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Cheeky Move? Supreme Court Rules in Favor of No-Warrant DNA Mouth Swab

Posted by Scot D. Goldberg | Jun 03, 2013 | 0 Comments

The Supreme Court has decided that police do not need a warrant in order to obtain a DNA swab from a criminal suspect's mouth after an arrest. In a 5-4 decision, the comparison was made to fingerprinting an arrestee, and the ruling came out in favor of what may mean far-reaching ramifications in the methods police are allowed to use after a person has been arrested.

The court majority wrote in their decision that taking a DNA swab of a suspect's mouth could be considered a “legitimate booking procedure that is reasonable under the Fourth Amendment”.

But four of the Justices, along with many privacy rights groups around the country, feel this move could open the floodgates of improper invasion of privacy issues. Opponents feel that law enforcement officials, while claiming a suspect's DNA would only be used in a arrestee's criminal prosecution, may use the person's biological makeup information for many purposes unrelated to the arrest.

The case involves a Maryland man convicted of a 2003 rape. The same man was re-arrested four years ago on an unrelated charge, and his DNA sample was automatically obtained then. That sample was then linked to the earlier sexual assault.

Justice Antonin Scalia didn't mince words when he expressed his disagreement with the ruling, saying the court's reasoning established a “terrifying principle”. He went on to state that the Fourth Amendment is in place to balance the legitimate interests of law enforcement against an individual's privacy rights. A major concern in the Justice's debate was whether the use of newly-developed DNA collection and testing technology, allowing identification to be completed in around 2 hours, would lead to errors by overworked testing lab technicians, sending an innocent person to jail.

No matter what side of the fence you're on, the Supreme Court's decision may bring with it wide-reaching implications when it comes to the definition of unlawful search and seizure, and any protection covered by the Fourth Amendment of the US Constitution.


Photo Credit: Mark Fischer via:, cc

About the Author

Scot D. Goldberg

Scot Goldberg is a founding partner of the Goldberg Law Firm. See his attorney profile for more information.


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