BB&K Police Bulletin: DNA Collection - U.S. Supreme Court Upholds Cheek Swab Search


Overview: The United States Supreme Court has upheld a Maryland law authorizing police to collect a DNA sample from suspects charged with violent crimes. Using the cheek swab of an assault suspect in 2009, police were able to match the sample to DNA taken from the victim of an unsolved rape in 2003. Calling the technique an important advance “far superior” to fingerprinting, the Court upheld DNA testing as a legitimate booking procedure and reasonable search under the Fourth Amendment.

Training Points: This case shows that it is not necessary to obtain a warrant before requiring someone arrested for a serious crime to provide a DNA sample via a cheek swab. A cheek swab is permissibly part of the standard booking process for these types of crimes and suspects. Given the obvious advancement of law enforcement goals, agencies now have another technological tool to fight crime. Agencies should always consider their policy and protocol for obtaining DNA samples, and in the absence of any policy or protocol, agencies should consult with legal counsel to develop one. It is important to note the Court did not issue any opinion regarding forcible collection of a DNA sample. Likely, any use of force in connection with a DNA collection would be analyzed under the objective reasonableness standard for uses of force.

Summary Analysis: In Maryland v. King, Alonzo King was arrested in 2009 and charged with first-degree assault, a violent crime. Maryland’s DNA Collection Act allowed law enforcement authorities to take a cheek swab. King’s DNA was matched to an unsolved 2003 rape. King challenged the rape conviction, claiming that DNA testing was an illegal search under the Fourth Amendment. The U.S. Supreme Court disagreed, finding the testing of King’s cheek swab “reasonable” based on the officers’ probable cause to arrest and hold King in custody for the assault. Balancing individual and government interests, the Court determined that DNA testing significantly improved the criminal justice system and police investigation without intruding on individual privacy or threatening health and safety. Further, any minimal intrusion beyond that related to fingerprinting was “insignificant” compared to the possibility of determining a DNA match with near certainty. Matching King’s DNA to the 2003 crime was therefore constitutional.

The case also validates the Ninth Circuit’s holding in Haskell v. Harris (2012) , which dealt with California law authorizing the collection of a DNA sample via cheek swab for felony sex crimes.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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