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SUPREME COURT OF THE UNITED STATES
_________________
No. 12–207
_________________
MARYLAND, PETITIONER
v. ALONZO JAY
KING, Jr.
on writ of certiorari to the court of appeals
of maryland
[June 3, 2013]
Justice Kennedy delivered the opinion of the
Court.
In 2003 a man concealing his face and armed with
a gun broke into a woman’s home in Salisbury, Maryland. He
raped her. The police were unable to identify or apprehend the
assailant based on any detailed description or other evidence they
then had, but they did obtain from the victim a sample of the
perpetrator’s DNA.
In 2009 Alonzo King was arrested in Wicomico
County, Maryland, and charged with first- and second-degree assault
for menacing a group of people with a shotgun. As part of a routine
booking procedure for serious offenses, his DNA sample was taken by
applying a cotton swab or filter paper—known as a buccal
swab—to the inside of his cheeks. The DNA was found to match
the DNA taken from the Salisbury rape victim. King was tried and
convicted for the rape. Additional DNA samples were taken from him
and used in the rape trial, but there seems to be no doubt that it
was the DNA from the cheek sample taken at the time he was booked
in 2009 that led to his first having been linked to the rape and
charged with its commission.
The Court of Appeals of Maryland, on review of
King’s rape conviction, ruled that the DNA taken when King
was booked for the 2009 charge was an unlawful seizure because
obtaining and using the cheek swab was an unreasonable search of
the person. It set the rape conviction aside. This Court granted
certiorari and now reverses the judgment of the Maryland court.
I
When King was arrested on April 10, 2009, for
menac-ing a group of people with a shotgun and charged in state
court with both first- and second-degree assault, he was processed
for detention in custody at the Wicomico County Central Booking
facility. Booking personnel used a cheek swab to take the DNA
sample from him pursuant to provisions of the Maryland DNA
Collection Act (or Act).
On July 13, 2009, King’s DNA record was
uploaded to the Maryland DNA database, and three weeks later, on
August 4, 2009, his DNA profile was matched to the DNA sample
collected in the unsolved 2003 rape case. Once the DNA was matched
to King, detectives presented the forensic evidence to a grand
jury, which indicted him for the rape. Detectives obtained a search
warrant and took a second sample of DNA from King, which again
matched the evidence from the rape. He moved to suppress the DNA
match on the grounds that Maryland’s DNA collection law
violated the Fourth Amendment. The Circuit Court Judge upheld the
statute as constitutional. King pleaded not guilty to the rape
charges but was convicted and sentenced to life in prison without
the possibility of parole.
In a divided opinion, the Maryland Court of
Appeals struck down the portions of the Act authorizing collection
of DNA from felony arrestees as unconstitutional. The majority
concluded that a DNA swab was an unreasonable search in violation
of the Fourth Amendment because King’s “expectation of
privacy is greater than the State’s purported interest in
using King’s DNA to identify him.” 425 Md. 550, 561, 42
A.3d 549, 556 (2012). In reach- ing that conclusion the Maryland
Court relied on the deci-sions of various other courts that have
concluded that DNA identification of arrestees is impermissible.
See,
e.g., People v.
Buza, 129 Cal. Rptr. 3d 753
(App. 2011) (offi-cially depublished);
Mario W. v.
Kaipio, 228 Ariz. 207, 265 P.3d 389 (App. 2011).
Both federal and state courts have reached
differing conclusions as to whether the Fourth Amendment prohibits
the collection and analysis of a DNA sample from persons arrested,
but not yet convicted, on felony charges. This Court granted
certiorari, 568 U. S. ___ (2012), to address the question.
King is the respondent here.
II
The advent of DNA technology is one of the
most significant scientific advancements of our era. The full
potential for use of genetic markers in medicine and science is
still being explored, but the utility of DNA identification in the
criminal justice system is already undisputed. Since the first use
of forensic DNA analysis to catch a rapist and murderer in England
in 1986, see J. Butler, Fundamentals of Forensic DNA Typing 5
(2009) (hereinafter Butler), law enforcement, the defense bar, and
the courts have acknowledged DNA testing’s
“unparalleled ability both to exonerate the wrongly convicted
and to identify the guilty. It has the potential to significantly
improve both the criminal justice system and police investigative
practices.”
District Attorney’s Office for Third
Judicial Dist. v.
Osborne, 557 U.S. 52, 55 (2009).
A
The current standard for forensic DNA testing
relies on an analysis of the chromosomes located within the nucleus
of all human cells. “The DNA material in chromosomes is
composed of ‘coding’ and ‘noncoding’
regions. The coding regions are known as
genes and contain
the information necessary for a cell to make proteins.
. . . Non-protein-coding regions . . . are not
related directly to making proteins, [and] have been referred to as
‘junk’ DNA.” Butler 25. The adjective
“junk” may mislead the layperson, for in fact this is
the DNA region used with near certainty to identify a person. The
term apparently is intended to indicate that this particular
noncoding region, while useful and even dispositive for purposes
like identity, does not show more far-reaching and complex
characteristics like genetic traits.
Many of the patterns found in DNA are shared
among all people, so forensic analysis focuses on “repeated
DNA sequences scattered throughout the human genome,” known
as “short tandem repeats” (STRs).
Id., at
147–148. The alternative possibilities for the size and
frequency of these STRs at any given point along a strand of DNA
are known as “alleles,”
id., at 25; and multiple
alleles are analyzed in order to ensure that a DNA profile matches
only one individual. Future refinements may improve pres- ent
technology, but even now STR analysis makes it “possible to
determine whether a biological tissue matches a suspect with near
certainty.”
Osborne,
supra, at 62.
