Maryland v. King

(Slip Opinion) OCTOBER TERM, 2012 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

MARYLAND v. KING

CERTIORARI TO THE COURT OF APPEALS OF MARYLAND

No. 12–207. Argued February 26, 2013—Decided June 3, 2013

After his 2009 arrest on first- and second-degree assault charges, re-

spondent King was processed through a Wicomico County, Maryland,

facility, where booking personnel used a cheek swab to take a DNA

sample pursuant to the Maryland DNA Collection Act (Act). The

swab was matched to an unsolved 2003 rape, and King was charged

with that crime. He moved to suppress the DNA match, arguing that

the Act violated the Fourth Amendment, but the Circuit Court Judge

found the law constitutional. King was convicted of rape. The Mary-

land Court of Appeals set aside the conviction, finding unconstitu-

tional the portions of the Act authorizing DNA collection from felony

arrestees.

Held: When officers make an arrest supported by probable cause to hold

for a serious offense and bring the suspect to the station to be de-

tained in custody, taking and analyzing a cheek swab of the ar-

restee’s DNA is, like fingerprinting and photographing, a legitimate

police booking procedure that is reasonable under the Fourth

Amendment. Pp. 3–28.

(a) DNA testing may “significantly improve both the criminal jus-

tice system and police investigative practices,” District Attorney’s Of-

fice for Third Judicial Dist. v. Osborne, 557 U. S. 52, 55, by making it

“possible to determine whether a biological tissue matches a suspect

with near certainty,” id., at 62. Maryland’s Act authorizes law en-

forcement authorities to collect DNA samples from, as relevant here,

persons charged with violent crimes, including first-degree assault.

A sample may not be added to a database before an individual is ar-

raigned, and it must be destroyed if, e.g., he is not convicted. Only

identity information may be added to the database. Here, the officer

collected a DNA sample using the common “buccal swab” procedure,

which is quick and painless, requires no “surgical intrusio[n] beneath

2 MARYLAND v. KING

Syllabus

the skin,” Winston v. Lee, 470 U. S. 753, 760, and poses no threat to

the arrestee’s “health or safety,” id., at 763. Respondent’s identifica-

tion as the rapist resulted in part through the operation of the Com-

bined DNA Index System (CODIS), which connects DNA laboratories

at the local, state, and national level, and which standardizes the

points of comparison, i.e., loci, used in DNA analysis. Pp. 3–7.

(b) The framework for deciding the issue presented is well estab-

lished. Using a buccal swab inside a person’s cheek to obtain a DNA

sample is a search under the Fourth Amendment. And the fact that

the intrusion is negligible is of central relevance to determining

whether the search is reasonable, “the ultimate measure of the con-

stitutionality of a governmental search,” Vernonia School Dist. 47J v.

Acton, 515 U. S. 646, 652. Because the need for a warrant is greatly

diminished here, where the arrestee was already in valid police cus-

tody for a serious offense supported by probable cause, the search is

analyzed by reference to “reasonableness, not individualized suspi-

cion,” Samson v. California, 547 U. S. 843, 855, n. 4, and reasonable-

ness is determined by weighing “the promotion of legitimate govern-

mental interests” against “the degree to which [the search] intrudes

upon an individual’s privacy,” Wyoming v. Houghton, 526 U. S. 295,

300. Pp. 7–10.

(c) In this balance of reasonableness, great weight is given to both

the significant government interest at stake in the identification of

arrestees and DNA identification’s unmatched potential to serve that

interest. Pp. 10–23.

(1) The Act serves a well-established, legitimate government in-

terest: the need of law enforcement officers in a safe and accurate

way to process and identify persons and possessions taken into cus-

tody. “[P]robable cause provides legal justification for arresting a

[suspect], and for a brief period of detention to take the administra-

tive steps incident to arrest,” Gerstein v. Pugh, 420 U. S. 103, 113–

114; and the “validity of the search of a person incident to a lawful

arrest” is settled, United States v. Robinson, 414 U. S. 218, 224. In-

dividual suspicion is not necessary. The “routine administrative pro-

cedure[s] at a police station house incident to booking and jailing the

suspect” have different origins and different constitutional justifica-

tions than, say, the search of a place not incident to arrest, Illinois v.

Lafayette, 462 U. S. 640, 643, which 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. And 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, the government has an interest in

properly identifying “who has been arrested and who is being tried.”

Cite as: 569 U. S. ____ (2013) 3

Syllabus

Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty., 542 U. S.

177, 191. Criminal history is critical to officers who are processing a

suspect for detention. They already seek identity information

through routine and accepted means: comparing booking photo-

graphs to sketch artists’ depictions, showing mugshots to potential

witnesses, and comparing fingerprints against electronic databases of

known criminals and unsolved crimes. The only difference between

DNA analysis and fingerprint databases is the unparalleled accuracy

DNA provides. DNA is another metric of identification used to con-

nect the arrestee with his or her public persona, as reflected in rec-

ords of his or her actions that are available to the police. Second, of-

ficers must ensure that the custody of an arrestee does not create

inordinate “risks for facility staff, for the existing detainee popula-

tion, and for a new detainee.” Florence v. Board of Chosen Freehold-

ers of County of Burlington, 566 U. S. ___, ___. DNA allows officers to

know the type of person being detained. Third, “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. An arrestee

may be more inclined to flee if he thinks that continued contact with

the criminal justice system may expose another serious offense.

