It is now legal for police to take a DNA sample from anyone they arrest, regardless of whether they have been convicted of a crime or gone to trial. The Supreme Court ruled 5-4 on Monday to uphold the practice of DNA swabbing arrestees.
Investigators believe the practice, used in 26 states, will help them close unsolved cases.
Justice Samuel Alito called the case “the most important criminal procedure case that this court has heard in decades.”
"DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure," said Justice Anthony 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."
Only one liberal justice, Stephen Breyer, agreed with the court's comparison of DNA testing to fingerprinting and photographing. Justice Antonin Scalia and three liberal justices disagreed, claiming the DNA procedure is unconstitutional because it violates an individual's protection against unreasonable searches.
"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," Scalia wrote. "This will solve some extra crimes, to be sure. But so would taking your DNA whenever you fly on an airplane."
The 26 states that have laws to collect DNA from those arrested for felonies or other serious crimes upload the information into a government-run database, looking for matches to unsolved crimes.
In 2009, the procedure linked Alonzo Jay King, then arrested for assault, to a 2003 rape in Maryland. His conviction was thrown out by The Maryland Court of Appeals, stating that police had no warrant and no reason to suspect King of another crime when they obtained his DNA. Maryland, backed by the federal government, took the case to the Supreme Court.
President Barack Obama signed the Katie Sephich Enhanced DNA Collection Act in January 2012, which funds states to collect cheek swabs.
“It’s the right thing to do,” Obama said in a 2010 appearance on America’s Most Wanted, referring to the procedure of swabbing arrestees. “This is where the national registry becomes so important.”
During a February oral argument, Justice Sonia Sotomayor worried that DNA swabbing could eventually be utilized in school and workplaces.
At the time, Justice Elena Kagan asked "why don't we do this for anybody who comes in for a driver's license?"
That argument was the crux of Scalia’s dissent.
"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," Scalia said. "The proud men who wrote the charter of our liberties would not have been so eager to open their mouths for royal inspection."