The Act authorizes Maryland law enforcement
author-ities to collect DNA samples from “an individual who
is charged with . . . a crime of violence or an attempt
to commit a crime of violence; or . . . burglary or an
attempt to commit burglary.” Md. Pub. Saf. Code Ann.
§2–504(a)(3)(i) (Lexis 2011). Maryland law defines a
crime of violence to include murder, rape, first-degree assault,
kidnaping, arson, sexual assault, and a variety of other serious
crimes. Md. Crim. Law Code Ann. §14–101 (Lexis 2012).
Once taken, a DNA sample may not be processed or placed in a
database before the individual is arraigned (unless the individual
consents). Md. Pub. Saf. Code Ann. §2–504(d)(1) (Lexis
2011). It is at this point that a judicial officer ensures that
there is probable cause to detain the arrestee on a qualifying
serious offense. If “all qualifying criminal charges are
determined to be unsupported by probable cause . . . the
DNA sample shall be immediately destroyed.”
§2–504(d)(2)(i). DNA samples are also destroyed if
“a criminal action begun against the individual
. . . does not result in a conviction,” “the
conviction is finally reversed or vacated and no new trial is
permitted,” or “the individual is granted an
unconditional pardon.” §2–511(a)(1).
The Act also limits the information added to a
DNA database and how it may be used. Specifically, “[o]nly
DNA records that directly relate to the identification of
individuals shall be collected and stored.”
§2–505(b)(1). No purpose other than identification is
permissible: “A person may not willfully test a DNA sample
for information that does not relate to the identification of
indi-viduals as specified in this subtitle.”
§2–512(c). Tests for familial matches are also
prohibited. See §2–506(d) (“A person may not
perform a search of the statewide DNA data base for the purpose of
identification of an offender in connection with a crime for which
the offender may be a biological relative of the individual from
whom the DNA sample was acquired”). The officers involved in
taking and analyzing respondent’s DNA sample complied with
the Act in all respects.
Respondent’s DNA was collected in this
case using a common procedure known as a “buccal swab.”
“Buccal cell collection involves wiping a small piece of
filter paper or a cotton swab similar to a Q-tip against the inside
cheek of an individual’s mouth to collect some skin
cells.” Butler 86. The procedure is quick and painless. The
swab touches inside an arrestee’s mouth, but it requires no
“surgical intrusio[n] beneath the skin,”
Winston
v.
Lee,
470
U.S. 753, 760 (1985), and it poses no “threa[t] to the
health or safety” of arrestees,
id., at 763.
B
Respondent’s identification as the
rapist resulted in part through the operation of a national project
to standardize collection and storage of DNA profiles. Authorized
by Congress and supervised by the Federal Bureau of Investigation,
the Combined DNA Index System (CODIS) connects DNA laboratories at
the local, state, and national level. Since its authorization in
1994, the CODIS system has grown to include all 50 States and a
number of federal agencies. CODIS collects DNA profiles provided by
local laboratories taken from arrestees, convicted offenders, and
forensic evidence found at crime scenes. To participate in CODIS, a
local laboratory must sign a memorandum of understanding agreeing
to adhere to quality standards and submit to audits to evaluate
compliance with the federal standards for scientifically rigorous
DNA testing. Butler 270.
One of the most significant aspects of CODIS is
the standardization of the points of comparison in DNA analysis.
The CODIS database is based on 13 loci at which the STR alleles are
noted and compared. These loci make possible extreme accuracy in
matching individual samples, with a “random match probability
of approximately 1 in 100 trillion (assuming unrelated
individuals).”
Ibid. The CODIS loci are from the
non-protein coding junk regions of DNA, and “are not known to
have any association with a genetic disease or any other genetic
predisposition. Thus, the information in the database is only
useful for human identity testing.”
Id., at 279. STR
information is recorded only as a “string of numbers”;
and the DNA identification is accompanied only by information
denoting the laboratory and the analyst responsible for the
submission.
Id., at 270. In short, CODIS sets uniform
national standards for DNA matching and then facilitates
connections between local law enforcement agencies who can share
more specific information about matched STR profiles.
All 50 States require the collection of DNA from
felony convicts, and respondent does not dispute the validity of
that practice. See Brief for Respondent 48. Twenty-eight States and
the Federal Government have adopted laws similar to the Maryland
Act authorizing the collection of DNA from some or all arrestees.
See Brief for State of California et al. as
Amici
Curiae 4, n. 1 (States Brief) (collecting state statutes).
Although those statutes vary in their particulars, such as what
charges require a DNA sample, their similarity means that this case
implicates more than the specific Maryland law. At issue is a
standard, expanding technology already in widespread use throughout
the Nation.
III
A
Although the DNA swab procedure used here
presents a question the Court has not yet addressed, the framework
for deciding the issue is well established. The Fourth Amendment,
binding on the States by the Fourteenth Amendment, provides that
“[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated.” It can be agreed that using
a buccal swab on the inner tissues of a person’s cheek in
order to obtain DNA samples is a search. Virtually any
“intrusio[n] into the human body,”
Schmerber v.
California,
384 U.S.
757, 770 (1966), will work an invasion of
“ ‘cherished personal security’ that is
subject to constitutional scrutiny,”
Cupp v.
Murphy,
412 U.S.
291, 295 (1973) (quoting
Terry v.
Ohio,
392 U.S.
1, 24–25 (1968)). The Court has applied the Fourth
Amendment to police efforts to draw blood, see
Schmerber,
supra;
Missouri v.
McNeely, 569 U. S. ___
(2013), scraping an arrestee’s fingernails to obtain trace
evidence, see
Cupp,
supra, and even to “a
breathalyzer test, which generally requires the production of
alveolar or ‘deep lung’ breath for chemical
analysis,”
Skinner v.
Railway Labor
Executives’ Assn.,
489 U.S.
602, 616 (1989).