Fourth, an arrestee’s past conduct is essential to assessing the dan-

ger he poses to the public, which will inform a court’s bail determina-

tion. Knowing that the defendant is wanted for a previous violent

crime based on DNA identification may be especially probative in this

regard. Finally, in the interests of justice, identifying an arrestee as

the perpetrator of some heinous crime may have the salutary effect of

freeing a person wrongfully imprisoned. Pp. 10–18.

(2) DNA identification is an important advance in the techniques

long used by law enforcement to serve legitimate police concerns. Po-

lice routinely have used scientific advancements as standard proce-

dures for identifying arrestees. Fingerprinting, perhaps the most di-

rect historical analogue to DNA technology, has, from its advent,

been viewed as a natural part of “the administrative steps incident to

arrest.” County of Riverside v. McLaughlin, 500 U. S. 44, 58. How-

ever, DNA identification is far superior. The additional intrusion up-

on the arrestee’s privacy beyond that associated with fingerprinting

is not significant, and DNA identification is markedly more accurate.

It may not be as fast as fingerprinting, but rapid fingerprint analysis

is itself of recent vintage, and the question of how long it takes to

process identifying information goes to the efficacy of the search for

its purpose of prompt identification, not the constitutionality of the

search. Rapid technical advances are also reducing DNA processing

times. Pp. 18–23.

(d) The government interest is not outweighed by respondent’s pri-

4 MARYLAND v. KING

Syllabus

vacy interests. Pp. 23–28.

(1) 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 expec-

tations, which necessarily diminish when he is taken into police cus-

tody. Bell, supra, at 557. Such searches thus differ from the so-

called special needs searches of, e.g., otherwise law-abiding motorists

at checkpoints. See Indianapolis v. Edmond, 531 U. S. 32. The rea-

sonableness inquiry considers two other circumstances in which par-

ticularized suspicion is not categorically required: “diminished expec-

tations of privacy [and a] minimal intrusion.” Illinois v. McArthur,

531 U. S. 326, 330. An invasive surgery may raise privacy concerns

weighty enough for the search to require a warrant, notwithstanding

the arrestee’s diminished privacy expectations, but a buccal swab,

which involves a brief and minimal intrusion with “virtually no risk,

trauma, or pain,” Schmerber v. California, 384 U. S. 757, 771, does

not increase the indignity already attendant to normal incidents of

arrest. Pp. 23–26.

(2) The processing of respondent’s DNA sample’s CODIS loci also

did not intrude on his privacy in a way that would make his DNA

identification unconstitutional. Those loci came from noncoding DNA

parts that do not reveal an arrestee’s genetic traits and are unlikely

to reveal any private medical information. Even if they could provide

such information, they are not in fact tested for that end. Finally, the

Act provides statutory protections to guard against such invasions of

privacy. Pp. 26–28.

425 Md. 550, 42 A. 3d 549, reversed.

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and THOMAS, BREYER, and ALITO, JJ., joined. SCALIA, J., filed a

dissenting opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ.,

joined.

Cite as: 569 U. S. ____ (2013) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash­

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

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 appre­

hend 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 con­

victed 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

2 MARYLAND v. KING

Opinion of the Court

rape conviction, ruled that the DNA taken when King was

booked for the 2009 charge was an unlawful seizure be­

cause obtaining and using the cheek swab was an unrea­

sonable 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 provi­

sions 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 foren­

sic 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 collec­

tion 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

Cite as: 569 U. S. ____ (2013) 3

Opinion of the Court

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 prohib­

its 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 signifi­

cant 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. Os-

borne, 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

4 MARYLAND v. KING

Opinion of the Court

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 pro­

teins, [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 use­

ful 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 match­

es 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.

Cite as: 569 U. S. ____ (2013) 5

Opinion of the Court

§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 de­

stroyed 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 infor­

mation 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

6 MARYLAND v. KING

Opinion of the Court

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 Inves­

tigation, the Combined DNA Index System (CODIS) con­

nects 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 analy­

sis. 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 submis­

sion. Id., at 270. In short, CODIS sets uniform national

standards for DNA matching and then facilitates connec­

Cite as: 569 U. S. ____ (2013) 7

Opinion of the Court

tions 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 stand­

ard, 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 secu­

rity’ 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. ___

8 MARYLAND v. KING

Opinion of the Court

(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 veni­

puncture 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 cen­

tral 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 ‘rea­

sonableness.’ ” 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 pre­

ferred “some quantum of individualized suspicion . . . [as]

a prerequisite to a constitutional search or seizure. But

the Fourth Amendment imposes no irreducible require­

ment 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

Cite as: 569 U. S. ____ (2013) 9

Opinion of the Court

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 gov­

ernment 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 seri­

ous 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 virtu­

10 MARYLAND v. KING

Opinion of the Court

ally no facts for a neutral magistrate to evaluate.” Skin-

ner, 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 reason­

ableness, 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 behav­

ior. 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 applica­

tion 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. Hough-

ton, 526 U. S. 295, 300 (1999). An assessment of reasona­

bleness 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 Mary­

land DNA Collection Act is one that is well established:

the need for law enforcement officers in a safe and accu­

rate way to process and identify the persons and posses­

sions they must take into custody. It is beyond dispute

that “probable cause provides legal justification for arrest­

ing 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).

