A Genetic Panopticon: Undermining The Fourth Amendment


The Fourth Amendment to the Constitution of the United States gives citizens freedom from unreasonable search and seizure and requires any warrant for arrest or seizure to be supported by probable cause. That warrant must be issued by an appropriate member of the judiciary.

Across the country, all states allow for genetic or DNA sampling of individuals convicted on a felony charge. Fewer states, including California, authorize the collection of DNA prior to conviction. In a June ruling, an intensely divided bench of the Supreme Court of the United States reviewing the appeal of a Maryland case found DNA sampling prior to conviction does not violate the individual right to unreasonable search.

The Maryland case involves Alonzo Jay King, Jr. Arrested in 2009 on unrelated charges, DNA material collected at the time of arrest led to the conviction of Mr. King for an unsolved rape in 2003. Defense for Mr. King asserted the pre-conviction swab of his cheek for genetic identification violated his Fourth Amendment rights.

  • In opposing opinions, Justice Anthony Kennedy wrote [t]aking and analyzing a cheek swab of the arrestee DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.
  • In an unusual move highlighting his disagreement with the majority decision, Justice Antonin Scalia spoke from the bench, [m]ake no mistake about it, because of today’s decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason. Justice Scalia added [t]his will solve some extra crimes, to be sure. But so would taking your DNA when you fly on an airplane — surely the TSA must know the ‘identity’ of the flying public. For that matter, so would taking your children’s DNA when they start public school.’

This ruling raises significant and stunning questions about the erosion of personal protection from unreasonable search even as our cars and homes continue to receive the protection of a duly authorized and executed search warrant guaranteed under the Fourth Amendment.

Posted in Supreme Court | Tagged DNA evidence, fourth amendment, probable cause, search and seizure