A buccal swab is a far more gentle process than
a venipuncture to draw blood. It involves but a light touch on the
inside of the cheek; and although it can be deemed a search within
the body of the arrestee, it requires no “surgical intrusions
beneath the skin.”
Winston, 470 U. S., at 760.
The fact than an intrusion is negligible is of central relevance to
determining reasonableness, although it is still a search as the
law defines that term.
B
To say that the Fourth Amendment applies here
is the beginning point, not the end of the analysis. “[T]he
Fourth Amendment’s proper function is to constrain, not
against all intrusions as such, but against intrusions which are
not justified in the circumstances, or which are made in an
improper manner.”
Schmerber,
supra, at 768.
“As the text of the Fourth Amendment indicates, the ultimate
measure of the constitutionality of a governmental search is
‘reasonableness.’ ”
Vernonia School Dist.
47J v.
Acton,
515 U.S.
646, 652 (1995). In giving content to the inquiry whether an
intrusion is reasonable, the Court has preferred “some
quantum of individualized suspicion . . . [as] a
prerequisite to a constitutional search or seizure. But the Fourth
Amendment imposes no irreducible requirement of such
suspicion.”
United States v.
Martinez-Fuerte,
428 U.S.
543, 560–561 (1976) (citation and footnote omitted).
In some circumstances, such as “[w]hen
faced with special law enforcement needs, diminished expectations
of privacy, minimal intrusions, or the like, the Court has found
that certain general, or individual, circumstances may render a
warrantless search or seizure reasonable.”
Illinois v.
McArthur,
531 U.S.
326, 330 (2001). Those circumstances diminish the need for a
warrant, either because “the public interest is such that
neither a warrant nor probable cause is required,”
Maryland v.
Buie,
494 U.S.
325, 331 (1990), or because an individual is already on notice,
for instance because of his employment, see
Skinner,
supra, or the conditions of his release from government
custody, see
Samson v.
California,
547 U.S.
843 (2006), that some reasonable police intrusion on his
pri-vacy is to be expected. The need for a warrant is perhaps least
when the search involves no discretion that could properly be
limited by the “interpo[lation of] a neutral magistrate
between the citizen and the law enforcement officer.”
Treasury Employees v.
Von Raab,
489 U.S.
656, 667 (1989).
The instant case can be addressed with this
background. The Maryland DNA Collection Act provides that, in order
to obtain a DNA sample, all arrestees charged with serious crimes
must furnish the sample on a buccal swab applied, as noted, to the
inside of the cheeks. The arrestee is already in valid police
custody for a serious offense supported by probable cause. The DNA
collection is not subject to the judgment of officers whose
perspective might be “colored by their primary involvement in
‘the often competitive enterprise of ferreting out
crime.’ ”
Terry,
supra, at 12
(quoting
Johnson v.
United States,
333 U.S.
10, 14 (1948)). As noted by this Court in a different but still
instructive context involving blood testing, “[b]oth the
circumstances justifying toxicological testing and the permissible
limits of such intrusions are defined nar- rowly and specifically
in the regulations that authorize them . . . .
Indeed, in light of the standardized nature of the tests and the
minimal discretion vested in those charged with administering the
program, there are virtually no facts for a neutral magistrate to
evaluate.”
Skinner,
supra, at 622. Here, the
search effected by the buccal swab of respondent falls within the
category of cases this Court has analyzed by reference to the
proposition that the “touchstone of the Fourth Amendment is
reasonableness, not individualized suspicion.”
Samson,
supra, at 855, n. 4.
Even if a warrant is not required, a search is
not beyond Fourth Amendment scrutiny; for it must be reasonable in
its scope and manner of execution. Urgent government interests are
not a license for indiscriminate police behavior. To say that no
warrant is required is merely to acknowledge that “rather
than employing a
per se rule of unreasonableness, we balance
the privacy-related and law enforcement-related concerns to
determine if the intrusion was reasonable.”
McArthur,
supra, at 331. This application of “traditional
standards of reasonableness” requires a court to weigh
“the promotion of legitimate governmen- tal interests”
against “the degree to which [the search] intrudes upon an
individual’s privacy.”
Wyoming v.
Houghton,
526 U.S.
295, 300 (1999). An assessment of reasonableness to determine
the lawfulness of requiring this class of arrestees to provide a
DNA sample is central to the instant case.
IV
A
The legitimate government interest served by
the Maryland DNA Collection Act is one that is well established:
the need for law enforcement officers in a safe and accurate way to
process and identify the persons and possessions they must take
into custody. It is beyond dispute that “probable cause
provides legal justification for arresting a person suspected of
crime, and for a brief period of detention to take the
administrative steps incident to arrest.”
Gerstein v.
Pugh,
420 U.S.
103, 113–114 (1975). Also uncontested is the “right
on the part of the Government, always recognized under English and
American law, to search the person of the accused when legally
arrested.”
Weeks v.
United States,
232 U.S.
383, 392 (1914), overruled on other grounds,
Mapp v.
Ohio,
367 U.S.
643 (1961). “The validity of the search of a person
incident to a lawful arrest has been regarded as settled from its
first enunciation, and has remained virtually unchallenged.”
United States v.
Robinson,
414
U.S. 218, 224 (1973). Even in that context, the Court has been
clear that individual suspicion is not necessary, because
“[t]he constitutionality of a search incident to an arrest
does not depend on whether there is any indication that the person
ar-rested possesses weapons or evidence. The fact of a lawful
arrest, standing alone, authorizes a search.”
Michigan
v.
DeFillippo,
443 U.S.
31, 35 (1979).
The “routine administrative procedure[s]
at a police sta-tion house incident to booking and jailing the
suspect” derive from different origins and have different
constitutional justifications than, say, the search of a place,
Illinois v.
