CRF Blog

The Maryland v. King Opinion

by Damon Huss

Yesterday, the U.S. Supreme Court issued its opinion in Maryland v. King, a case which deals with the Fourth Amendment’s protection against unlawful search and seizure. The issue in the case was whether police may obtain DNA samples from persons arrested for felonies.

In this case, a man was arrested in  2009 in Maryland for assault using a shotgun, and under state law, police took a sample of his DNA from the inside of his cheeks with a cotton swab (or filter paper). It turned out that his DNA matched DNA found at the scene of an unsolved rape from 2003. He was later convicted for that rape.

The Supreme Court held that when police arrest someone based upon probable cause, taking a cheek swab of that person’s DNA is a legitimate booking procedure, akin to taking the person’s fingerprints or mug shot. Writing for the 5-4 majority, Justice Anthony Kennedy stated that persons in police custody have diminished expectations of privacy, and that the “cheek swab” is a minimal invasion of privacy. Therefore, a “brief intrusion of an arrestee’s person is subject to the Fourth Amendment , but a swab of this nature does not increase the indignity already attendant to normal incidents of arrest. ”

This case is interesting politically as well as legally, in that Justice Antonin Scalia, one of the court’s most well-known conservatives, dissented along with three of the court’s more liberal justices, i.e., Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. In turn, Justice Stephen Breyer, also considered liberal, sided with conservatives in the majority.

In his dissent, Justice Scalia stated that the Fourth Amendment prohibits law enforcement from searching someone for evidence of a crime when there is no reason to suspect that person of the crime. Moreover, Scalia noted the prohibition is “categorical.” “The Court’s assertion,” writes Justice Scalia, “that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous.” (Emphasis in original.)

To read the Supreme Court’s full opinion at Bloomberg Law, click here.