The US Supreme Court held that taking DNA from those arrested for “serious” offenses is constitutional and is in the same vein as taking fingerprints and photos of arrestees. In Maryland v. King, the Defendant was arrested on a felony and a DNA swab of his mouth revealed he was the previously unknown assailant in a rape case 6 years earlier. He was eventually convicted of the rape charge. That Defendant challenged the constitutionality of his DNA being taken from him without consent pursuant to the 4th Amendment of the Constitution.
The Court held that the DNA swab was not a violation of the 4th Amendment because it was not intrusive as a cotton Q-tip was used to gather saliva from inside the cheek of the arrestee. Also, the DNA was used for the legitimate Government interest of identifying the arrestee so he could be properly housed in the jail based on his threat level which could be ascertained most accurately from DNA revealing his criminal past. The Court held that this legitimate Government interest outweighed the privacy rights of the individual. The Supreme Court limited collection of DNA samples to those arrested for “serious” offenses. The California DNA Collection Act limits collection to those arrested for felonies which seems to be in keeping with the Supreme Court decision.
Notably, the Supreme Court requires the destruction of DNA evidence if the person is not convicted of the offense and DNA evidence may not be entered into a national database unless a conviction occurs.
California courts require that the Defendant give DNA as part of a felony conviction and in Orange County many negotiated dispositions on misdemeanor cases result in the Defendant giving his DNA to the local Orange County DNA data base which may be searched by law enforcement agencies in the state and across the country.
Criminal Law Updates by the Law Offices of Orange County Defense Lawyer William W. Bruzzo (714) 547-4636
- Supreme Court Says Police Can Take DNA Swabs From Arrestees (baltimore.cbslocal.com)
- Police can take DNA swabs from arrestees (kvue.com)