Lafayette,
462 U.S.
640, 643 (1983); for the search of a place not incident to an
arrest depends on the “fair probability that contraband or
evidence of a crime will be found in a particular place,”
Illinois v.
Gates,
462 U.S.
213, 238 (1983). The interests are further different when an
individual is formally processed into police custody. Then
“the law is in the act of subjecting the body of the accused
to its physical dominion.”
People v.
Chiagles,
237 N.Y. 193, 197, 142 N.E. 583, 584 (1923) (Cardozo, J.). When
probable cause exists to remove an individual from the normal
channels of society and hold him in legal custody, DNA
identification plays a critical role in serving those
interests.
First, “[i]n every criminal case, it is
known and must be known who has been arrested and who is being
tried.”
Hiibel v.
Sixth Judicial Dist. Court of
Nev., Humboldt Cty.,
542 U.S.
177, 191 (2004). An individual’s identity is more than
just his name or Social Security number, and the government’s
interest in identification goes beyond ensuring that the proper
name is typed on the indictment. Identity has never been considered
limited to the name on the arrestee’s birth certificate. In
fact, a name is of little value compared to the real interest in
identification at stake when an individual is brought into custody.
“It is a well recognized aspect of criminal conduct that the
per-petrator will take unusual steps to conceal not only his
conduct, but also his identity. Disguises used while committing a
crime may be supplemented or replaced by changed names, and even
changed physical features.”
Jones v.
Murray,
962 F.2d 302, 307 (CA4 1992). An “arrestee may be carrying a
false ID or lie about his identity,” and “criminal
history records . . . can be inaccurate or
incomplete.”
Florence v.
Board of Chosen
Freeholders of County of Burlington, 566 U. S. ___, ___
(2012) (slip op., at 16).
A suspect’s criminal history is a critical
part of his identity that officers should know when processing him
for detention. It is a common occurrence that “[p]eople
detained for minor offenses can turn out to be the most devious and
dangerous criminals. Hours after the Oklahoma City bombing, Timothy
McVeigh was stopped by a state trooper who noticed he was driving
without a license plate. Police stopped serial killer Joel Rifkin
for the same reason. One of the terrorists involved in the
September 11 attacks was stopped and ticketed for speeding just two
days before hijacking Flight 93.”
Id., at ___ (slip
op., at 14) (citations omitted). Police already seek this crucial
identifying information. They use routine and accepted means as
varied as comparing the suspect’s booking photograph to
sketch artists’ depictions of persons of interest, showing
his mugshot to potential witnesses, and of course making a
computerized comparison of the arrestee’s fingerprints
against electronic databases of known criminals and unsolved
crimes. In this respect the only difference between DNA analysis
and the accepted use of fingerprint databases is the unparalleled
accuracy DNA provides.
The task of identification necessarily entails
searching public and police records based on the identifying
information provided by the arrestee to see what is already known
about him. The DNA collected from arrestees is an irrefutable
identification of the person from whom it was taken. Like a
fingerprint, the 13 CODIS loci are not themselves evidence of any
particular crime, in the way that a drug test can by itself be
evidence of illegal narcotics use. A DNA profile is useful to the
police because it gives them a form of identification to search the
records already in their valid possession. In this respect the use
of DNA for identification is no different than matching an
arrestee’s face to a wanted poster of a previously
unidentified suspect; or matching tattoos to known gang symbols to
reveal a criminal affiliation; or matching the arrestee’s
fingerprints to those recovered from a crime scene. See Tr. of Oral
Arg. 19. DNA is another metric of identification used to connect
the arrestee with his or her public persona, as reflected in
records of his or her actions that are available to the police.
Those records may be linked to the arrestee by a variety of
relevant forms of identification, including name, alias, date and
time of previous convictions and the name then used, photograph,
Social Security number, or CODIS profile. These data, found in
official records, are checked as a routine matter to produce a more
comprehensive record of the suspect’s complete identity.
Finding occurrences of the arrestee’s CODIS profile in
outstanding cases is consistent with this common practice. It uses
a different form of identification than a name or fingerprint, but
its function is the same.
Second, law enforcement officers bear a
responsibility for ensuring that the custody of an arrestee does
not create inordinate “risks for facility staff, for the
existing detainee population, and for a new detainee.”
Florence,
supra, at ___ (slip op., at 10). DNA
identification can provide untainted information to those charged
with de-taining suspects and detaining the property of any felon.
For these purposes officers must know the type of person whom they
are detaining, and DNA allows them to make critical choices about
how to proceed.
“Knowledge of identity may inform an
officer that a suspect is wanted for another offense, or has a
record of violence or mental disorder. On the other hand, knowing
identity may help clear a suspect and al- low the police to
concentrate their efforts elsewhere. Identity may prove
particularly important in [certain cases, such as] where the police
are investigating what appears to be a domestic assault. Officers
called to investigate domestic disputes need to know whom they are
dealing with in order to assess the situation, the threat to their
own safety, and possible danger to the potential victim.”
Hiibel,
supra, at 186.
Recognizing that a name alone cannot address
this interest in identity, the Court has approved, for example,
“a visual inspection for certain tattoos and other signs of
gang affiliation as part of the intake process,” because
“[t]he identification and isolation of gang members before
they are admitted protects everyone.”
Florence,
supra, at ___ (slip op., at 11).
Third, looking forward to future stages of
criminal prosecution, “the Government has a substantial
interest in ensuring that persons accused of crimes are available
for trials.”
Bell v.
Wolfish,
441 U.S.
520, 534 (1979). A person who is arrested for one offense but
knows that he has yet to answer for some past crime may be more
inclined to flee the instant charges, lest continued contact with
the criminal justice system expose one or more other serious
offenses. For example, a defendant who had committed a prior sexual
assault might be inclined to flee on a burglary charge, knowing
that in every State a DNA sample would be taken from him after his
conviction on the burglary charge that would tie him to the more
serious charge of rape. In addition to subverting the
administration of justice with respect to the crime of arrest, this
ties back to the interest in safety; for a detainee who absconds
from custody presents a risk to law enforcement officers, other
detainees, victims of previous crimes, witnesses, and society at
large.
