Cheek swab for DNA.

Cheek swab for DNA.

Maryland V. King OKS pre-conviction DNA testing

Attorney Jermaine Wyrick

Attorney Jermaine Wyrick

By Attorney Jermaine Wyrick

June 27, 2013
A June 3, 2013 U.S. Supreme Court ruling diminished the privacy that individuals have in their genes.  The crux of the controversy, as with any search, is balancing “the promotion of legitimate governmental interests” against the “degree to which the search intrudes upon an individual’s privacy.” 

In a landmark decision, Maryland v. King, the United States Supreme Court decided that police can swab the cheeks of arrested individuals for DNA samples – samples that contain the intimate details of each person’s genetic makeup, without violating the Fourth Amendment.  (Read decision at Maryland V King USSC.)

Alonzo King

Alonzo King

In 2009, a 26 year old Maryland man, Alonzo King, DNA was collected after his arrest on assault charges.  His DNA was later matched with a sample from a rape kit in another case, six years prior.  Consequently, he appealed his rape conviction.  The Maryland Supreme Court held the state law that authorizes the warrantless collection and use of the pre-conviction DNA sample was unconstitutional.  Maryland is one of 28 states including Arizona, Louisiana, Michigan, Minnesota, Missouri, the Carolinas, and Virginia – to enact laws allowing the pre-conviction collection of DNA. 

Maryland Chief Deputy Attorney General Katherine Winfree argued a “Just trust us” defense that the law “enables the state to identify perpetrators of the crimes.”  Specifically, 225 DNA profile matches made led to 75 prosecutions and 42 convictions.  Furthermore the Maryland law limits DNA data collection to suspects in cases involving violent crimes.

DNA handcuffsWinfree distinguished between traffic stops, which are inherently “brief and temporary,” from arrestees in police custody that are suspected of dangerous offenses.  Moreover, Winfree argued, “The cornerstone of our argument is that when an individual is taken into custody on a probable cause arrest, that person by virtue of being in that class of individuals whose conduct has led the police to arrest him…surrenders a substantial amount of liberty and privacy.” 

Conversely, Justice Elena Kagan stated however, “Just because you’ve been arrested doesn’t mean that you lose the privacy expectations and things you have that aren’t related to the offense that you’ve been arrested for.” 

Defense attorney Kannon Shagmugam.

Defense attorney Kannon Shagmugam.

Attorney Kannon K. Shanmugan argued for the defendant that the Maryland statute violates the basic legal tenet that “warrantless, suspicionless searches are presumptively unconstitutional.”   Attorney Shanmugan stated that cheek swabs are a different matter, “There is an intrusion into the body that triggers the application of the Fourth Amendment.”  

The Supreme Court decided that DNA sampling, after an arrest “for a serious offense” and when officers “bring the suspect to the station to be detained in custody,” does not violate the Fourth Amendment prohibition of unreasonable searches.  Moreover, the court reasoned that, “taking and analyzing a cheek swab of the arrestee’s DNA is like fingerprinting and photographing, a legitimate booking procedure that is reasonable under the Fourth Amendment.  Justice Alito, at the oral argument stated that DNA sampling, “involves a very minimal intrusion on personal privacy.”       

Scalia opinionJustice Roberts questioned whether the expectation of privacy in one’s DNA information is reasonable, “when it’s left everywhere you have been.”  Justice Stephen Breyer opined “It goes both ways.”  He questioned the practical application of a ruling that restricts the state’s use of DNA evidence to solve crimes at a time when defendants increasingly seek the same type of evidence to exonerate them – all based on its’ inherent accuracy.” 

The court reasoned DNA testing may “significantly improve the criminal justice system and police investigative practices, by making it possible to determine whether a biological tissue matches a suspect with near certainty.”  Furthermore, from a practical matter, the “buccal swab” procedure, which is quick and painless, requires no “surgical intrusion beneath the skin, and poses no threat to the arrestee’s ‘health or safety.”            

Interestingly, even conservative Justice Antonin Scalia who usually sides with law enforcement over individual rights dissented in favor of individual rights.  He stated, “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.”  He stated at oral arguments, “To catch the bad guys is a good thing.  But you know the Fourth Amendment sometimes stands in the way.”   

Jermaine A. Wyrick,  Attorney  can be reached at (313) 964-8950, or by E-Mail:  Attyjaw1@Ameritech.net, and is available for speaking engagements on legal topics. 

Print Friendly, PDF & Email
This entry was posted in Uncategorized. Bookmark the permalink.


  1. Pingback: Forbidden News » Warrantless DNA Testing: Why A National DNA Database Is On The Horizon

  2. Pingback: Warrantless DNA Testing: Why A National DNA Database Is On The Horizon

  3. Karen Foster says:

    A DNA profile is not “Intimate details.” It is a series of numbers much like the numbers we all see on products at the store; it merely identifies the suspect. This is a DNA profile: 11,11,12,12,12,13,10,20,29,30,16,18,12,
    If given the choice, which would you prefer on the internet and the evening news; your DNA profile or your mug shot? A mug shot is much more invasive of your privacy. If there is a DNA match, the suspect is still innocent until proven guilty. Only a jury determines guilt or not guilty.

    My daughter’s killer was in jail 2 months before he abducted, raped and killed her, out on parole when he killed her and back in jail 2 months after killing her. Had we collected DNA on arrest the crime would have been solved within months. It took 12 years to identify him and another 5 years to prosecute him. He was in a NH prison for almost 4 years before they finally entered his DNA into CODIS, our national DNA database. If his DNA had been entered immediately on conviction we would have had the match at least 4 years earlier and would have been able to charge him with kidnapping. The statute of limitations was 10 years on kidnapping at the time. It is critical that we collect DNA on arrest. I could write a book on all the benefits.

    This decision will help protect the innocent and keep the innocent out of jail. No one should get away with murder, rape, nor any other heinous crime. With collection of DNA on arrest, they won’t! This US Supreme Court decision is a landmark decision, DNA is the fingerprint of the 21st Century. It allowed so many breath a heavy sigh of relief! It will help balance the scales of justice.

    • Diane Bukowski says:

      I am so very sorry for your loss; the pain you must have gone through is unimaginable. It was a horrendous crime, and your daughter did not deserve such torture and death. However, the point being made in the article is that the decision allows police to collect DNA samples at the time of arrest, PRIOR to conviction. You are asking that post-conviction DNA samples be collected. That is already the practice in Michigan and other states. I wish you only the best; my heart goes out to you.

Leave a Reply

Your email address will not be published. Required fields are marked *

Comment moderation is enabled. Your comment may take some time to appear.