Court: Cops can swab for DNA

NBC's Pete Williams reports on the ruling and explains why the Supreme Court upheld this practice.

By Pete Williams and Erin McClam, NBC News

The Supreme Court on Monday upheld the police practice of taking DNA samples from people who have been arrested but not convicted of a crime, ruling that it amounts to the 21st century version of fingerprinting.

The ruling was 5-4. Justice Antonin Scalia, a conservative, joined three of the courts more liberal members Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan in dissenting.

The five justices in the majority ruled that DNA sampling, after an arrest for a serious offense and when officers bring the suspect to the station to be detained in custody, does not violate the Fourth Amendments prohibition of unreasonable searches.

Under those specifications, the court said, taking and analyzing a cheek swab of the arrestees DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.

Scalias siding with the liberals reflects his growing concern over the past five years about privacy, said Tom Goldstein, the publisher of SCOTUSblog, who teaches at Harvard Law School and is a Supreme Court analyst for NBC News.

Weve seen several decisions where he has joined more liberal justices to find greater privacy rights, he said in an interview. Its not a big surprise in recent years, but it is a surprise in the sense of his general conservatism.

While a cheek swab does constitute a search under the law, the court noted that it requires but a light touch and no surgical intrusion a critical point, the court said, in determining whether it was reasonable.

At an oral argument in February, Justice Samuel Alito called the question perhaps the most important criminal procedure case the court had taken up in decades. Twenty-eight states and the federal government take DNA swabs from people under arrest before they can be tried.

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Court: Cops can swab for DNA