Fourth, an arrestee’s past conduct is
essential to an assessment of the danger he poses to the public,
and this will inform a court’s determination whether the
individual should be released on bail. “The
government’s interest in preventing crime by arrestees is
both legitimate and compelling.”
United States v.
Salerno,
481 U.S.
739, 749 (1987). DNA identification of a suspect in a violent
crime provides critical information to the police and judicial
officials in making a determination of the arrestee’s future
dangerousness. This inquiry always has entailed some scrutiny
beyond the name on the defendant’s driver’s license.
For example, Maryland law requires a judge to take into account not
only “the nature and circumstances of the offense
charged” but also “the defendant’s family ties,
employment status and history, financial resources, reputation,
character and mental condition, length of res-idence in the
community.” 1 Md. Rules 4–216(f)(1)(A), (C) (2013).
Knowing that the defendant is wanted for a previous violent crime
based on DNA identification is especially probative of the
court’s consideration of “the danger of the defendant
to the alleged victim, another person, or the community.”
Rule 4–216(f)(1)(G); see also 18 U. S. C.
§3142 (2006 ed. and Supp. V) (similar requirements).
This interest is not speculative. In considering
laws to require collecting DNA from arrestees, government agencies
around the Nation found evidence of numerous cases in which felony
arrestees would have been identified as violent through DNA
identification matching them to previous crimes but who later
committed additional crimes because such identification was not
used to detain them. See Denver’s Study on Preventable Crimes
(2009) (three examples), online at http://www.denverda.org/DNA_
Documents/Denver%27s%20Preventable%20Crimes%20 Study.pdf (all
Internet materials as visited May 31, 2013, and available in Clerk
of Court’s case file); Chi-cago’s Study on Preventable
Crimes (2005) (five exam- ples), online at
http://www.denverda.org/DNA_Documents/
Arrestee_Database/Chicago%20Preventable%20Crimes- Final.pdf;
Maryland Study on Preventable Crimes (2008) (three examples),
online at http://www.denverda.org/DNA_
Documents/MarylandDNAarresteestudy.pdf.
Present capabilities make it possible to
complete a DNA identification that provides information essential
to determining whether a detained suspect can be released pending
trial. See,
e.g., States Brief 18, n. 10 (“DNA
identification database samples have been processed in as few as
two days in California, although around 30 days has been
average”). Regardless of when the initial bail decision is
made, release is not appropriate until a further determination is
made as to the person’s identity in the sense not only of
what his birth certificate states but also what other records and
data disclose to give that identity more meaning in the whole
context of who the person really is. And even when release is
permitted, the background identity of the suspect is necessary for
determining what conditions must be met before release is allowed.
If release is authorized, it may take time for the conditions to be
met, and so the time before actual release can be substantial. For
example, in the federal system, defendants released conditionally
are detained on average for 112 days; those released on unsecured
bond for 37 days; on personal recognizance for 36 days; and on
other financial conditions for 27 days. See Dept. of Justice,
Bureau of Justice Statistics, Compendium of Federal Justice
Statistics 45 (NCJ–213476, Dec. 2006) online at
http://bjs.gov/ content/pub/pdf/cfjs04.pdf. During this entire
period, ad-ditional and supplemental data establishing more about
the person’s identity and background can provide critical
information relevant to the conditions of release and whether to
revisit an initial release determination. The facts of this case
are illustrative. Though the record is not clear, if some thought
were being given to releasing the respondent on bail on the gun
charge, a release that would take weeks or months in any event,
when the DNA report linked him to the prior rape, it would be
relevant to the conditions of his release. The same would be true
with a supplemental fingerprint report.
Even if an arrestee is released on bail,
development of DNA identification revealing the defendant’s
unknown violent past can and should lead to the revocation of his
conditional release. See 18 U. S. C. §3145(a)
(providing for revocation of release); see also States Brief
11–12 (discussing examples where bail and diversion
determinations were reversed after DNA identified the
arrestee’s vio- lent history). Pretrial release of a person
charged with a dangerous crime is a most serious responsibility. It
is reason-able in all respects for the State to use an accepted
database to determine if an arrestee is the object of suspicion in
other serious crimes, suspicion that may provide a strong incentive
for the arrestee to escape and flee.
Finally, in the interests of justice, the
identification of an arrestee as the perpetrator of some heinous
crime may have the salutary effect of freeing a person wrongfully
imprisoned for the same offense. “[P]rompt [DNA] testing
. . . would speed up apprehension of criminals before
they commit additional crimes, and prevent the grotesque detention
of . . . innocent people.” J. Dwyer, P. Neufeld,
& B. Scheck, Actual Innocence 245 (2000).
Because proper processing of arrestees is so
important and has consequences for every stage of the criminal
process, the Court has recognized that the “governmen- tal
interests underlying a station-house search of the
ar-restee’s person and possessions may in some circumstances
be even greater than those supporting a search imme-diately
following arrest.”
Lafayette, 462 U. S., at 645.
Thus, the Court has been reluctant to circumscribe the authority of
the police to conduct reasonable booking searches. For example,
“[t]he standards traditionally governing a search incident to
lawful arrest are not . . . commuted to the stricter
Terry standards.”
Robinson, 414 U. S., at
234. Nor are these interests in identifica- tion served only by a
search of the arrestee himself. “[I]nspection of an
arrestee’s personal property may assist the police in
ascertaining or verifying his identity.”
