The U.S. Supreme Court is to decide this very issue this term (in fact, oral argument is today). Maryland along with many states, including California (i.e. Pen C 296(a)), have enacted laws to permit poilce to take a DNA swab of the mouth area of those merely arrested and accused of crimes before trial or conviction. The act of swabbing for DNA "...requires the collector to swab up-and-down and rotate a sterile cotton swab on the interior of the cheek in the subject's mouth, with enough pressure to remove cells." The purpose is ostensibly to feed state and national databases for future reference.
Defendant Alonso J. King was arrested for first and second degreee assault in Maryland and, his swabbed DNA, was added to Maryland's DNA database. King's DNA matched a DNA sample from a 2003 rape case. As a result, King was convicted of that offense.
King argued before the Maryland Court of Appeals (that state's highest court) that the involuntary swabbing upon his mere arrest for the assualt crimes was an unreasonable search and, thus, violated the Fourth Amendment to the United States Constitution. The Court of Appeals agreed and invalidated the search, but did not hold the DNA act unconstitutional on its face (that the statuory text, as written, was unconstitutional). The U.S. Supreme Court may go further and decide the constitutionality of the act itself.
Certainly for many readers, this is the case of bad facts make bad law. The emotional appeal present in many criminal case facts to let the defendant rot and side with the government is certainly present here because King does not appear to be an especially sympathetic character. However, when we (and the Court) undertake to interpret our most important body of laws from our Constitution, it must be an intellectual, rather than an emotional path and we must allow the result of that exercise to dictate the results in each case, whether the object of this exercise is sympathetic or repugnant. So, what should the Supreme Court decide here? Review of the Maryland Court of Appeals case may be helpful here.
Maryland's highest court determined that there was definitely no need for the DNA swabbing in order to prove the original assault cases against King. Following the U.S. Supreme Court's precedent in United States v. Knights, it held that an arrestee generally has a sufficiently weighty and reasonable expectation of privacy against warrantless, suspicionless searches that is not outweighed by the State's interest in assuring proper identification of King for the assault charges. Indeed, the Court highlighted that the State had sufficient identifying evidence that King was the culprit of the assaults that it did not need (and, probably, would not even be useful to have) the DNA sample for that case. So, that Court determined that the DNA act as applied to King's circumstances was unconstitutional. It did not, however, decide that the entire act, generally, was unconstitutional.
The question for you the reader and the U.S. Supreme Court is whether it should be a reasonable search, so that our Fourth Amendment is not offended, to subject certain classes of arrestees to involuntary DNA collection through swabbing of the mouth only for the purposes of maintaining a database, so that if that arrestee previously or prospectively re-offends, it will be possible to link the cases and prove guilt unrelated to the case in which the person was swabbed. Specifically, the Supreme Court is expected to apply the test set forth in the Knights case, i.e. assessing the degree of intrusion upon a person's privacy against the degree necessary for the promotion of legitimate government interests to decide whether the search is reasonable. By itself, of course, this test is unhelpful in ultimately predicting the U.S. Supreme Court's direction because, as we will see, both sides of that test have somewhat legitimate interests. The question will be where the Supreme Court decides the greater interest lies.
Obviously, sticking a cotton swab in someone's mouth without any ability to protest and swabbing up and down with enough pressure to remove cells is, at least, somewhat uncomfortable and definitely intrusive.
On the other hand, the government articulates its interest as that arrestees have some incident of recidivism (likelihood of repeat offending) and DNA collection makes crime detection of unidentifiable perpetrators substantially more likely. The Court has previously determined in Knights that the recidivism rate of probationers made it reasonable for the government to conduct warrantless seraches of a probationer's residence with less than probable cause (reasonable articulable suspicion) to believe a crime had been committed (probable cause is the express requirement of the Fourth Amendment for the issuance of warrants). Unlike the arrestee at issue in Maryland v. King (the case to be decided by the Supreme Court), probationers have already had the guilt of their original offense determined and have been sentenced. Even those probationers, though, have the protection of a legal standard, albeit the lower standard of reasonable suspcion to believe that the probationer committed a crime or otherwise violated the conditions of his or her probation. Arrestees are automatically subject to swabbing because of their status as having been arrested.
The Supreme Court has also previously determined that cavity searches (of which mouth swabbing is a type) is more intrusive than a search of a home, but recently upheld strip and cavity searches of arrestees of minor offenses about to be mingled with the general population in jails while awaiting disposition of their cases. See Florence v. Board of Chosen Freeholders. The state's articulable reason to allow cavity searches in that case were to prevent the obvious parade of horribles that could occur when allowing contraband such as weapons or drugs to be reached by an incarcerated general population. The Court deferred to prison officials as best to know how to deal with its populations.
In conclusion, the Supreme Court could go either way on this case. It could decide that the intrusion of mouth swabbing is too great an evil against the speculation that some arrestees who have not yet had their "day in court" may be linked to unsolved or otherwise unidentifiable offenses. The Court could decide that mouth swabbing is not that intrusive and quickly done and over, yet is too valuable a tool to solve unconnected offenses to give up. The Court could pick a hybrid of determining that an arrest for a more serious crime might justify the intrusion on privacy of swabbing (though it is difficult to see why, given the fact that the DNA swabbing of the type at issue here is always unrelated to the offense for which the person is arrested, and even the worst serial killer may be arrested on a mere misdemeanor, instead of a serious violent felony).
Since I see either police mistakes, lack of care in investigation or even malice upon targets of investigation and arrest and enough of the actually innocent too often, I would not agree that adding insult to injury by mouth swabbing those arrestees (admittedly, along with others not as deserving of sympathy) for the possiblity that a rare, occasional offense may be connected to an arrestee is worth compromising the values of our nation, in this case, embodied in the Fourth Amendment. I would require a more articulable basis connecting the swabbing with the charged offense or the otherwise unconnected offense before allowing police to collect the samples. We may have accepted a degree of freedom loss when ferreting out terrorism, but this DNA collection issue does not deal with terrorism; it applies to the run of the mill felonies (though some state statutes deal only with more serious felonies, but it could apply, in some states, to misdemeanors too) often involving our citizens.
The degree of our nation's civilization will continue to be measured by the manner in which it treats its prisoners, especially those who may yet be adjudged not guilty.