On Monday, a sharply divided Supreme Court ruled that it is constitutional for police to routinely collect DNA samples from those they arrest, equating the practice of taking cheek swabs with fingerprinting.
"Taking and analyzing a cheek swab of the arrestee DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment," Justice Anthony Kennedy wrote for the court's five-justice majority.
Yet, the four justices who dissented argued the nation's highest court was ushering in a new era of police power.
"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," conservative Justice Antonin Scalia said in a sharp dissent which he read aloud in the courtroom. "This will solve some extra crimes to be sure, but so would taking your DNA when you fly on an airplane. Surely, the TSA must know the 'identity' of the flying public. For that matter, so would taking your children's DNA when they start public school."
Kennedy wrote the decision, and was joined by Chief Justice John Roberts and Justices Samuel Alito, Clarence Thomas and Stephen Breyer. Scalia was joined in his dissent by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.
A total of 28 states take DNA swabs after arrests -- and so does the federal government -- but Minnesota is not among them.
That stated, taking DNA swabs from criminals is common practice in all 50 states and in the federal government. Cheek swabs taken from convicts are often checked against federal and state databanks -- but Monday's decision will allow the collection prior to conviction and without a warrant.
Court documents show the FBI's Combined DNA Index System, known as CODIS and comprised of federal, state and local DNA profile databases, already contains samples from more than 10 million criminals and 1.1 million arrestees. DNA profiles garnered from those who were acquitted or had the charges against them dismissed are supposed to be expunged from the system -- but states and municipalities can make their own rules governing their collections.
A Maryland court was one of the first to suggest it was illegal to collect DNA without approval from the judge, citing a "reasonable expectation of privacy against warrantless, suspicion-less searches" as protected by the Fourth Amendment.
That case focused on the rape trial of Alonzo King, and the Supreme Court's ruling will reverse the Maryland court's ruling and will reinstate the rape conviction that was made after police took his DNA in an unrelated arrest.
The American Civil Liberties Union denounced the court's ruling as a "a gaping new exception to the Fourth Amendment."
"The Fourth Amendment has long been understood to mean that the police cannot search for evidence of a crime -- and all nine justices agreed that DNA testing is a search -- without individualized suspicion," said Steven R. Shapiro, the group's legal director. "Today's decision eliminates that crucial safeguard. At the same time, it's important to recognize that other state laws on DNA testing are even broader than Maryland's and may present issues that were not resolved by today's ruling."
In Maryland, police are only allowed to take DNA from those arrested on violent crimes, such as murder, rape, assault and burglary; however, Kennedy did not say whether the court's decision would limit DNA collection practices to crimes of that nature. Instead, he noted that other states which collect DNA have laws that differ from Maryland's.
For Scalia, that ambiguity represents a serious flaw.
"If you believe that a DNA search will identify someone arrested for bank robbery, you must believe that it will identify someone arrested for running a red light," he said.
While civil liberties advocates met the ruling with scorn, the Rape, Abuse and Incest National Network praised the decision.
"DNA has already aided nearly 200,000 investigations, and thanks to today's decision, it will continue to be a detective's most valuable tool in solving rape cases," said Scott Berkowitz, the group's president and founder. "Out of every 100 rapes in this country, only three rapists will spend a day behind bars. To make matters worse, rapists tend to be serial criminals, so every one left on the streets is likely to commit still more attacks. DNA is a tool we could not afford to lose."
In his opinion, Kennedy wrote that DNA collection is a useful tool to help police identify individuals.
"The use of DNA for identification is no different than matching an arrestee's face to a wanted poster of a previously unidentified suspect; or matching tattoos to known gang symbols to reveal a criminal affiliation; or matching the arrestee's fingerprints to those recovered from a crime scene," Kennedy said. "DNA is another metric of identification used to connect the arrestee with his or her public persona, as reflected in records of his or her actions that are available to police."
In Maryland v. King, 12-207, a 53-year-old woman was raped and robbed, but no arrests were made in the case. Nearly six years afterward, King was arrested on a felony charge of second-degree assault and officers took a cheek swab as permitted under the Maryland law allowing warrantless DNA tests. That sample matched one taken from the rape and resulted in King's conviction and life sentence.
Yet, King later pleaded guilty to a lesser charge of misdemeanor assault for his initial arrest, which would not have met the requirements for a warrantless DNA sample. The state's Court of Appeals therefore found taking the sample based on an arrest alone violated King's rights.
After that decision, Maryland stopped collecting DNA after arrests, but police were allowed to take samples pending the review from the Supreme Court.
Information from the Associated Press was used in this report.