DNA profile is useful to the police because it gives them a form of identification to search the records already in their valid possession. In this respect, the use of DNA for identification is no different than matching an arrestee’s face to a wanted poster of a previously unidentified suspect; or matching tattoos to known gang symbols to reveal a criminal affiliation; or matching the arrestee’s fingerprints to those recovered from a crime scene. DNA is another metric of identification used to connect the arrestee with his or her public persona, as reflected in records of his or her actions that are available to the police. It uses a different form of identification than a name or fingerprint, but its function is the same.”
When an arrestee is incarcerated, “officers bear a responsibility for ensuring that the custody of an arrestee does not create inordinate ‘risks for facility staff, for the existing detainee population, and for a new detainee.’ DNA identification can provide untainted information to those charged with detaining suspects[.]”
Moreover, an arrestee’s past conduct is essential to “an assessment of the danger he poses to the public and this will inform a court’s determination whether the individual should be released on bail. ‘The government’s interest in preventing crime by arrestees is both legitimate and compelling,” and “DNA identification of a suspect in a violent crime provides critical information to the police and judicial officials in making a determination of the arrestee’s future dangerousness.”
“Finally, in the interests of justice, the identification of an arrestee as the perpetrator of some heinous crime may have the salutary effect of freeing a person wrongfully imprisoned for the same offense. ‘Prompt DNA testing . . . would speed up apprehension of criminals before they commit additional crimes and prevent the grotesque detention of . . . innocent people.’ ”
“In sum, there can be little reason to question ‘the legitimate interest of the government in knowing for an absolute certainty the identity of the person arrested, in knowing whether he is wanted elsewhere, and in ensuring his identification in the event he flees prosecution.’ To that end, courts have confirmed that the Fourth Amendment allows police to take certain routine ‘administrative steps incident to arrest – i.e., booking, photographing, and fingerprinting[.]’ ” DNA identification of arrestees “is ‘no more than an extension of methods of identification long used in dealing with persons under arrest.’ In the balance of reasonableness required by the Fourth Amendment, therefore, the Court must give great weight both to the significant government interest at stake in the identification of arrestees and to the unmatched potential of DNA identification to serve that interest.”
Accordingly, “DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure. When officers make an arrest supported by probable cause to hold for a serious offense and they 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 reasonable under the Fourth Amendment.
About the Author: Larry E. Holtz is the C.E.O. and Executive Director of Police Training for Holtz Learning Centers, Ltd. He has served as a Detective Sergeant with the Atlantic City, New Jersey, Police Department; a Deputy Attorney General for the state of New Jersey; and an Assistant County Prosecutor. Mr. Holtz is a certified police trainer and teaches on a regular basis in police training academies in New Jersey and Pennsylvania.
He is a member of the bar in New Jersey, Pennsylvania, and the District of Columbia, and is admitted to practice before the federal bar in the District of New Jersey and the Third Circuit.”