Cite as: 569 U. S. ____ (2013) 11

Opinion of the Court

Also uncontested is the “right on the part of the Govern­

ment, 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), over­

ruled 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 indi­

vidual suspicion is not necessary, because “[t]he constitu­

tionality 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 constitu­

tional justifications than, say, the search of a place, Illi-

nois 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 cus­

tody, 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

12 MARYLAND v. KING

Opinion of the Court

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 com­

mitting 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 “ar­

restee 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 iden­

tity that officers should know when processing him for

detention. It is a common occurrence that “[p]eople de­

tained for minor offenses can turn out to be the most

devious and dangerous criminals. Hours after the Okla­

homa 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 pho­

tograph 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 fin­

Cite as: 569 U. S. ____ (2013) 13

Opinion of the Court

gerprints 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 infor­

mation 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 narcot­

ics 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 unidenti­

fied 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 identifica­

tion 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 identifica­

tion, 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 com­

mon 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 cre­

14 MARYLAND v. KING

Opinion of the Court

ate 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 inter­

est 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 per­

son 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

Cite as: 569 U. S. ____ (2013) 15

Opinion of the Court

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 com­

pelling.” 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

16 MARYLAND v. KING

Opinion of the Court

require collecting DNA from arrestees, government agen­

cies 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 de­

termining whether a detained suspect can be released

pending trial. See, e.g., States Brief 18, n. 10 (“DNA iden­

tification 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 deci­

sion 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 back­

ground 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, defend­

ants released conditionally are detained on average for

Cite as: 569 U. S. ____ (2013) 17

Opinion of the Court

112 days; those released on unsecured bond for 37 days;

on personal recognizance for 36 days; and on other finan­

cial conditions for 27 days. See Dept. of Justice, Bureau of

Justice Statistics, Compendium of Federal Justice Statis­

tics 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 (discuss­

ing 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 data­

base 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

18 MARYLAND v. KING

Opinion of the Court

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.” Lafa-

yette, 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 protec­

tions 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 ap­

proved for more than a century. Law enforcement

agencies routinely have used scientific advancements in

their standard procedures for the identification of ar­

restees. “Police had been using photography to capture

Cite as: 569 U. S. ____ (2013) 19

Opinion of the Court

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 pic­

tures 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 anthro­

pologist Alphonse Bertillon. Bertillon identification con­

sisted 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 descrip­

tion of the prisoner, and was placed in the rogues’ gallery,

and copies were sent to various cities where similar rec­

ords 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 ar­

20 MARYLAND v. KING

Opinion of the Court

restee 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 McGov-

ern 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. McLaugh-

lin, 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 aggrega­

tions of people in urban centers have rendered the no­

toriety of the individual in the community no longer a

ready means of identification.

Cite as: 569 U. S. ____ (2013) 21

Opinion of the Court

. . . . .

“We find no ground in reason or authority for inter­

fering 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 “ele­

mentary 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 intru­

sion 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 finger­

prints 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 Identifi­

cation System, online at http://www.fbi.gov/about-us/cjis/

fingerprints_biometrics/iafis/iafis. It was not the advent of

22 MARYLAND v. KING

Opinion of the Court

this technology that rendered fingerprint analysis consti­

tutional 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 essen­

tial 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 sub­

stantial 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 ar­

restees 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 reason­

ableness of this minimally invasive search of a person

detained for a serious crime should take account of these

technical advances. Just as fingerprinting was constitu­

tional 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

Cite as: 569 U. S. ____ (2013) 23

Opinion of the Court

improve its speed and therefore its effectiveness. And, as

noted above, actual release of a serious offender as a rou­

tine matter takes weeks or months in any event. By iden­

tifying 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 legit­

imate interest of the government in knowing for an abso­

lute 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 “admin­

istrative steps incident to arrest—i.e., . . . book[ing], pho­

tograph[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 un­

matched 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

24 MARYLAND v. KING

Opinion of the Court

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 com­

mand 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 legiti­

macy 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 re­

gard 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 cov­

ered 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,

Cite as: 569 U. S. ____ (2013) 25

Opinion of the Court

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 “re­

quir[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 expecta­

tions of privacy. So the Court has insisted on some pur­

pose 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 dan­

gerous 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 search­

ing 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, be­

cause 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 particular­

ized suspicion is not categorically required: “diminished

expectations of privacy [and] minimal intrusions.” McAr-

thur, 531 U. S., at 330. This is not to suggest that any

26 MARYLAND v. KING

Opinion of the Court

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 in­

volves 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 analyz­

ing 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 sug­

gests that a buccal swab poses any physical danger what­

soever. 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 non­

coding 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 Amend­

Cite as: 569 U. S. ____ (2013) 27

Opinion of the Court

ment 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 in­

formation, 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 num­

ber 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 speci­

fied in this subtitle.” §2–512(c). This Court has noted

often that “a ‘statutory or regulatory duty to avoid unwar­

ranted 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

28 MARYLAND v. KING

Opinion of the Court

system that did not contain comparable security provi­

sions.” 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 imper­

missible 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 identi­

fication 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.

