DNA swabs on suspects upheld by Supreme Court

High court ruling may affect debate on Mass. policy

The Supreme Court in Washington, D.C.
AP File
The Supreme Court in Washington, D.C.

WASHINGTON — The Supreme Court narrowly ruled Monday that states could take DNA samples from persons accused of serious crimes, reinvigorating a debate in Massachusetts over whether the state should join more than two dozen others in a practice that critics say threatens civil liberties.

In the highly watched case, the 5-4 decision will allow police officers to take DNA samples without a warrant, making the swabs as common as fingerprinting.

“Taking and analyzing a cheek swab of the arrestee DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment,” Justice Anthony Kennedy wrote for the court’s majority, referring to the constitutional amendment that prohibits unreasonable searches.


In a sharply worded dissent, Justice Antonin Scalia said the decision would enable a dangerous expansion of police powers.

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“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,’’ Scalia wrote. ‘‘This will solve some extra crimes, to be sure. But . . . so would taking your children’s DNA when they start public school.”

All states require police to take DNA samples from those convicted of serious crimes. In addition, 28 states and the federal government require authorities to take the samples after arrests for certain crimes, before the suspect is tried. Massachusetts does not, despite calls by Attorney General Martha Coakley for the Legislature to pass such a law. After the court decision, she reiterated that request.

“This step will help solve crimes, hold violent criminals accountable, and prevent crime in the future,’’ Coakley said in a statement to the Globe. “It will also help ensure that innocent people are not falsely accused.”

Several Massachusetts lawmakers have filed legislation requiring any person arrested and charged with a felony to submit a DNA sample to police. Those results would be entered into the state’s DNA database.


The legislation has been referred to the Joint Committee on the Judiciary, but no action has been taken.

Representative Danielle W. Gregoire, a Marlborough Democrat, first filed legislation on the issue in 2009. A constituent, who was raped while she was in college and has testified at State House hearings, said her attacker would have been caught earlier if he had been required to submit DNA.

“With what happened with the Supreme Court today, I hope we can advance it this session,” Gregoire said.

House minority leader Bradley H. Jones, Jr., of North Reading has filed similar measures.

“With fingerprints left at a crime scene you can say, ‘Look we’ve got a possible match.’ Similarly, there may be DNA evidence left at a crime scene that may be an identifier,” said Jones. “Fingerprints have been long held to be not unreasonable to take when someone is arrested. . . . [DNA tests are] not some in-depth procedure. It’s basically a mouth swab, like a strep throat test.”


But the bills have not gained traction, in part because of opposition from civil rights groups and others who worry that the information could be used improperly. One hurdle for supporters may be the current scandal involving the state drug laboratory, in which chemist Annie Dookhan allegedly mixed drug samples and falsified results. Both the drug lab and the DNA testing are done within the state’s Forensic Services Group.

The ACLU’s Massachusetts chapter did not respond to a request for comment, but Max Stern, president of the Massachusetts Association of Criminal Defense Lawyers, said his group would oppose such legislation.

“We strongly believe that a person is innocent until proven guilty,” he said. “And they shouldn’t have to be subject to what we would regard as a search and seizure of very personal information simply on the basis of the fact that they are arrested of something they may be cleared of committing.”

Suffolk District Attorney Daniel F. Conley praised the Supreme Court decision, and downplayed privacy concerns.

“The DNA swabs we take for law enforcement purposes have one purpose: to identify the subject to the exclusion of any other person,” he said. “They carry no private or medical information, nor are we interested in that information.”

The Supreme Court case involved Alonzo King, a man from Maryland who was convicted of raping a 53-year-old woman. The rape occurred in 2003, but no one was charged until 2009, when King was arrested and charged with second-degree assault in a separate case.

Because Maryland law allowed it for certain crimes, including murder and assault, police took a DNA cheek swab. That DNA profile matched a sample from the rape six years earlier. King was convicted and sentenced to life in prison on the rape charge.

King appealed, arguing that his privacy rights were violated because police should not have been allowed to take his DNA. The Maryland Court of Appeals agreed, ruling that it was illegal for the state to take King’s DNA without approval from a judge.

The state of Maryland appealed the matter to the Supreme Court.

Because states make their DNA databases available to the FBI, the decision gives federal prosecutors more information at their fingertips. A national index of DNA profiles maintained by the FBI contains 10.3 million criminal profiles, as well as nearly 1.5 million profiles of those who have been arrested but not yet tried or convicted, according to FBI data updated in April.

Massachusetts supplied 102,000 of the criminal profiles.

The court’s ruling brought forward an unusual coalition among the justices. In the majority were conservative-leaning justices Samuel Alito, Clarence Thomas, and Chief Justice John Roberts; liberal-leaning Stephen Breyer; and Kennedy, who is often a swing vote.

Those dissenting were the usually conservative Scalia and usually liberal justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan.

The debate focused on the balance between the constitutional right against unreasonable searches and the interests of law enforcement.

Kennedy, who wrote the majority opinion, said the DNA samples do not violate that constitutional right and can ensure that an arrestee is properly identified and that his ties to other crimes are discovered.

Matt Viser can be reached at