In a 5-4 opinion [pdf] authored by Justice Kennedy, the Supreme Court has upheld the constitutionality of Maryland’s DNA Collection Act. Under question is the provision which allows law enforcement to collect DNA samples from people who have been arrested, but not yet charged or convicted.
In the syllabus, Kennedy claims that the collection of DNA upon arrest serves a government interest that “is not outweighed by the respondent’s privacy interests.”
By comparison to the substantial government interest and the unique effectiveness of DNA identification, the intrusion of a cheek swab to obtain a DNA sample is minimal. Reasonableness must be considered in the context of an individual’s legitimate privacy expectations, which necessarily diminish when he is taken into police custody.
I’m sorry, but reasonableness has a higher burden of proof than that when it comes to enumerated civil liberties. He also claims the Act passes muster because the method of collection is minimally invasive, unlike surgery or drawing blood. Continued...