Supreme Court Approves Cheek Swabs

By Zachary Margulis-Ohnuma

The Supreme Court has ruled that Maryland’s policy of swabbing arrestees for DNA is a search, but a reasonable, constitutional search, even without individualized suspicion.  That means anyone arrested for a “serious crime” can be swabbed and the DNA results used against him or her in any old case where DNA was collected.  These cheek swabs are routine practice in federal cases — almost all federal crimes are likely to be deemed “serious.”  The Supreme Court concluded: “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.”

Justice Scalia, who had acerbically cast doubt on the practice at oral argument, dissented with vigor and was joined by three other justices.  He wrote: “The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous. And the Court’s comparison of Maryland’s DNA searches to other techniques, such as fingerprinting, can seem apt only to those who know no more than today’s opinion

has chosen to tell them about how those DNA searches actually work.”