PFoL Staff Weighs In On SCOTUS DNA Swab Decision

With the Supreme Court decision on the DNA swabs after arrests coming down, several of the PFoL authors expressed interest in writing about it. I decided to ask everybody to summarize whether or not they agreed or opposed the decision and why. Here is what they had to say:


“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated shall be violated in a de minimis manner…”  This parody of the 4th Amendment sadly is Justice Kennedy’s rationale for permitting DNA collection from anyone who is arrested, without a warrant or any judicial oversight.

A DNA swab is an intrusion into the body of an individual. Period. As it stands now, anyone *arrested* — not convicted, not charged — simply arrested for a “serious” crime can forcibly have their DNA taken for “identification purposes.”  This presupposes a DNA collection database.  After all, once the police have the DNA, how can it be used for identification purposes without some sort of database in which to compare the sample?

The “fingerprint” analogy is totally ridiculous, as Justice Scalia points out in a scathing dissent which is absolutely worth reading.  As for my take on the fingerprint red herring, it is simple for me: fingers are outside of the body.  There is no physical intrusion into the person.  A DNA swab taken from an arrestee’s cheek without consent and without a warrant is antithetical to the letter and spirit of the 4th Amendment.  Indeed, it is a search, a seizure, and wholly unreasonable and without suspicion or basis.

Without judicial oversight, the potential for abuse is staggering — especially in this day and age when prosecutors and police are overzealous.

Civil libertarians on either side of the aisle should be hopping mad over this decision. Barack Obama is thrilled with it (ref: No surprise. Those on the left will fall in line, assuredly.
Kevin – Oppose

This decision will weaken the principle of the presumption of innocence. By allowing police to take DNA of suspects without warrant, regardless of what crime they’ve been accused of, strikes me as law enforcement going on a fishing expedition. Also, building a DNA database of people who have merely been arrested and not convicted opens the door to civil liberties abuses by law enforcement.


Several studies have reported that cataloging criminals early in their “careers” can deter them from perpetrating future crimes. I am not against making society safer for the public. My concern comes from a scientific viewpoint. Taking DNA samples from cheek swabs, while not a physically invasive procedure like taking blood or tissue samples, will permit analysis of an individual’s DNA sequence and that data will be stored in a huge database, like CODIS.

DNA is more than just identification, more than simply a fingerprint or an external manifestation of a person’s presence at a crime. DNA is intensely personal – it is the building block of an individual’s biological life. Each person’s DNA sequence harbors information about diseases and traits that could be abused or used for purposes other than the original intent of identification of the perpetrator of a criminal act.

Having an individual’s genomic information is a powerful forensic tool. Irrespective of an arrestee’s eventual innocence or guilt, a bigger question to me is what happens to the DNA sample and the sequence information in the databases? There are no unified laws to protect DNA information in the criminal databases. Each state deals with it differently. Nor are there common procedures to purge databases of DNA profiles in the event of innocence or acquittal.

The Genetic Information Nondiscrimination Act of 2008 (GINA), signed into law by President George W. Bush, protects an employee or job applicant from discrimination due to DNA information, such as genetic disease or even risk of developing a genetic condition. It is also meant to protect an individual’s offspring and relations. Obviously, a warrant-less cheek swab of an arrestee does not fall under “employment conditions”. But now law enforcement can legally obtain a DNA sample that, by its very heritable nature, could give genetic information about the arrestee as well as people related to him/her. This seems an infringement of not only the arrestee’s 4th amendment rights, but of the offsprings’ and relations’ privacy as well.

DNA analyses can accurately identify individuals who commit crimes. But the crime has to be committed first. Currently, scientists cannot interpret from DNA sequence if a person is predisposed to a life of crime. Thus, the risk of not being able to keep such personally defining genetic information secure, coupled with potential abuse of genetic information, and the inevitability of a national registry of Americans’ most personal information makes me oppose the SCOTUS’ ruling to allow warrant-less acquisition of arrestees’ DNA.

SR MannOppose

Taking a DNA sample is not the same as a police interrogation or even a set of fingerprints. A DNA sample is used as evidence when it is directly applicable to the charges that lead to a suspect’s arrest. The man who brought the case to the Supreme Court was taken in for an assault charge and the police promptly obtained a DNA sample.

