In Maryland v. King, a sharply divided five-to-four opinion decided on June 3, 2013, the United States Supreme Court held:

When Officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab for the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.

Calling DNA technology “one of the most significant scientific advances of our era,” Justice Kennedy observed that “law enforcement, the defense bar, and the courts have acknowledged DNA testing’s unparalleled ability both to exonerate the wrongfully convicted and to identify the guilty” (internal quotations omitted).  Justice Scalia dissented and argued, “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 or is in possession of incriminating evidence.”  Justice Scalia also pointed out that there is “no indication” that FBI CODIS DNA database promotes “exonerating the wrongfully convicted” as it “includes DNA from unsolved crimes” but not from “crimes whose perpetrators have already been convicted.”

The collection procedure—using a “buccal swab, which is similar to a Q-tip”—was significant to the Court’s decision.  The buccal swab “touches the inside of an arrestee’s mouth” but does not require “surgical intrusion beneath the skin,” is not painful, and “poses no threat to the health or safety of arrestees” (internal quotations and citations omitted).  A buccal swab search contrasts with intrusions into the human body, such as blood draws, that the High Court addressed in Schmerber v. California, 386 U.S. 757 (1966) and Missouri v. McNeely.  McNeely held that “the natural metabolization of alcohol in the bloodstream” does not create “a per se exigency that justifies an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases.”

Maryland v. King leaves important questions unanswered:

• The decision clearly authorizes comparing the DNA sample to evidence of prior, unsolved crimes by placing it in the DNA database.  Although not specifically addressed in the opinion, presumably a judicial determination of probable cause is still required before collecting DNA to be compared to the evidence in the current case.
• The decision applies only to arrests for a “serious offense.”  Section 23-3-620 of the South Carolina code of laws requires collection of a DNA sample for all felonies and some misdemeanors, raising the question whether our state’s statue applies to too many crimes.
• In Maryland, the DNA sample cannot be placed into the database until after a judicial officer reviews the determination of probable cause for arrest and arraigns the person.  Section 23-3-620 does not require judicial review of the probable cause determination before the sample is submitted to the State Law Enforcement Division (SLED), thus calling into question the sufficiency of our state’s statute.

Maryland v. King very likely will have a disproportionate impact on indigent defendants and minorities.

Click one of these links to read the Court Opinions in Maryland v. King and Missouri v. McNeely.