Oh yes, DNA swabs for the purpose of identification from arrestees is acceptable under the 4th amendment.
Wait, what? I am baffled at what happened at the Supreme Court yesterday.
It is already lawful to take DNA swabs and compare to the database of other crimes AFTER one enters a guilty plea or is found guilty. That makes more sense to me, but to do so with someone presumed innocent is somewhat baffling. Furthermore, the majority masking this important for identification purposes is outright insane! There is no way in which the DNA test was used in King to identify him, that was already done by other evidence. They had King in custody, so why not get a warrant for his DNA? Oh yeah, because there is not probable cause for which said warrant would be granted! So my question is: if you cannot get a warrant, why is it ok to do the search without the warrant?
I am hardly a constitutional scholar. I am a second-year law student, almost third. Rising 3L? Who cares, labels are for groceries…. However, I do know that there are some limits to what is and isn’t acceptable in situations like this. Right now I’m looking at Winston v. Lee, 470 U.S. 753 that says “Such an intrusion would not be reasonable […] given the state’s failure ‘to demonstrate a compelling need for it.’ no such need was deemed present, as the state had considerable other evidence connecting defendant with the [crime]” in regard to the probable cause to remove a bullet that was lodged in the defendant, which was fired by a victim in a robbery, potentially corroborating his involvement in the crime. No doubt, the removal of the bullet instance can be distinguished, perhaps, because it is an entry into the body, and some will argue that swabbing the inside of the cheek for DNA is not, but I’m not sure I like that argument either. Regardless, the point is that the evidence to be gained by the search is necessary to prove the crime. Not to prove any crime.
I also see this as quite different than Schmerber v. California where the courts first developed the test utilized in Winston. This was the case where they had a DUI suspect and they wanted to draw blood to test for blood alcohol content. Decidedly different here, what is acceptable is based upon the evanescence of the evidence. In an hour, two hours, or even more the alcohol content would greatly dissipate. I’m not sure King, or any other defendant for that matter, has chameleon DNA that may change or be altered between his arrest to his sentencing.
Is there a public policy reason for DNA testing, cross-referencing, and potentially solving other crimes: yes.
Should the above DNA testing be constitutional, legal, etc: sure.
How now, brown cow? Well, I think its a simple process, like all law enforcement:
1) Do you job right (search, seizure, etc)
2) Get the right guy
3) Get a guilty plea or verdict
4) Get your DNA sample
5) Win, constitutionally
Well, now that Maryland v. King is here you can skip steps 1-3, but I digress.