Justice Kennedy writing for the majority, joined by Chief Justice Roberts and Justices Clarence Thomas, Stephen G. Breyer and Samuel Alito, Jr., held that taking a DNA sample via cheek swabbing is similar to fingerprinting and photographing an arrestee. Therefore taking an individual’s DNA after an arrest for a “serious crime” that is supported by probable cause is “reasonable under the Fourth Amendment” because it is a “legitimate booking procedure.”
However at issue in the case was not whether the police could collect DNA from an individual convicted of a crime, but rather whether the police could collect DNA from a person merely arrested for a crime. When arrested an individual is presumed innocent until proven guilty, and the Fourth Amendment gives citizens protection from unreasonable and warrantless searches.
Justice Scalia gave a summary of his dissent from the bench, which is “a rare move signaling deep disagreement.” Justice Scalia stated that when arrested for whatever reason, either rightly or wrongly, the police can take and enter someone’s DNA into the national database. Justices Ruth Bader Ginsburg, Sonia Sotamayor and Elena Kagan joined Justice Scalia in the dissent.
The ruling reversed the decision by the Maryland Court of Appeals, which held that “[un]der a balancing test that weighs an individual’s expectation of privacy against government interests, an arrestee’s expectation of privacy to be free from warrantless, suspicionless searches of his/her biological material outweighed, on the facts of this case, the government’s purported interest in using a secondary method to identify [the Defendant], when, in actuality, the obtention of the biological material was intended by the State to be used for general investigatory purposes.”