Cite as: 569 U. S. ____ (2013) 1

SCALIA, J., dissenting

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 SCALIA, with whom JUSTICE GINSBURG,

JUSTICE SOTOMAYOR, and JUSTICE KAGAN join, dissenting.

The Fourth Amendment forbids searching a person for

evidence of a crime when there is no basis for believing the

person is guilty of the crime or is in possession of incrimi-

nating evidence. That prohibition is categorical and with-

out exception; it lies at the very heart of the Fourth

Amendment. Whenever this Court has allowed a suspi-

cionless search, it has insisted upon a justifying motive

apart from the investigation of crime.

It is obvious that no such noninvestigative motive exists

in this case. The Court’s assertion that DNA is being

taken, not to solve crimes, but to identify those in the

State’s custody, taxes the credulity of the credulous. And

the Court’s comparison of Maryland’s DNA searches to

other techniques, such as fingerprinting, can seem apt

only to those who know no more than today’s opinion

has chosen to tell them about how those DNA searches

actually work.

I

A

At the time of the Founding, Americans despised the

British use of so-called “general warrants”—warrants not

grounded upon a sworn oath of a specific infraction by a

particular individual, and thus not limited in scope and

2 MARYLAND v. KING

SCALIA, J., dissenting

application. The first Virginia Constitution declared that

“general warrants, whereby any officer or messenger may

be commanded to search suspected places without evi-

dence of a fact committed,” or to search a person “whose

offence is not particularly described and supported by

evidence,” “are grievous and oppressive, and ought not be

granted.” Va. Declaration of Rights §10 (1776), in 1 B.

Schwartz, The Bill of Rights: A Documentary History 234,

235 (1971). The Maryland Declaration of Rights similarly

provided that general warrants were “illegal.” Md. Decla-

ration of Rights §XXIII (1776), in id., at 280, 282.

In the ratification debates, Antifederalists sarcastically

predicted that the general, suspicionless warrant would be

among the Constitution’s “blessings.” Blessings of the New

Government, Independent Gazetteer, Oct. 6, 1787, in 13

Documentary History of the Ratification of the Constitu-

tion 345 (J. Kaminski & G. Saladino eds. 1981). “Brutus”

of New York asked why the Federal Constitution con-

tained no provision like Maryland’s, Brutus II, N. Y. Jour-

nal, Nov. 1, 1787, in id., at 524, and Patrick Henry warned

that the new Federal Constitution would expose the citi-

zenry to searches and seizures “in the most arbitrary

manner, without any evidence or reason.” 3 Debates on

the Federal Constitution 588 (J. Elliot 2d ed. 1854).

Madison’s draft of what became the Fourth Amendment

answered these charges by providing that the “rights of

the people to be secured in their persons . . . from all un-

reasonable searches and seizures, shall not be violated by

warrants issued without probable cause . . . or not particu-

larly describing the places to be searched.” 1 Annals of

Cong. 434–435 (1789). As ratified, the Fourth Amend-

ment’s Warrant Clause forbids a warrant to “issue” except

“upon probable cause,” and requires that it be “particula[r]”

(which is to say, individualized) to “the place to be

searched, and the persons or things to be seized.” And we

have held that, even when a warrant is not constitution-

Cite as: 569 U. S. ____ (2013) 3

SCALIA, J., dissenting

ally necessary, the Fourth Amendment’s general prohibition

of “unreasonable” searches imports the same requirement

of individualized suspicion. See Chandler v. Miller, 520

U. S. 305, 308 (1997).

Although there is a “closely guarded category of consti-

tutionally permissible suspicionless searches,” id., at 309,

that has never included searches designed to serve “the

normal need for law enforcement,” Skinner v. Railway

Labor Executives’ Assn., 489 U. S. 602, 619 (1989) (inter-

nal quotation marks omitted). Even the common name for

suspicionless searches—“special needs” searches—itself

reflects that they must be justified, always, by concerns

“other than crime detection.” Chandler, supra, at 313–

314. We have approved random drug tests of railroad

employees, yes—but only because the Government’s need

to “regulat[e] the conduct of railroad employees to ensure

safety” is distinct from “normal law enforcement.” Skin-

ner, supra, at 620. So too we have approved suspicionless

searches in public schools—but only because there the

government acts in furtherance of its “responsibilities . . .

as guardian and tutor of children entrusted to its care.”

Vernonia School Dist. 47J v. Acton, 515 U. S. 646, 665

(1995).

So while the Court is correct to note (ante, at 8–9) that

there are instances in which we have permitted searches

without individualized suspicion, “[i]n none of these cases

. . . did we indicate approval of a [search] whose primary

purpose was to detect evidence of ordinary criminal

wrongdoing.” Indianapolis v. Edmond, 531 U. S. 32, 38

(2000). That limitation is crucial. It is only when a gov-

ernmental purpose aside from crime-solving is at stake

that we engage in the free-form “reasonableness” inquiry

that the Court indulges at length today. To put it another

way, both the legitimacy of the Court’s method and the

correctness of its outcome hinge entirely on the truth of a

single proposition: that the primary purpose of these DNA

4 MARYLAND v. KING

SCALIA, J., dissenting

searches is something other than simply discovering evi-

dence of criminal wrongdoing. As I detail below, that

proposition is wrong.

