soldier with rifle american civil warState Of The Union

Open Your Mouth For Royal Inspection: The DNA Swab as Standard Police Procedure

Maryland v. King

2013 U.S. LEXIS 4165 (2013)

Justice Kennedy wrote the decision of the Supreme Court:

"The fact that the intrusion is negligible is of central relevance to determining" whether the search is unreasonable within the meaning of the Fourth Amendment to the Constitution.

Note: "Negligible" means, according to Websters, "small, unimportant, trifling."


Up to this decision, the Supreme Court, in assessing the constitutional issue of "reasonableness," has "preferred `some quantum of individualized suspicion as a prerequisite to a constitutional search." But, a search, which is not based on "some quantum of individualized suspicion," can still be "reasonable" within the meaning of  the Fourth Amendment, when the "public interest is such that neither a warrant nor probable cause is required," or where the police cannot, in the process, affect the outcome of the search.

In other words, Kennedy says, the answer to the question whether police can routinely take DNA swabs of a citizen's mouth when he is arrested, turns not on whether there is any factual basis to suspect the citizen may have committed a crime unrelated to the arrest, but on whether the search is "reasonable"—given the public's interest in the search, or the absence of opportunity on the part of the police to manipulate the outcome.

Note: "The public interest?" The public has an interest, one can suppose, in solving unsolved crimes, but the public certainly has a compelling interest that the police do not engage in general fishing expeditions, taking samples of a person's identity willy nilly, in the hope that out of millions a few undetected criminals are caught.


It is somewhat reassuring, isn't it, that in fact the police cannot ordinarily manipulate the outcome of the test result; unless, of course, the police involved are of the L.A.P.D. and the citizen is O.J.


Kennedy then proceeds to justify the search, despite the absence of any ground for individualized suspicion the citizen may have committed a past crime, on the basis that the police have a reasonable interest in making sure they know who the citizen is.

As Kennedy puts it, the police are not actually engaged in a fishing expedition to see if the arrested citizen might be the perpetrator of a past crime, but are simply taking the DNA swap to ensure they have identified the citizen for who he actually is, and in that way know how dangerous he might be, and to ensure he will be found again if released from custody.

Justice Scalia Dissents 

To this reasoning, Justice Antoin Scalia, supported by Justices Ginsburg, Kagan, and Sotomayer, dissented. Justice Scalia rejected Kennedy's idea that the "public interest" or the need of the police to know who the arrested citizen is, with the certainty of DNA identification, transforms a fishing expedition into a "reasonable" search within the meaning of the Fourth Amendment.

"The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime. . . . That prohibition is categorical and without exception. The Court's assertion that DNA is being taken, not to solve crimes, but to identify those in the State's custody, taxes the credulity of the credulous."


In other words, Justice Scalia is saying that, under the Fourth Amendment, a search cannot be "reasonable" unless it is based on "probable cause" that the arrested citizen has committed a crime unrelated to the arrest. (Obviously, if, in arresting the citizen, the police have reasonable grounds to suspect he has committed a crime, other than the crime for which he has been arrested, a warrant must be obtained from a magistrate to search the citizen's mouth for evidence of that crime.)

Note: The problem of logic for Scalia, here, is the absence of any rational distinction between the police procedure of taking fingerprints and the procedure of taking DNA samples.


Scalia acknowledges that the Court has in the past approved warrentless searches based upon "special needs;" for example, the Court has approved random drug tests of railroad employees, and teachers in schools. But, as he points out, the primary purpose of these tests is not to discover evidence of criminal wrongdoing but to provide for the safety of travelers and students.

Thus, the question becomes, does the distinction make a difference? Justice Scalia answers this question with an emphatic "Yes."

"If identifying someone means finding out what unsolved crimes he has committed (in order to assess how dangerous he is), then identification is indistinguishable from the ordinary law-enforcement aims that have never been thought to justify a suspicionless search."


Justice Scalia proceeds to consider the actual workings of the police in their arrest of the Mr. King, the subject of the case, to demonstrate the objective reality that the taking of a DNA swab from the citizen's mouth has absolutely nothing to do with Justice Kennedy's presumption that the search is reasonable in the sense that it is necessary to permit the police to ensure their safety in handling the citizen's custody.

The facts are that King was arrested on April 10, 2009 and on that day the police swabbed his mouth. But the result of the testing of the DNA sample was not given to the police until three months later.Thus, as an objective factual matter, it is obvious that, contrary to Kennedy's assertion, the search had nothing to do with the issue of identifying the citizen as a dangerous person. Worse yet, for Kennedy's logic, King's DNA was matched, not with the FBI's "Convict and Arrestee Collection," but with its "Unsolved Crimes Collection."

"In fact, if anything was `identified' at the moment that the DNA database returned a match, it was not King—his identity was already known. Rather, what the match `identified' was the previously taken sample from the earlier crime scene. King was not identified by his association with the sample; rather, the sample was identified by its association with King. (In other words), the test result did not identify King, as King, but it identified a previously unidentified rapist as King."



But, so what? Americans have long been accustomed to having their fingerprints taken by the police upon any arrest, without so much as a peep from the Supreme Court. What practical difference is there whether an arrested citizen's fingerprints tie him to the commission of an unsolved crime, or an arrested citizen's DNA does? Certainly the DNA swab is less messy than the ink left on the citizen's fingers.

Justice Scalia answers:

"What DNA adds, is the ability to solve unsolved crimes, by matching old crime scene evidence against the profiles of people whose identity is already known. That is what was going on when King's DNA was taken, and we should not disguise the fact. Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches."



All reasonable persons can certainly appreciate Justice Scalia's fidelity to the strict interpretation of the Fourth Amendment—that a search is reasonable if, but only, if it is based on probable cause. But, if Justice Scalia would give a pass to the police procedure of fingerprinting every arrested citizen—ostensibly to identify the citizen, not identify the past crimes the citizen may have committed—then, logically, he must be expected to give the same pass to the police procedure of DNAing every arrested citizen. Both procedures constitute searches made without probable cause to suspect the citizen has committed a crime.


Joe Ryan