Law Enforcement Officers Permitted To Take DNA Cheek Swabs From Arrestees


By: Ali Sabzevari
The United States Supreme Court has continued to expand the thought that bodily intrusions constitute a search under the Fourth Amendment.  The Supreme Court has applied the Fourth Amendment to police efforts to draw blood, scraping an arrestee’s fingernails to obtain trace evidence, and even to a breathalyzer test.  Recently, however, the Supreme Court applied the Fourth Amendment to police efforts to take “buccal swabs” on the inner tissues of a person’s cheek in order to obtain DNA.
On June 3, 2013, a divided (5-4) United States Supreme Court issued a decision, Maryland v. King, ruling that law enforcement officers are permitted to take DNA cheek swabs from people they arrest.  The Supreme Court held that when police officers make an arrest supported by probable cause to hold for a serious offense and bring the suspect to the police station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is a legitimate police booking procedure that is reasonable under the Fourth Amendment.  The Supreme Court compared this process to similar post-arrest police booking procedures, such as fingerprinting and photographing.
The majority is embracing the fact that the use of DNA technology can significantly improve the criminal justice system and police investigative practices.  Because of this decision, those who are arrested open themselves to having their DNA “taken and entered into a national database…rightly or wrongly, and for whatever reason.”  Justice Antonin Scalia, one of the dissenting justices, further stated that although extracting DNA from arrestees may solve extra crimes, “so would taking your children’s DNA when they start public school.”  Nevertheless, it is apparent that DNA identification is representing an important advance in the techniques used by law enforcement.