B

The Court alludes at several points (see ante, at 11, 25)

to the fact that King was an arrestee, and arrestees may

be validly searched incident to their arrest. But the Court

does not really rest on this principle, and for good reason:

The objects of a search incident to arrest must be either (1)

weapons or evidence that might easily be destroyed, or (2)

evidence relevant to the crime of arrest. See Arizona v.

Gant, 556 U. S. 332, 343–344 (2009); Thornton v. United

States, 541 U. S. 615, 632 (2004) (SCALIA, J., concurring in

judgment). Neither is the object of the search at issue

here.

The Court hastens to clarify that it does not mean to

approve invasive surgery on arrestees or warrantless

searches of their homes. Ante, at 25. That the Court feels

the need to disclaim these consequences is as damning a

criticism of its suspicionless-search regime as any I can

muster. And the Court’s attempt to distinguish those

hypothetical searches from this real one is unconvincing.

We are told that the “privacy-related concerns” in the

search of a home “are weighty enough that the search may

require a warrant, notwithstanding the diminished expec-

tations of privacy of the arrestee.” Ante, at 26. But why

are the “privacy-related concerns” not also “weighty” when

an intrusion into the body is at stake? (The Fourth

Amendment lists “persons” first among the entities pro-

tected against unreasonable searches and seizures.) And

could the police engage, without any suspicion of wrongdo-

ing, in a “brief and . . . minimal” intrusion into the home of

an arrestee—perhaps just peeking around the curtilage a

bit? See ante, at 26. Obviously not.

At any rate, all this discussion is beside the point. No

Cite as: 569 U. S. ____ (2013) 5

SCALIA, J., dissenting

matter the degree of invasiveness, suspicionless searches

are never allowed if their principal end is ordinary crime-

solving. A search incident to arrest either serves other

ends (such as officer safety, in a search for weapons) or

is not suspicionless (as when there is reason to believe

the arrestee possesses evidence relevant to the crime of

arrest).

Sensing (correctly) that it needs more, the Court elabo-

rates at length the ways that the search here served the

special purpose of “identifying” King.1 But that seems to

me quite wrong—unless what one means by “identifying”

someone is “searching for evidence that he has committed

crimes unrelated to the crime of his arrest.” At points the

Court does appear to use “identifying” in that peculiar

sense—claiming, for example, that knowing “an arrestee’s

past conduct is essential to an assessment of the danger

he poses.” Ante, at 15. If identifying someone means

finding out what unsolved crimes he has committed, then

identification is indistinguishable from the ordinary law-

enforcement aims that have never been thought to justify

a suspicionless search. Searching every lawfully stopped

car, for example, might turn up information about un-

solved crimes the driver had committed, but no one would

say that such a search was aimed at “identifying” him, and

——————

1 The Court’s insistence (ante, at 25) that our special-needs cases “do

not have a direct bearing on the issues presented in this case” is per-

plexing. Why spill so much ink on the special need of identification if a

special need is not required? Why not just come out and say that any

suspicionless search of an arrestee is allowed if it will be useful to solve

crimes? The Court does not say that because most Members of the

Court do not believe it. So whatever the Court’s major premise—the

opinion does not really contain what you would call a rule of decision—

the minor premise is “this search was used to identify King.” The

incorrectness of that minor premise will therefore suffice to demon-

strate the error in the Court’s result.

6 MARYLAND v. KING

SCALIA, J., dissenting

no court would hold such a search lawful. I will therefore

assume that the Court means that the DNA search at

issue here was useful to “identify” King in the normal

sense of that word—in the sense that would identify the

author of Introduction to the Principles of Morals and

Legislation as Jeremy Bentham.

1

The portion of the Court’s opinion that explains the

identification rationale is strangely silent on the actual

workings of the DNA search at issue here. To know those

facts is to be instantly disabused of the notion that what

happened had anything to do with identifying King.

King was arrested on April 10, 2009, on charges unre-

lated to the case before us. That same day, April 10, the

police searched him and seized the DNA evidence at issue

here. What happened next? Reading the Court’s opinion,

particularly its insistence that the search was necessary to

know “who [had] been arrested,” ante, at 11, one might

guess that King’s DNA was swiftly processed and his

identity thereby confirmed—perhaps against some master

database of known DNA profiles, as is done for finger-

prints. After all, was not the suspicionless search here

crucial to avoid “inordinate risks for facility staff” or to

“existing detainee population,” ante, at 14? Surely, then—

surely—the State of Maryland got cracking on those grave

risks immediately, by rushing to identify King with his

DNA as soon as possible.

