The Fourth Amendment in the Modern Age: Supreme Court Looks at DNA Samples Taken From Everybody Who Gets Arrested

February 26, 2013 by Paul Kish

Here we go again, the intersection of the Eighteenth Century concept of privacy enshrined in our Fourth Amendment (no searches or seizures except when done pursuant to a warrant based on probable cause) versus the modern "CSI" world where investigators take biological shards to solve the most difficult of crimes. Today, the Supreme Court hears arguments in Marlyand v. King.

Most of the states along with the federal government have laws that provide for automatic DNA collection from people at the time of their arrest. The King case argued today asks the question whether it is unconstitutional to do that without a warrant, for the sole purpose of checking the DNA against a national DNA crime scene database.

Earlier cases all decided that that police can conduct such tests once an individual is convicted. (It's true, your Blogger lost one of these early cases, back in 2006). The King case asks whether the same is true for people arrested but not yet tried or convicted.

Here's what happened. The police arrested Mr. King in on assault charges. Using state law, they swabbed King's cheek to get a DNA sample, and then submitted the sample to the federal DNA database to see if there were any matches. The database eventually matched King's DNA to biological material from a rape six years earlier. The prosecutors used the DNA match against Mr. King, who was convicted and sentenced to life in prison for the rape.

The Maryland Court of Appeals threw out King's conviction. The state court noted that King was presumed innocent at the time of the initial arrest and that his DNA was not taken to prove that charge. The Maryland court held that the DNA collection was nothing more than a state fishing expedition for anything prosecutors could catch.

Again, this is a never-ending debate, encompassing the tension between personal privacy and the desires of Twenty-First Century crime fighters. We tend to forget that these cases almost always arise in the context of a seemingly guilty person's appeal of a horrible crime. However, if they can take DNA from a "bad" person, they can do the same thing to a "good" citizen who is falsely arrested. It does not take a lot of imagination to come up with scenarios where DNA can later be used against this "good" person, and if Mr. King loses this case, that will almost certainly happen.