The U.S. Supreme Court has paved the way for DNA collection and analysis to become as routine a part of the jail booking process as fingerprinting and mug shots.

In 2009, Maryland police arrested Alonzo King for menacing people with a shotgun. As part of the booking procedure authorized by the Maryland DNA Collection Act (Act), Md. Pub. Saf. Ann. 2-504 et. seq., King's DNA was collected by rubbing a cotton swab (called a buccal swab) along the inside of his mouth.

Analysis of King's DNA matched a previously unknown DNA sample taken from the scene of an unsolved 2003 rape. King was subsequently convicted of that crime.

On appeal, Maryland's highest court, the Court of Appeals, overturned King's conviction, struck down part of the Act and held that King's "expectation of privacy is greater than the State's purported interest in using King's DNA to identify him." See: King v. State, 425 Md. 550, 42 A.3d 549 (Md. 2012). The state appealed.

On June 3, 2013, in a 5-4 decision that reversed the Maryland Court of Appeals, the Supreme Court held that "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."

To reach this finding, the Court first "agreed that using a buccal swab on the inner tissues of a person's cheek in order to obtain DNA samples is a search," and thus the Fourth Amendment was implicated.

Next, the Supreme Court examined whether the DNA collection was reasonable and served a legitimate governmental interest so that the Fourth Amendment's warrant requirement did not apply. The Court cited five reasons to justify the reasonableness of DNA collection and analysis.

First, law enforcement officials need to positively identify a person in custody; this need includes searching public and police records for information already on file about the arrestee. The Court found that using DNA collected from an arrestee was 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 fingerprints to those recovered from a crime scene."

Second, jail officials need to properly classify the arrestee to minimize the "risks for facility staff, for the existing detainee population, and for a new detainee."

Third, the buccal swab was reasonable to help ensure the accused's availability for trial, as "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."

Fourth, because "an arrestee's past conduct is essential to an assessment of the danger he poses to the public," proper identification would help the bail-hearing judge determine whether or not the person should be released on bail, or if he or she had already been released on bail, whether or not that bail should be rescinded or modified.

Fifth, using DNA to correctly identify arrestees may have the "salutary effect of freeing a person wrongfully imprisoned for the same offense."

The Supreme Court concluded, "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.'"

Finally, the Court attempted to dispel any privacy concerns regarding the collection and analysis of an arrestee's genetic information beyond identification.

Congress authorized the FBI to oversee the Combined DNA Index System (CODIS), which allows federal, state and local DNA laboratories to input and process DNA data in a manner similar to the FBI's Integrated Automated Fingerprint Identification System (IAFIS), which lets law enforcement agencies input and analyze fingerprint data.

The genetic information in the CODIS DNA database comes from the "non-protein coding junk regions of DNA," and thus "the information in the database is only useful for human identity testing." Therefore, the Supreme Court reasoned, the DNA sample taken from King "did not intrude on [his] privacy in a way that would make his DNA identification unconstitutional."

The Court noted that the CODIS DNA information is "not at present revealing information beyond identification," but if future DNA samples reveal other factors not relevant to identity, "that case would present additional privacy concerns not present here."

The dissent criticized Maryland's use of King's DNA for identification purposes as being contrary to the Act, the facts in the case and the Supreme Court's Fourth Amendment precedent.

According to the dissent, the Act only allows DNA testing for "identification" for two purposes: to identify human remains and missing persons. The Act does not mention identification of arrestees. Further, statements made by Maryland's governor and other state officials lauded the Act as a crime fighting tool – not one for establishing identity.

Addressing Maryland's use of King's DNA, the dissent recounted how King's identity was never in question at the time of his arrest or arraignment, and noted that his DNA was not processed until long after his arrest.

Using DNA to identify "what unsolved crimes he committed" was "indistinguishable from [] ordinary law enforcement aims." Therefore, since Maryland had collected and tested King's DNA "as part of an official investigation into a crime," the dissent argued the state had violated his Fourth Amendment rights. See: Maryland v. King, 133 S.Ct. 1958 (2013).

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