Lafayette,
supra, at 646. And though the Fifth Amendment’s
protection against self-incrimination is not, as a general rule,
governed by a reasonableness standard, the Court has held that
“questions . . . reasonably related to the
police’s administrative concerns . . . fall outside
the protections of
Miranda [v.
Arizona,
384 U.S.
436 (1966)] and the answers thereto need not be
suppressed.”
Pennsylvania v.
Muniz,
496 U.S.
582, 601–602 (1990).
B
DNA identification represents an important
advance in the techniques used by law enforcement to serve
le-gitimate police concerns for as long as there have been arrests,
concerns the courts have acknowledged and approved for more than a
century. Law enforcement agencies routinely have used scientific
advancements in their standard procedures for the identification of
arrestees. “Police had been using photography to capture the
faces of criminals almost since its invention.” S. Cole,
Suspect Identities 20 (2001). Courts did not dispute that practice,
concluding that a “sheriff in making an arrest for a felony
on a warrant has the right to exercise a discretion . . .
, [if] he should deem it necessary to the safe-keeping of a
prisoner, and to prevent his escape, or to enable him the more
readily to retake the prisoner if he should escape, to take his
photograph.”
State ex rel. Bruns v.
Clausmier, 154 Ind. 599, 601, 603, 57 N.E. 541, 542 (1900).
By the time that it had become “the daily practice of the
police officers and detectives of crime to use photographic
pictures for the discovery and identification of criminals,”
the courts likewise had come to the conclusion that “it would
be [a] matter of regret to have its use unduly restricted upon any
fanciful theory or constitutional privilege.”
Shaffer
v.
United States, 24 App. D. C. 417, 426 (1904).
Beginning in 1887, some police adopted more
exacting means to identify arrestees, using the system of precise
physical measurements pioneered by the French anthropologist
Alphonse Bertillon. Bertillon identification consisted of 10
measurements of the arrestee’s body, along with a
“scientific analysis of the features of the face and an exact
anatomical localization of the various scars, marks, &c., of
the body.” Defense of the Bertillon System, N. Y. Times,
Jan. 20, 1896, p. 3. “[W]hen a prisoner was brought in, his
photograph was taken according to the Bertillon system, and his
body measurements were then made. The measurements were made
. . . and noted down on the back of a card or a blotter,
and the photograph of the prisoner was expected to be placed on the
card. This card, therefore, furnished both the likeness and
description of the prisoner, and was placed in the rogues’
gallery, and copies were sent to various cities where similar
records were kept.”
People ex rel. Jones v.
Diehl, 53 App. Div. 645, 646, 65 N.Y.S. 801, 802 (1900). As
in the present case, the point of taking this information about
each arrestee was not limited to verifying that the proper name was
on the indictment. These procedures were used to “facilitate
the recapture of escaped prisoners,” to aid “the
investigation of their past records and personal history,”
and “to preserve the means of identification for
. . . fu- ture supervision after discharge.”
Hodgeman v.
Olsen, 86 Wash. 615, 619, 150 P. 1122,
1124 (1915); see also
McGovern v.
Van Riper, 137
N. J. Eq. 24, 33–34, 43 A.2d 514, 519 (Ch. 1945)
(“[C]riminal identification is said to have two main
purposes: (1) The identification of the accused as the person who
committed the crime for which he is being held; and, (2) the
identification of the accused as the same person who has been
previously charged with, or convicted of, other offenses against
the criminal law”).
Perhaps the most direct historical analogue to
the DNA technology used to identify respondent is the familiar
practice of fingerprinting arrestees. From the advent of this
technique, courts had no trouble determining that fingerprinting
was a natural part of “the administrative steps incident to
arrest.”
County of Riverside v.
McLaughlin,
500 U.S.
44, 58 (1991). In the seminal case of
United States v.
Kelly, 55 F.2d 67 (CA2 1932), Judge Augustus Hand wrote that
routine fingerprinting did not violate the Fourth Amendment
precisely because it fit within the accepted means of processing an
arrestee into custody:
“Finger printing seems to be no more
than an exten-sion of methods of identification long used in
dealing with persons under arrest for real or supposed vio-lations
of the criminal laws. It is known to be a very certain means
devised by modern science to reach the desired end, and has become
especially important in a time when increased population and vast
aggregations of people in urban centers have rendered the notoriety
of the individual in the community no longer a ready means of
identification.
. . . . .
“We find no ground in reason or
authority for interfering with a method of identifying persons
charged with crime which has now become widely known and frequently
practiced.”
Id., at 69–70.
By the middle of the 20th century, it was
considered “elementary that a person in lawful custody may be
required to submit to photographing and fingerprinting as part of
routine identification processes.”
Smith v.
United
States, 324 F.2d 879, 882 (CADC 1963) (Burger, J.) (citations
omitted).
DNA identification is an advanced technique
superior to fingerprinting in many ways, so much so that to insist
on fingerprints as the norm would make little sense to either the
forensic expert or a layperson. The additional intrusion upon the
arrestee’s privacy beyond that associated with fingerprinting
is not significant, see Part V,
infra, and DNA is a markedly
more accurate form of identifying arrestees. A suspect who has
changed his facial features to evade photographic identification or
even one who has undertaken the more arduous task of altering his
fingerprints cannot escape the revealing power of his DNA.
The respondent’s primary objection to this
analogy is that DNA identification is not as fast as
fingerprinting, and so it should not be considered to be the
21st-century equivalent. See Tr. of Oral Arg. 53. But rapid
analysis of fingerprints is itself of recent vintage. The
FBI’s vaunted Integrated Automated Fingerprint Identification
System (IAFIS) was only “launched on July 28, 1999. Prior to
this time, the processing of . . . fingerprint
submissions was largely a manual, labor-intensive process, taking
weeks or months to process a single submission.” Federal
Bureau of Investigation, Integrated Automated Fingerprint
Identification System, online at http://www.fbi.gov/about-us/cjis/
fingerprints_biometrics/iafis/iafis. It was not the advent of this
technology that rendered fingerprint analysis constitutional in a
single moment. The question of how long it takes to process
identifying information obtained from a valid search goes only to
the efficacy of the search for its purpose of prompt
identification, not the constitutionality of the search. Cf.
