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Opinion U.S. Supreme Court votes to allow warrantless collection of DNA samples by police in 5-4 ruling

From The Rutherford Institue

In a devastating ruling handed down in Maryland v. King, a divided U.S. Supreme Court has approved the practice by police of forcefully obtaining DNA samples from individuals arrested for serious crimes, even though they are presumed innocent, without first obtaining a search warrant. As Justice Antonin Scalia, writing for the dissent, points out, the Court’s ruling succeeds only in burdening “the sole group for whom the Fourth Amendment’s protections ought to be most jealously guarded: people who are innocent of the State’s accusations.” Moreover, if such a dubious practice were to prevail simply for the sake of “solving more crimes,” as Scalia suggests, it would not take much to justify the “taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the “identity” of the flying public), applies for a driver’s license, or attends a public school.” The Supreme Court’s ruling in Maryland v. King is available at

“Any American who thinks they’re safe from the threat of DNA sampling, blood draws, and roadside strip and/or rectal or vaginal searches simply because they’ve ‘done nothing wrong,’ needs to wake up to the new reality in which we’re now living,” said John W. Whitehead, president of The Rutherford Institute, whose timely new book A Government of Wolves: The Emerging American Police State paints a chilling portrait of a nation in the final stages of transformation into a police state, complete with surveillance cameras, drug-sniffing dogs, SWAT team raids, roadside strip searches, blood draws at DUI checkpoints, mosquito drones, tasers, privatized prisons, GPS tracking devices, zero tolerance policies, overcriminalization, and free speech zones. “As the Supreme Court’s ruling in Maryland v. King shows, the mindset of those in the highest seats of power—serving on the courts, in the White House, in Congress—is a utilitarian one that has little regard for the Constitution, let alone the Fourth Amendment. Like Justice Scalia, all I can hope is that ‘today’s incursion upon the Fourth Amendment’ will someday be repudiated.”

In 2009, Maryland police arrested Alonzo Jay King Jr. on charges of assault. Relying on a state law which authorizes DNA collection from people arrested but not yet convicted of a crime, police carried out a cheek swab on King to obtain his DNA profile without first procuring a warrant. The DNA sample was then matched up against a database which identified him as having allegedly been involved in a 2003 rape. King was then convicted of the 2003 crime. On appeal, the Maryland Court of Appeals ruled in April 2012 that the state law violated the Fourth Amendment. In an unusual move, in July 2012, Supreme Court Chief Justice John Roberts issued a stay of the lower court’s ruling, prior to the Court’s even agreeing to hear the case, using the rationale that collecting DNA from people accused of serious crimes is “an important feature of day-to-day law enforcement practice in approximately half the states and the federal government.” In agreeing to hear the case, the Supreme Court was asked to determine whether the Fourth Amendment allowed law enforcement officials to collect DNA from people who have merely been arrested and so are presumed innocent. Yet as constitutional attorney John Whitehead warns, the Court’s subsequent 5-4 ruling which equates forcefully obtaining a DNA sample to “fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment,” further guts an already severely disemboweled Fourth Amendment. Justices Anthony Kennedy, John Roberts, Clarence Thomas, Stephen Breyer and Samuel Alito affirmed the practice of warrantless DNA grabs by the police. Issuing a strongly worded dissent were Justices Antonin Scalia, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan.


AG Cooper issues statement on U.S. Supreme Court decision

“It’s important that the Supreme Court has confirmed that DNA is the twenty-first century fingerprint. Collecting DNA samples from arrestees pinpoints suspects quickly, gets criminals off the streets sooner, saves tax dollars and investigative resources, and clears suspects who have been wrongly accused.”

The United States Supreme Court on Monday ruled that law enforcement can collect DNA samples from arrestees, equating the practice to fingerprinting and photographing suspects upon arrest.

At Cooper’s urging the North Carolina legislature approved collecting DNA upon arrest for violent felonies starting in 2011.

In North Carolina, the State Crime Lab, a part of the State Bureau of Investigation in Cooper’s Department of Justice, maintains the state’s DNA database and provides law enforcement with analysis of evidence that may contain DNA. The North Carolina DNA database contains nearly 240,000 profiles and has helped to solve more than 2,200 cases since its inception in 1994.

The database includes profiles from all convicted felons and since February 1, 2011 also includes profiles from certain arrestees under the state law backed by Cooper. The lab has obtained hits to 47 arrestee DNA profiles since the law’s enactment. A hit can help law enforcement solve a case with no known suspects and can also clear wrongly accused suspects.

In North Carolina, local law enforcement agencies take DNA samples from certain arrestees by cheek swab. The samples are then analyzed and uploaded to the state and national DNA databases. The samples are run against DNA taken from unsolved crimes to look for matches, and stored to compare against evidence collected from crime scenes. If an arrestee isn’t convicted or the case is dismissed, the arrestee’s sample is removed.

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