News Release ~ 06/03/2013

Supreme Court Rules DNA Collection on Arrest Constitutional, Under Certain Circumstances

Washington, DC (June 3, 2013) – Today, the U.S. Supreme Court ruled in Maryland v. King (12-207) that “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.” (at 28) The 5-4 majority opinion of the Court was delivered by Justice Kennedy and joined by Chief Justice Roberts and Justices Thomas, Alito and Breyer. Justice Scalia filed a dissenting opinion joined by Justices Ginsburg, Sotomayor and Kagan.

NACDL President Steven D. Benjamin said: “Today, the Supreme Court essentially ruled that Americans’ homes and cars are more protected from warrantless searches than our bodies. How can this be? As technology advances, we must be careful to protect fundamental privacy interests from unacceptable government intrusion. This type of intrusion might now be constitutional, but it certainly is not mandatory. NACDL calls on the state legislatures to provide greater protection than what the Supreme Court has provided today."

NACDL has a long-standing position against the expansion of DNA databases to include, among other categories of people, those persons arrested by law enforcement but not yet convicted of any offense. NACDL also filed an amicus curiae brief in this case. In its brief, NACDL argued that a state’s search for DNA samples from an arrestee’s body without a warrant or any basis for suspecting the DNA is connected to a crime is unreasonable, regardless of the balance of interests. The majority, however, sees the invasion of persons’ bodies for a DNA sample no differently than it sees fingerprinting or photographing, at least in the context where one is arrested for a “serious offense.” In his dissent, Justice Scalia concluded: “I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection. I therefore dissent, and hope that today’s incursion upon the Fourth Amendment, like an earlier one, will some day be repudiated.” (at 18)

NACDL’s February 21, 2004, Resolution of the Board of Directors Opposing the Expansion of DNA Databases is available here.

NACDL’s amicus curiae brief in Maryland v. King, filed February 1, 2013, is available here.

The Court’s opinion in Maryland v. King is available here.

Contact: Ivan J. Dominguez, Director of Public Affairs & Communications, (202) 465-7662 or idominguez@nacdl.org.

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's approximately 10,000 direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.

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