Maryland V. King

David Lindsey, Attorney at Law

In a potential blow to the Fourth Amendment right to privacy, and in what some are calling “a stunning victory for law enforcement”, the United States Supreme Court decided 5-4 to overturn a lower court decision in Maryland v. King, thereby allowing police to collect a DNA sample at the time of arrest. Proponents argue that this procedure will greatly aid in solving “cold cases”, but Justice Antonin Scalia, in a scathing dissent, warned that an important civil liberties line is being crossed.

It has been accepted practice for some time for law enforcement to obtain DNA samples from individuals who have been convicted of a crime. The ruling on the Maryland case, however, opens the door for such samples to be taken before an individual has even been charged with a crime. In the lower court decision, the Maryland Court of Appeals felt this would be an invasion of personal privacy.

The Supreme Court, in a majority opinion written by Justice Kennedy, held that the state’s interest in learning the full identity of the person under arrest outweighs his right to privacy, and that the swabbing of a cheek to obtain a DNA sample is a minimal intrusion, similar to a finger print. The majority decision goes on to say that “once an individual has been arrested on probable cause for a dangerous offense that may require detention before trial, his or her expectations of privacy and freedom from police scrutiny are reduced.”

Justice Scalia was joined in his dissent by Justices Bader Ginsburg, Sotomayor and Kagan, and opined in his written decision that the DNA sampling procedure was not intended to identify an individual, but rather to collect evidence of a prior crime having nothing to do with the offense for which the individual had been detained. In closing, Scalia stated: “I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.”

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