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Supreme Court Upholds Warrantless DNA Collection

The United States Supreme Court today, in a sharply divided decision, said police can routinely take DNA samples from people they arrest (before any charges are filed, trial, or conviction). Fellow McGeorge School of Law graduate Justice Anthony Kennedy equated a DNA buccal (cheek) swab to other common jailhouse booking procedures.

“Taking and analyzing a cheek swab of the arrestee DNA is, like fingerprinting and photographing, a legitimate booking procedure that is reasonable under the Fourth Amendment,” Justice Kennedy wrote in the Court’s 5-4 majority opinion.

The four dissenting Justices, however, indicated this ruling was allowing a major change in future police powers. Justice Antonin Scalia read his dissenting opinion aloud in the courtroom warning, “Make no mistake about it: because of today’s decision your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason.”

The case the Supreme Court decided is Maryland v. King, 569 U.S. ____ (2013). In 1999 Alonzo King was arrested for assault. At that time when he was arrested a biological sample was taken from him under a Maryland law allowing DNA to be collected from those arrested for violent felonies and burglary. Four years later in 2003 Mr. King was convicted of rape (unrelated to the assault) and was given a life sentence. During his rape case Mr. King moved to suppress evidence against him – the DNA sample, – on the grounds it was taken in violation of the Fourth Amendment to the United States Constitution. A divided Maryland Court of Appeals agreed with King, saying suspects under arrest enjoy a higher level of privacy than a convicted felon. However, the high court today ruled in favor of the state holding the Maryland law allowing DNA collection upon arrest was not a Fourth Amendment violation.

You can read the entire Supreme Court decision by clicking here

In California, constitutional challenges to our own state’s DNA collection program are still pending in the California Supreme Court and the U.S. 9th Circuit Court of Appeals despite the recent Maryland v. King decision. California’s DNA arrest procedures, in effect since 2009, are different from Maryland’s and allow a DNA sample to be taken from anyone arrested for any felony offense. California law also makes it difficult for someone to remove their DNA profile from a criminal database if charges are dropped or if someone is acquitted. For that reason some say the California DNA program is overly broad and hope the appeals court will distinguish the California law and limit its application.

Experienced DNA Profile Expungement Attorney Can Help!

The Law Offices of Evan E. Zelig, P.C. has helped many clients successfully erase their DNA genetic profile from state and federal government DNA databases. Under California law, if you were arrested for a felony offense, your DNA biological sample was taken from you at the time of your arrest. Following the DNA collection your genetic profile was then entered in the CAL-DNA database where it will remain, indefinitely. However, if you were never charged with a felony offense or you were successful in the case and found not guilty, you may be entitled to have your DNA profile removed from the government databases forever.


Contact Sonoma County criminal defense attorney Evan E. Zelig today at (707) 636-3204 or toll free (888) ZELIG-LAW to start the expungement process today!