In a major change of police powers having significant impact on a person’s right to privacy, the United States Supreme Court, in a 5/4 decision, on June 3, 2013, took the position that police may swab the cheeks of anyone arrested for a serious crime and then perform DNA testing on the saliva samples to ascertain whether or not that person has committed any other infractions. DNA testing is often considered to be in the same arena as fingerprinting. Conservative Supreme Court Justice Antonin Scalia, in a sharply worded dissent, reasoned as follows: “Make no mistake about it: because of today’s decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason.” Justice Scalia, in an unusual circumstances, joined with the Court’s three most liberal justices, Ruth Bader Ginsburg, Sonia Sotomayor and Elana Kagan, in dissenting. This is an unusual coalition that sparks interest and the possibility that this decision will have long-standing ramifications with the Court and with the law enforcement community. Justice Samuel A. Aliota Jr., who voted with the majority, called this case “perhaps the most important criminal procedure case that this court has heard in decades.”
The Court’s decision in Maryland v. King, U.S. Supreme Court, No. 207, did not uphold the expectation of privacy against warrantless searches. The significance here is law enforcement’s ability to take the swabs before the conviction of a crime, not after. Anyone arrested for a serious crime will have his/her DNA taken. It will not be an option. It will be mandatory. There is no need for a warrant. This is a decision that will impact every person in America.