DNA evidence isn’t necessary to connect a suspect to an assault charge. Furthermore, as Justice Scalia stated in his dissent to the ruling, “[T]he government may not search its citizens for evidence of a crime unless there is a reasonable cause to believe that such evidence will be found.” The Fourth Amendment explicitly spells out the following: authorities do not have the privilege of obtaining whatever they want from an arrested suspect without probable cause. A citizen does not lose his or her right to be protected against unreasonable searches and seizures because they’re in handcuffsWhere is the probable cause for DNA evidence when someone is arrested for assault charges? In my humble opinion, this ruling directly undermines our constitutional rights under the Fourth Amendment.

The catch is that the guy who brought the case before the Supreme Court was convicted of first-degree rape after the DNA sample connected him to an unsolved case. He doesn’t garner a lot of sympathy. In this particular instance, it is necessary to separate (1) the character of the person bringing infringement of Constitutional rights to attention from (2) considering the consequences of that infringement. In order to evaluate this ruling’s implications, one has to be able to ignore that this guy is a piece of shoes who deserves to be prison. Most importantly, one needs to focus on what this means for innocent people who are arrested for any crime of any kind.


I’m with Scalia on this one. This is simply too broad an intrusion into the rights of the American people. The majority rationalizes collecting DNA as an attempt to identify a criminal, but that is insufficient. We have adequate systems for that now. Why use DNA?

The reality is that the only reason DNA might be collected is to trawl for evidence of past crimes. The Fourth Amendment protects us from being searched without probable cause, and there is simply no justification to search someone for evidence related to a crime for which they are not presently being arrested. Unfortunately, this means the odd criminal escapes the reach of the law. But the alternative is that the government can do violence to your rights if it so chooses.


While there’s an immediate comfort in solving crimes effectively, the state was not supposed to be able to search you without probable cause for a crime. Certainly I’m glad that this man was convicted but setting those emotions aside, the DNA search was not as justified simply for identification, it was to compare with cold evidence for a crime that the state had no evidence to consider this man a suspect. Fingerprinting was sufficient for identification for the suspect. Scalia is completely right, a DNA database for everyone who interacts with the State would solve more crimes but as he said  “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.”

The heartening part of this case is that law enforcement only tests extremely small sections of your DNA and does not retain markers for the entire genome.

“An individual’s overall CODIS profile is 13 such pairs of numbers. To produce the profile, the laboratory measures the lengths of the 13 pairs of alleles. It does not examine the other 99.9999% of the genome” (page 25)

So in that sense, I can see why the majority found it similar enough to fingerprinting. I’d have more comfort in the majority opinion if the DNA was being taken to solve the case the suspect was being arrested for. In this case it was not. As usual, the concerning part is the precedence. One has to believe in the complete benevolence of the state to have comfort in convictions that rely solely on one test run by the state. Our founders had no such faith in government and purposely outlined rights that would put the burden on the state to prove guilt.



To be sure, When the 5-4 decision for this case was was first announced, I saw the reaction on Twitter with the assumption by many that it was the “conservative court” who brought this upon us. Turns out, it was Justice Breyer who tipped the scales while Justice Scalia dissented. His dissent was scathing as he blasted the majority for the decision. It is well worth reading.

Scalia is 100% on the mark. The comparison of fingerprints to a DNA swab is absurd. Fingerprints are routinely used as a method of determining identification whereas DNA is largely an investigative tool and similar to that of a search warrant. If “public safety” is such a concern, then what would be the objection to taking a DNA sample of everybody born in the United States and use it for future crime solving (ie ‘Gattaca‘). There is also the potential for abuse. There are corrupt cops. There are corrupt prosecutors. DNA evidence these days is nearly a slam dunk in criminal prosecutions.

Scalia closed with this: “I therefore dissent, and hope that today’s incursion upon the Fourth Amendment, like an earlier one, will some day be repudiated.”



The idea that cops can take DNA swabs without a warrant is horrific, and allowing this to happen is just another example of how our legal system is failing to keep up with technological advances (CISPA or SOPA, anyone?).

It scares me more that “super-progressive liberal” President Obama (read: secret NeoCon) called for a national DNA registry in 2010. Why should someone who has been wrongfully arrested be subjected to having their DNA entered into a national database at all? Why don’t we just take a DNA swab for everyone who applies for a State ID or Driver’s License? It would kill two birds with one stone: You’ve arrested a possible suspect and discovered an undocumented immigrant.

“But what about fingerprints? We already have a database for those!” This is not the same as a fingerprint registry; it is far more intrusive, and a horrifyingly outrageous infringement on privacy.