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DNA Testing Collides with the Fourth Amendment

Posted by on June 5, 2013 in Recent Cases - Comments Off
Supreme Court rules that a search warrant is not needed to obtain a DNA sample at time of arrest.

Supreme Court rules that a search warrant is not needed to obtain a DNA sample at time of arrest.

Earlier this week, the Supreme Court issued its opinion in Maryland v Kingholding that police may obtain DNA samples of the accused at the time of arrest.  DNA samples are obtained by swabbing the inner cheek.  Writing for the majority in a 5-4 opinion, Justice Kennedy felt that a cheek swab was not overly intrusive nor a violation of privacy.  In a somewhat unusual grouping of the justices, Antonin Scalia joined with Elena Kagan, Ruth Bader Ginsburg, and Sonia Sotomayor, and wrote for the dissent.  His strongly worded comments begin with, “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.  That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment.” The majority considered analogies between fingerprinting and DNA samples to be valid.  The government’s interest in solving more crimes was weighed heavily.  Scalia admits that “today’s judgment will, to be sure, have the beneficial effect of solving more crimes;  then again, so would the taking of DNA samples from anyone who flies an airplane, applies for a driver’s license, or attends public school.” He finished by alluding to James Madison when he wrote, “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.”   What do you think?

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