US police are now legally allowed to take DNA samples from those who are arrested, even if they have not been convicted for a crime or gone to trial. The Supreme Court ruled 5-4 to uphold the controversial practice on Monday.

Critics claim that taking DNA samples from anyone in custody without a warrant is considered an unconstitutional “search”, but the high court believes otherwise. US police who arrest anyone for a felony are now legally allowed to take a cheek swab of the arrestee to obtain a DNA sample, regardless of whether or not an individual has been convicted.



The court compared this practice to fingerprinting and photographing, and ruled that it is “a legitimate police booking procedure that is reasonable under the Fourth Amendment.” The court also described DNA sampling as the 21st century version of fingerprinting.



“DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure,” Justice Anthony Kennedy wrote, representing the court’s majority decision.



The Supreme Court narrowly ruled 5-4 in favor of this practice, which Justice Samuel Alito described as “the most important criminal procedure case that this court has heard in decades.”



In response to critics’ claims that DNA sampling is an unconstitutional search, the court said that the procedure requires nothing beyond “a light touch” and does not require a surgical intrusion, which is why it does not constitute a “search”. Twenty-eight states and the federal government currently take DNA samples from those who are under felony arrest, but have not yet gone to trial.



Justice Antonin Scalia, who ruled with the minority, responded angrily to the ruling, suggesting that DNA sampling of arrestees may be a stepping-stone to future privacy violations of innocent Americans in the name of safety.



“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 season,” Scalia said in response to the decision. “This will solve some extra crimes, to be sure. But so would taking your DNA whenever you fly on an airplane.”



During oral arguments in February, Justice Sonia Sotomayor expressed her concern that DNA swabs could eventually be conduced in schools and workplaces if the court upholds the police procedure.



“Why don’t we do this for anybody who comes in for a driver’s license?” she asked.



But President Barack Obama has made comments in which he appears to favor DNA sampling of arrestees. In January 2012, the president signed the Katie Sephich Enhanced DNA Collection Act, which provides states with federal funding for police to conduct cheek swabs.



“It’s the right thing to do,” Obama said in a 2010 appearance on America’s Most Wanted, referring to the procedure of taking DNA from arrestees. “This is where the national registry becomes so important.”



The DNA sampling case landed on the Supreme Court’s desk this year after 26-year-old Alonzo King, a Maryland resident, was arrested for second-degree assault in 2009. Police took a DNA sample from his cheek and matched it to an unsolved rape from six years earlier. As a result, King was convicted of both the 2009 assault and the 2003 rape and was sentenced to life in prison. The rape conviction was later overturned after the Maryland Court of Appeals ruled that the DNA sampling was considered an unreasonable search. The state then brought the case to the Supreme Court, which on Monday upheld the police procedure.



But the procedure remains controversial, and Scalia warned that the decision will lead to dire consequences.



“Make no mistake about it,” Scalia wrote. “As an entirely predictable consequence of today’s decision your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.”

