Maryland v. King: Cheek Swab is Constitutional as Part of Police Booking
The United States Supreme Court decided Maryland v. King, U.S. Supreme Court No. 12-207, yesterday. Those who follow criminal law across the country were waiting for this decision — and now that it has arrived, it could impact police booking in every county in Ohio and across the U.S.
The Court’s holding was this: When officers make an arrest supported by probable cause to hold a suspect for a serious offense and bring him 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.
In other words, if you are arrested for a “serious offense,” the police can take a DNA sample from you — regardless of whether your arrest was wrongful or whether you are ultimately found innocent on the charges.
The facts of the King case went like this:
Mr. King was arrested in 2009 on first- and second-degree assault charges. He was processed through a Wicomico County, Maryland, facility, where booking personnel used a cheek swab to take a DNA sample. The swab matched to an unsolved 2003 rape, and King was charged with that crime. He moved to suppress the DNA match, arguing that the taking the DNA swab violated the Fourth Amendment.
The U.S. Supreme Court (although divided 5-4) decided that the swab was constitutional–a routine booking procedure similar to fingerprinting. The reasons the Court gave for the decision were these:
(a) DNA testing may “significantly improve both the criminal justice system and police investigative practices.” Under Maryland’s law, a sample may not be added to a database before an individual is arraigned, and it must be destroyed if, e.g., he is not convicted.
(b) There is no need for a warrant before searching (swabbing) the arrestee’s cheek because he was already in valid police custody for a serious offense supported by probable cause.
(c) On balance, the government’s interest in the identification of arrestees and DNA identification’s unmatched potential trumps individual privacy.
Justice Scalia authored a scathing dissent. He explained that a cheek swab in this case is a suspicionless search — the type of search that is barred under the Fourth Amendment ban against unreasonable search and seizure. He explained: “suspicionless searches are never allowed if their principal end is ordinary crime-solving. A search incident to arrest either serves other ends (such as officer safety, in a search for weapons) or is not suspicionless (as when there is reason to believe the arrestee possesses evidence relevant to the crime of arrest).”
Scalia warned: ” Make no mistake about it: As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.”
How will the King case affect police booking and DNA collection procedure in Ohio?
Ohio’s DNA collection law is found in Ohio Revised Code Section 2901.07. Under this law, every person over the age of 18 arrested for a felony on or after July 1, 2011, must submit to a cheek swab DNA specimen collection. The law requires that the DNA sample be taken by the arresting law enforcement agency during the intake process at the local jail.
Any DNA specimen taken pursuant to RC 2901.07 must be sent to the Ohio Bureau of Identification and Investigation (BCI) no later than 15 days after it was taken.
In effect, Maryland v. King affirms the constitutionality of Ohio’s current DNA collection process. Ohio’s law is limited to collection of DNA samples for felony offenses — which is different from Maryland’s law, which required DNA collection for serious or violent offenses.
Nonetheless, this means that someone arrested (not convicted) on a third DUI in six years (a fourth degree felony in Ohio) could be subject to a cheek swab and have their data entered into a national database. And according to the U.S. Supreme Court, this search — without a warrant — is just fine under the Fourth Amendment.