Nothing could be further from the truth. Maryland

officials did not even begin the process of testing King’s

DNA that day. Or, actually, the next day. Or the day

after that. And that was for a simple reason: Maryland

law forbids them to do so. A “DNA sample collected from

an individual charged with a crime . . . may not be tested

or placed in the statewide DNA data base system prior to

the first scheduled arraignment date.” Md. Pub. Saf. Code

Cite as: 569 U. S. ____ (2013) 7

SCALIA, J., dissenting

Ann. §2–504(d)(1) (Lexis 2011) (emphasis added). And

King’s first appearance in court was not until three days

after his arrest. (I suspect, though, that they did not wait

three days to ask his name or take his fingerprints.)

This places in a rather different light the Court’s solemn

declaration that the search here was necessary so that

King could be identified at “every stage of the criminal

process.” Ante, at 18. I hope that the Maryland officials

who read the Court’s opinion do not take it seriously.

Acting on the Court’s misperception of Maryland law could

lead to jail time. See Md. Pub. Saf. Code Ann. §2–512(c)–(e)

(punishing by up to five years’ imprisonment anyone who

obtains or tests DNA information except as provided by

statute). Does the Court really believe that Maryland

did not know whom it was arraigning? The Court’s re-

sponse is to imagine that release on bail could take so long

that the DNA results are returned in time, or perhaps that

bail could be revoked if the DNA test turned up incrimi-

nating information. Ante, at 16–17. That is no answer at

all. If the purpose of this Act is to assess “whether [King]

should be released on bail,” ante, at 15, why would it

possibly forbid the DNA testing process to begin until King

was arraigned? Why would Maryland resign itself to

simply hoping that the bail decision will drag out long

enough that the “identification” can succeed before the

arrestee is released? The truth, known to Maryland and

increasingly to the reader: this search had nothing to do

with establishing King’s identity.

It gets worse. King’s DNA sample was not received by

the Maryland State Police’s Forensic Sciences Division

until April 23, 2009—two weeks after his arrest. It sat in

that office, ripening in a storage area, until the custodians

got around to mailing it to a lab for testing on June 25,

2009—two months after it was received, and nearly three

since King’s arrest. After it was mailed, the data from the

lab tests were not available for several more weeks, until

8 MARYLAND v. KING

SCALIA, J., dissenting

July 13, 2009, which is when the test results were entered

into Maryland’s DNA database, together with information

identifying the person from whom the sample was taken.

Meanwhile, bail had been set, King had engaged in dis-

covery, and he had requested a speedy trial—presumably

not a trial of John Doe. It was not until August 4, 2009—

four months after King’s arrest—that the forwarded sam-

ple transmitted (without identifying information) from the

Maryland DNA database to the Federal Bureau of Investi-

gation’s national database was matched with a sample

taken from the scene of an unrelated crime years earlier.

A more specific description of exactly what happened at

this point illustrates why, by definition, King could

not have been identified by this match. The FBI’s

DNA database (known as CODIS) consists of two distinct

collections. FBI, CODIS and NDIS Fact Sheet, http://

www.fbi.gov/about-us/lab/codis/codis-and-ndis-fact-sheet

(all Internet materials as visited May 31, 2013, and avail-

able in Clerk of Court’s case file). One of them, the one to

which King’s DNA was submitted, consists of DNA sam-

ples taken from known convicts or arrestees. I will refer

to this as the “Convict and Arrestee Collection.” The other

collection consists of samples taken from crime scenes; I

will refer to this as the “Unsolved Crimes Collection.” The

Convict and Arrestee Collection stores “no names or other

personal identifiers of the offenders, arrestees, or detain-

ees.” Ibid. Rather, it contains only the DNA profile itself,

the name of the agency that submitted it, the laboratory

personnel who analyzed it, and an identification number

for the specimen. Ibid. This is because the submitting

state laboratories are expected already to know the identi-

ties of the convicts and arrestees from whom samples are

taken. (And, of course, they do.)

Moreover, the CODIS system works by checking to see

whether any of the samples in the Unsolved Crimes Col-

lection match any of the samples in the Convict and Ar-

Cite as: 569 U. S. ____ (2013) 9

SCALIA, J., dissenting

restee Collection. Ibid. That is sensible, if what one

wants to do is solve those cold cases, but note what it

requires: that the identity of the people whose DNA has

been entered in the Convict and Arrestee Collection al-

ready be known.2 If one wanted to identify someone in

custody using his DNA, the logical thing to do would be to

compare that DNA against the Convict and Arrestee

Collection: to search, in other words, the collection that

could be used (by checking back with the submitting

state agency) to identify people, rather than the collection

of evidence from unsolved crimes, whose perpetrators are

by definition unknown. But that is not what was done.

And that is because this search had nothing to do with

identification.

In fact, if anything was “identified” at the moment that

the DNA database returned a match, it was not King—his

identity was already known. (The docket for the original

criminal charges lists his full name, his race, his sex, his

height, his weight, his date of birth, and his address.)

Rather, what the August 4 match “identified” was the

previously-taken sample from the earlier crime. That

sample was genuinely mysterious to Maryland; the State

knew that it had probably been left by the victim’s attack-

er, but nothing else. King was not identified by his associ-

ation with the sample; rather, the sample was identified

by its association with King. The Court effectively de-

stroys its own “identification” theory when it acknowledges

that the object of this search was “to see what [was] al-

ready known about [King].” King was who he was, and

——————

2 By the way, this procedure has nothing to do with exonerating the

wrongfully convicted, as the Court soothingly promises. See ante, at 17.

