In a tight 5-4 vote, the U.S. Supreme Court upheld a Maryland law that permits authorities to collect DNA from individuals — without a warrant — at the time of arrest.
Advocates argues that there is no difference between cheek swabbing and fingerprinting, while critics regard the decision as a grave violation of the Fourth Amendment.
26 states have enacted laws that permit DNA collection from citizens at the time of their arrest and Justice Samuel Alito described the case as "the most important procedure case that this court has heard in decades." The recent debate is rooted in the 2009 arrest of Alonzo King on assault charges in Maryland. After police swabbed King's cheek, authorities submitted the DNA sample to a federal database to check for any matches.
The database linked King's DNA to DNA from a rape kit — an unsolved case from six years earlier in which an armed, masked intruder raped a 53-year-old woman in her home. King was then tried for the rape and sentenced to life in prison. The conviction was eventually overturned by a Maryland Court of Appeals that asserted King's DNA was not taken to prove that charge and — under the law — he was presumed innocent at the time of the initial arrest.
"Therefore, the state court concluded, the DNA collection was nothing more than a state fishing expedition for anything prosecutors could catch," wrote NPR's Nina Totenberg about the case in February.
Monday's ruling reverses the decision reached by the Maryland Court of Appeals.
While cases like King's are a testament to the power — and potential justice — provided by DNA collection, the debate hinges on the separation between those the rights of individuals who have been convicted and those who have simply been arrested. It is a widely accepted practice that police can administer DNA tests once an individual has been convicted, but this recent case raises questions regarding the constitutionality of checking DNA without a warrant for the purpose of running the sample against a national DNA database.
Swabbing people who have not yet been convicted with intention to implicate the individual in another, unrelated crime sits a bit uneasy with many personal-privacy advocates.
Ever-evolving, crime-fighting technology continues to test the definition of constitutional freedoms defined by framers who lived in an time far before the creation of an expansive database of crime scene DNA.
In reality, routine cheek swabbing has become a type of 21st-century fingerprinting that will most likely lead to the conviction of a number of guilty criminals. The defense lawyer in King's case failed to convince the court that cheek swabbing is different than fingerprinting. Fingerprinting does not involve "any intrusion into the body," he argued.
But the voice of critics is far from baseless. The resources provided for law enforcement in solving crimes certainly needs a limit — and this recent decision on cheek swabbing should be it.
Justice Elena Kagan noted that the desire to solve crimes could be used to justify obtaining a DNA sample in a number of settings. She asked "Why don’t we do this for everybody who comes in for a driver's license because it's very effective?"
While Monday's decision is a critical, vital, and mostly-positive step forward in the world of criminal justice, Kagan's question — while rhetoric — paints an eerie portrait of what could happen if this is taken too far.