Taking DNA Samples When Arrested is Allowed by Supreme Court

The Supreme Court ruled last week that police can swab arrestees for a DNA sample as a booking procedure. This means, you don’t have to be guilty of a crime in order for your genetic material to be taken and owned by the government. The (somewhat) good news is that not all states follow the same protocol when it comes to collecting DNA.

“Make no mistake about it: because of today’s decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason,” wrote Justice Antonin Scalia for the dissent. “This will solve some extra crimes, to be sure. But so would taking your DNA whenever you fly on an airplane.”

DNA Samples at Arrest AllowedThe High Court was narrowly divided, with 5 voting for DNA collection at arrest and 4 against. Writing for the majority, Justice Anthony Kennedy said the key to their decision was whether or not the taking of DNA could be considered a “reasonable” search. The five in support determined it was.

“DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure,” wrote Kennedy. “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.”

Right now, 26 states have laws that allow for DNA collection in the case of felony arrests. The genetic information is uploaded into a federal database and potentially matched to unsolved crimes. Just using the words “genetic material” and “government database” in the same sentence is enough to warrant some red flags.

Scalia called the taking of DNA a “suspicionless” search. After all, when a suspect’s DNA is taken and submitted into the database, it isn’t being used in the case for which he is arrested at the time, merely a fishing expedition. And if we are allowing law enforcement to “fish” for possible crimes while contributing to an ever-expanding library of genetic material, where will the lines be drawn.

Justice Sonia Sotomayor wondered the same thing back in February during oral arguments, concerned DNA swabs could eventually find their way into schools and workplaces. Similarly, Justice Elena Kagan sarcastically added, “why don’t we do this for anybody who comes in for a driver’s license?”

Though the ruling doesn’t mean every arrestee across the board will now be swabbed and cataloged as standard evidence gathering, it does set the stage for a future where that is commonplace.

About David Matson