The FBI CODIS database includes DNA from unsolved crimes. I know

of no indication (and the Court cites none) that it also includes DNA

from all—or even any—crimes whose perpetrators have already been

convicted.

10 MARYLAND v. KING

SCALIA, J., dissenting

volumes of his biography could not make him any more or

any less King. No minimally competent speaker of Eng-

lish would say, upon noticing a known arrestee’s similarity

“to a wanted poster of a previously unidentified suspect,”

ante, at 13, that the arrestee had thereby been identified.

It was the previously unidentified suspect who had been

identified—just as, here, it was the previously unidentified

rapist.

2

That taking DNA samples from arrestees has nothing to

do with identifying them is confirmed not just by actual

practice (which the Court ignores) but by the enabling

statute itself (which the Court also ignores). The Mary-

land Act at issue has a section helpfully entitled “Purpose

of collecting and testing DNA samples.” Md. Pub. Saf.

Code Ann. §2–505. (One would expect such a section to

play a somewhat larger role in the Court’s analysis of the

Act’s purpose—which is to say, at least some role.) That

provision lists five purposes for which DNA samples may

be tested. By this point, it will not surprise the reader to

learn that the Court’s imagined purpose is not among

them.

Instead, the law provides that DNA samples are collected

and tested, as a matter of Maryland law, “as part of an

official investigation into a crime.” §2–505(a)(2). (Or, as

our suspicionless-search cases would put it: for ordinary

law-enforcement purposes.) That is certainly how every-

one has always understood the Maryland Act until today.

The Governor of Maryland, in commenting on our deci-

sion to hear this case, said that he was glad, because

“[a]llowing law enforcement to collect DNA samples . . . is

absolutely critical to our efforts to continue driving down

crime,” and “bolsters our efforts to resolve open investiga-

tions and bring them to a resolution.” Marbella, Supreme

Court Will Review Md. DNA Law, Baltimore Sun, Nov. 10,

Cite as: 569 U. S. ____ (2013) 11

SCALIA, J., dissenting

2012, pp. 1, 14. The attorney general of Maryland re-

marked that he “look[ed] forward to the opportunity to

defend this important crime-fighting tool,” and praised the

DNA database for helping to “bring to justice violent

perpetrators.” Ibid. Even this Court’s order staying the

decision below states that the statute “provides a valuable

tool for investigating unsolved crimes and thereby helping

to remove violent offenders from the general population”—

with, unsurprisingly, no mention of identity. 567 U. S.

___, ___ (2012) (ROBERTS, C. J., in chambers) (slip op.,

at 3).

More devastating still for the Court’s “identification”

theory, the statute does enumerate two instances in which

a DNA sample may be tested for the purpose of identifica-

tion: “to help identify human remains,” §2–505(a)(3) (em-

phasis added), and “to help identify missing individuals,”

§2–505(a)(4) (emphasis added). No mention of identifying

arrestees. Inclusio unius est exclusio alterius. And note

again that Maryland forbids using DNA records “for any

purposes other than those specified”—it is actually a crime

to do so. §2–505(b)(2).

The Maryland regulations implementing the Act con-

firm what is now monotonously obvious: These DNA

searches have nothing to do with identification. For ex-

ample, if someone is arrested and law enforcement deter-

mines that “a convicted offender Statewide DNA Data

Base sample already exists” for that arrestee, “the agency

is not required to obtain a new sample.” Code of Md.

Regs., tit. 29, §05.01.04(B)(4) (2011). But how could the

State know if an arrestee has already had his DNA sample

collected, if the point of the sample is to identify who he is?

Of course, if the DNA sample is instead taken in order to

investigate crimes, this restriction makes perfect sense:

Having previously placed an identified someone’s DNA on

file to check against available crime-scene evidence, there

is no sense in going to the expense of taking a new sample.

12 MARYLAND v. KING

SCALIA, J., dissenting

Maryland’s regulations further require that the “individ-

ual collecting a sample . . . verify the identity of the indi-

vidual from whom a sample is taken by name and,

if applicable, State identification (SID) number.”

§05.01.04(K). (But how?) And after the sample is taken, it

continues to be identified by the individual’s name, finger-

prints, etc., see §05.01.07(B)—rather than (as the Court

believes) being used to identify individuals. See

§05.01.07(B)(2) (“Records and specimen information shall

be identified by . . . [the] [n]ame of the donor” (emphasis

added)).

So, to review: DNA testing does not even begin until

after arraignment and bail decisions are already made.

The samples sit in storage for months, and take weeks to

test. When they are tested, they are checked against the

Unsolved Crimes Collection—rather than the Convict and

Arrestee Collection, which could be used to identify them.

The Act forbids the Court’s purpose (identification), but

prescribes as its purpose what our suspicionless-search

cases forbid (“official investigation into a crime”). Against

all of that, it is safe to say that if the Court’s identification

theory is not wrong, there is no such thing as error.

II

The Court also attempts to bolster its identification

theory with a series of inapposite analogies. See ante, at

18–23.