Ontario v.
Quon, 560 U. S. ___, ___ (2010) (slip
op., at 15). Given the importance of DNA in the identification of
police records pertaining to arrestees and the need to refine and
confirm that identity for its important bearing on the decision to
continue release on bail or to impose of new conditions, DNA serves
an essential purpose despite the existence of delays such as the
one that occurred in this case. Even so, the delay in processing
DNA from arrestees is being reduced to a substantial degree by
rapid technical advances. See,
e.g., At-torney General
DeWine Announces Significant Drop in DNA Turnaround Time (Jan. 4,
2013) (DNA processing time reduced from 125 days in 2010 to 20 days
in 2012), online at
http://ohioattorneygeneral.gov/Media/News-Releases/January-
2013/Attorney-General-DeWine-Announces-Significant- Drop; Gov.
Jindal Announces Elimination of DNA Backlog, DNA Unit Now Operating
in Real Time (Nov. 17, 2011) (average DNA report time reduced from
a year or more in 2009 to 20 days in 2011), online at http://
www.gov.state.la.us/index.cfm?md=newsroom&tmp=detail&articleID=3102.
And the FBI has already begun testing devices that will enable
police to process the DNA of arrestees within 90 minutes. See Brief
for National District Attorneys Association as
Amicus Curiae
20–21; Tr. of Oral Arg. 17. An assessment and understanding
of the reasonableness of this minimally invasive search of a person
detained for a serious crime should take account of these technical
advances. Just as fingerprinting was constitutional for generations
prior to the introduction of IAFIS, DNA identification of arrestees
is a permissible tool of law enforcement today. New technology will
only further improve its speed and therefore its effectiveness.
And, as noted above, actual release of a serious offender as a
routine matter takes weeks or months in any event. By identifying
not only who the arrestee is but also what other available records
disclose about his past to show who he is, the police can ensure
that they have the proper person under arrest and that they have
made the necessary arrangements for his custody; and, just as
important, they can also prevent suspicion against or prosecution
of the innocent.
In sum, there can be little reason to question
“the legitimate interest of the government in knowing for an
absolute certainty the identity of the person arrested, in knowing
whether he is wanted elsewhere, and in ensuring his identification
in the event he flees prosecution.” 3 W. LaFave, Search and
Seizure §5.3(c), p. 216 (5th ed. 2012). To that end, courts
have confirmed that the Fourth Amendment allows police to take
certain routine “administrative steps incident to
arrest—
i.e., . . . book[ing],
photograph[ing], and fingerprint[ing].”
McLaughlin,
500 U. S.
, at 58. DNA identification of arrestees, of
the type approved by the Maryland statute here at issue, is
“no more than an extension of methods of identification long
used in dealing with persons under arrest.”
Kelly, 55
F.
2d, at 69. In the balance of reasonableness
required by the Fourth Amendment, therefore, the Court must give
great weight both to the significant government interest at stake
in the identification of arrestees and to the unmatched potential
of DNA identification to serve that interest.
V
A
By comparison to this substantial government
interest and the unique effectiveness of DNA identification, the
intrusion of a cheek swab to obtain a DNA sample is a minimal one.
True, a significant government interest does not alone suffice to
justify a search. The government interest must outweigh the degree
to which the search in-vades an individual’s legitimate
expectations of privacy. In considering those expectations in this
case, however, the necessary predicate of a valid arrest for a
serious offense is fundamental. “Although the underlying
command of the Fourth Amendment is always that searches and
seizures be reasonable, what is reasonable depends on the context
within which a search takes place.”
New Jersey v.
T. L. O.,
469 U.S.
325, 337 (1985). “[T]he legitimacy of certain privacy
expectations vis-à-vis the State may depend upon the
individual’s legal relationship with the State.”
Vernonia School Dist. 47J, 515 U. S., at 654.
The reasonableness of any search must be
considered in the context of the person’s legitimate
expectations of privacy. For example, when weighing the
invasiveness of urinalysis of high school athletes, the Court noted
that “[l]egitimate privacy expectations are even less with
regard to student athletes. . . . Public school locker
rooms, the usual sites for these activities, are not notable for
the privacy they afford.”
Id., at 657. Likewise, the
Court has used a context-specific benchmark inapplicable to the
public at large when “the expectations of privacy of covered
employees are diminished by reason of their participa-tion in an
industry that is regulated pervasively,”
Skinner, 489
U. S., at 627, or when “the ‘operational realities
of the workplace’ may render entirely reasonable certain
work-related intrusions by supervisors and co-workers that might be
viewed as unreasonable in other contexts,”
Von Raab,
489 U. S., at 671.
The expectations of privacy of an individual
taken into police custody “necessarily [are] of a diminished
scope.”
Bell, 441 U. S., at 557. “[B]oth
the person and the property in his immediate possession may be
searched at the station house.”
United States v.
Edwards,
415 U.S.
800, 803 (1974). A search of the detainee’s person when
he is booked into custody may “ ‘involve a
relatively extensive exploration,’ ”
Robinson, 414 U. S., at 227, including
“requir[ing] at least some detainees to lift their genitals
or cough in a squatting position,”
Florence, 566
U. S., at ___ (slip op., at 13).
In this critical respect, the search here at
issue differs from the sort of programmatic searches of either the
public at large or a particular class of regulated but otherwise
law-abiding citizens that the Court has previously labeled as
“ ‘special needs’ ” searches.
