Cheek Swabs

By Zachary Margulis-Ohnuma

Pretty much every defendant arrested by the feds — the Drug Enforcement Administration, the Department of Homeland Security or the FBI — is subjected to a cheek swab.  The agents politely and painlessly take a little DNA from your cheek with a q-tip as you are being fingerprinted, photographed and “processed.”  You are told it is routine, don’t worry about it.  You are not asked for consent or given a choice.  You probably were woken up just after 6 a.m. (the earliest a warrant can be served) in front of your terrified family.  You are so disoriented, and the agent is so nice about it, you don’t even consider complaining.  Your lawyer has not yet even arrived.

This “routine” practice is almost surely illegal.  That little swab can not only match you to other crimes, it can tell the government lots of information about you.  In Maryland v. King, the Maryland state court found that cheek swabbing arrestees accused of serious crimes was a violation of the Fourth Amendment unless there was particularized need for the procedure.  The case was appealed to the Supreme Court which heard argument on February 28, 2013.  The justices appeared poised to strike down Maryland’s law, which would have dire consequences for the federal practice: when the attorney for Maryland noted the large number of crimes that were solved as a result of the swabs, Justice Scalia’s response was “Well, that’s really good. I’ll bet you, if you conducted a lot of unreasonable searches and seizures, you’d get more convictions, too…. That proves absolutely nothing.”