Chandler v.
Miller,
520 U.S.
305, 314 (1997). When the police stop a motorist at a
checkpoint, see
Indianapolis v.
Edmond,
531 U.S.
32 (2000), or test a political candidate for illegal narcotics,
see
Chandler, supra, they intrude upon substantial
expectations of privacy. So the Court has insisted on some purpose
other than “to detect evidence of ordinary criminal
wrongdoing” to justify these searches in the absence of
individualized suspicion.
Edmond,
supra, at 38. Once
an individual has been arrested on probable cause for a dangerous
offense that may require detention before trial, however, his or
her expectations of privacy and freedom from police scrutiny are
reduced. DNA identification like that at issue here thus does not
require consideration of any unique needs that would be required to
justify searching the average citizen. The special needs cases,
though in full accord with the result reached here, do not have a
direct bearing on the issues presented in this case, because unlike
the search of a citizen who has not been suspected of a wrong, a
detainee has a reduced expectation of privacy.
The reasonableness inquiry here considers two
other circumstances in which the Court has held that particularized
suspicion is not categorically required: “diminished
expectations of privacy [and] minimal intrusions.”
McArthur, 531 U. S., at 330. This is not to suggest
that any search is acceptable solely because a person is in
custody. Some searches, such as invasive surgery, see
Winston,
470 U.S.
753, or a search of the arrestee’s home, see
Chimel v.
California,
395 U.S.
752 (1969), involve either greater intrusions or higher
expectations of privacy than are present in this case. In those
situations, when the Court must “balance the privacy-related
and law enforcement-related concerns to determine if the intrusion
was rea-sonable,”
McArthur,
supra, at 331, the
privacy-related concerns are weighty enough that the search may
require a warrant, notwithstanding the diminished expectations of
privacy of the arrestee.
Here, by contrast to the approved standard
procedures incident to any arrest detailed above, a buccal swab
involves an even more brief and still minimal intrusion. A gentle
rub along the inside of the cheek does not break the skin, and it
“involves virtually no risk, trauma, or pain.”
Schmerber, 384 U. S., at 771. “A crucial factor
in analyzing the magnitude of the intrusion . . . is the
extent to which the procedure may threaten the safety or health of
the individual,”
Winston,
supra, at 761, and
nothing suggests that a buccal swab poses any physical danger
whatsoever. A brief intrusion of an arrestee’s person is
subject to the Fourth Amendment, but a swab of this nature does not
increase the indignity already attendant to normal incidents of
arrest.
B
In addition the processing of
respondent’s DNA sam-ple’s 13 CODIS loci did not
intrude on respondent’s privacy in a way that would make his
DNA identification unconstitutional.
First, as already noted, the CODIS loci come
from noncoding parts of the DNA that do not reveal the genetic
traits of the arrestee. While science can always progress further,
and those progressions may have Fourth Amendment consequences,
alleles at the CODIS loci “are not at present revealing
information beyond identification.” Katsanis & Wagner,
Characterization of the Standard and Recommended CODIS
Markers
, 58 J. Forensic Sci. S169, S171 (2013). The argument
that the testing at issue in this case reveals any private medical
information at all is open to dispute.
And even if non-coding alleles could provide
some information, they are not in fact tested for that end. It is
undisputed that law enforcement officers analyze DNA for the sole
purpose of generating a unique identifying number against which
future samples may be matched. This parallels a similar safeguard
based on actual practice in the school drug-testing context, where
the Court deemed it “significant that the tests at issue here
look only for drugs, and not for whether the student is, for
example, epileptic, pregnant, or diabetic.”
Vernonia
School Dist. 47J, 515 U. S., at 658. If in the future
police analyze samples to determine, for instance, an
arrestee’s predisposition for a particular disease or other
hereditary factors not relevant to identity, that case would
present additional privacy concerns not present here.
Finally, the Act provides statutory protections
that guard against further invasion of privacy. As noted above, the
Act requires that “[o]nly DNA records that directly relate to
the identification of individuals shall be collected and
stored.” Md. Pub. Saf. Code Ann
.
§2–505(b)(1). No purpose other than identification is
permissible: “A person may not willfully test a DNA sample
for information that does not relate to the identification of
individuals as specified in this subtitle.”
§2–512(c). This Court has noted often that “a
‘statutory or regulatory duty to avoid unwarranted
disclosures’ generally allays . . . privacy
concerns.”
NASA v.
Nelson, 562 U. S. ___,
___ (2011) (slip op., at 20) (quoting
Whalen v.
Roe,
429 U.S.
589, 605 (1977)). The Court need not speculate about the risks
posed “by a system that did not contain comparable security
provisions.”
Id., at 606. In light of the scientific
and statutory safeguards, once respondent’s DNA was lawfully
collected the STR analysis of respondent’s DNA pursuant to
CODIS procedures did not amount to a significant invasion of
privacy that would render the DNA identification impermissible
under the Fourth Amendment.
* * *
In light of the context of a valid arrest
supported by probable cause respondent’s expectations of
privacy were not offended by the minor intrusion of a brief swab of
his cheeks. By contrast, that same context of arrest gives rise to
significant state interests in identifying respondent not only so
that the proper name can be attached to his charges but also so
that the criminal justice system can make informed decisions
concerning pretrial custody. Upon these considerations the Court
concludes that DNA identification of arrestees is a reasonable
search that can be considered part of a routine booking procedure.
When officers make an arrest supported by probable cause to hold
for a serious offense and they bring the suspect to the station to
be detained in custody, taking and analyzing a cheek swab of the
arrestee’s DNA is, like fingerprinting and photographing, a
legitimate police booking procedure that is reasonable under the
Fourth Amendment.
The judgment of the Court of Appeals of Maryland
is reversed.
It is so ordered.