Is not taking DNA samples the same, asks the Court, as

taking a person’s photograph? No—because that is not a

Fourth Amendment search at all. It does not involve a

physical intrusion onto the person, see Florida v.

Jardines, 569 U. S. 1, ___ (2013) (slip op., at 3), and we

have never held that merely taking a person’s photograph

invades any recognized “expectation of privacy,” see Katz

v. United States, 389 U. S. 347 (1967). Thus, it is unsur-

prising that the cases the Court cites as authorizing photo-

Cite as: 569 U. S. ____ (2013) 13

SCALIA, J., dissenting

taking do not even mention the Fourth Amendment. See

State ex rel. Bruns v. Clausmier, 154 Ind. 599, 57 N. E.

541 (1900) (libel), Shaffer v. United States, 24 App. D. C.

417 (1904) (Fifth Amendment privilege against self-

incrimination).

But is not the practice of DNA searches, the Court asks,

the same as taking “Bertillon” measurements—noting an

arrestee’s height, shoe size, and so on, on the back of a

photograph? No, because that system was not, in the

ordinary case, used to solve unsolved crimes. It is possi-

ble, I suppose, to imagine situations in which such meas-

urements might be useful to generate leads. (If witnesses

described a very tall burglar, all the “tall man” cards could

then be pulled.) But the obvious primary purpose of such

measurements, as the Court’s description of them makes

clear, was to verify that, for example, the person arrested

today is the same person that was arrested a year ago.

Which is to say, Bertillon measurements were actually

used as a system of identification, and drew their primary

usefulness from that task.3

It is on the fingerprinting of arrestees, however, that the

Court relies most heavily. Ante, at 20–23. The Court does

not actually say whether it believes that taking a person’s

fingerprints is a Fourth Amendment search, and our cases

provide no ready answer to that question. Even assuming

so, however, law enforcement’s post-arrest use of finger-

prints could not be more different from its post-arrest

use of DNA. Fingerprints of arrestees are taken primarily

to identify them (though that process sometimes solves

——————

3 Puzzlingly, the Court’s discussion of photography and Bertillon

measurements repeatedly cites state cases (such as Clausmier) that

were decided before the Fourth Amendment was held to be applicable

to the States. See Wolf v. Colorado, 338 U. S. 25 (1949); Mapp v. Ohio,

367 U. S. 643 (1961). Why the Court believes them relevant to the

meaning of that Amendment is therefore something of a mystery.

14 MARYLAND v. KING

SCALIA, J., dissenting

crimes); the DNA of arrestees is taken to solve crimes

(and nothing else). Contrast CODIS, the FBI’s nationwide

DNA database, with IAFIS, the FBI’s Integrated

Automated Fingerprint Identification System. See FBI,

Integrated Automated Fingerprint Identification System,

http://www.fbi.gov/about-us/cjis/fingerprints_biometrics/iafis/iafis

(hereinafter IAFIS).

Fingerprints DNA Samples

The “average response DNA analysis can take

time for an electronic months—far too long to be

criminal fingerprint useful for identifying someone.

submission is about 27

minutes.” IAFIS.

IAFIS includes detailed CODIS contains “[n]o names

identification information, or other personal identifiers of

including “criminal histo- the offenders, arrestees, or

ries; mug shots; scars and detainees.” See CODIS and

tattoo photos; physical NDIS Fact Sheet.

characteristics like

height, weight, and hair

and eye color.”

“Latent prints” recovered The entire point of the DNA

from crime scenes are not database is to check crime

systematically compared scene evidence against the

against the database of profiles of arrestees and

known fingerprints, since convicts as they come in.

that requires further

forensic work.4

——————

4 See,e.g., FBI, Privacy Impact Assessment: Integrated Automated

Fingerprint Identification System (IAFIS)/Next Generation Identifica-

tion (NGI) Repository for Individuals of Special Concern (RISC),

Cite as: 569 U. S. ____ (2013) 15

SCALIA, J., dissenting

The Court asserts that the taking of fingerprints was

“constitutional for generations prior to the introduction” of

the FBI’s rapid computer-matching system. Ante, at 22.

This bold statement is bereft of citation to authority

because there is none for it. The “great expansion in finger-

printing came before the modern era of Fourth Amend-

ment jurisprudence,” and so we were never asked to decide

the legitimacy of the practice. United States v. Kincade,

379 F. 3d 813, 874 (CA9 2004) (Kozinski, J., dissenting).

As fingerprint databases expanded from convicted

criminals, to arrestees, to civil servants, to immigrants,

to everyone with a driver’s license, Americans simply

“became accustomed to having our fingerprints on file

in some government database.” Ibid. But it is wrong

to suggest that this was uncontroversial at the time, or

that this Court blessed universal fingerprinting for

“generations” before it was possible to use it effectively for

identification.

The Court also assures us that “the delay in processing

DNA from arrestees is being reduced to a substantial

degree by rapid technical advances.” Ante, at 22. The

idea, presumably, is that the snail’s pace in this case is

atypical, so that DNA is now readily usable for identifica-

tion. The Court’s proof, however, is nothing but a pair of

press releases—each of which turns out to undercut this

argument. We learn in them that reductions in backlog

have enabled Ohio and Louisiana crime labs to analyze a

submitted DNA sample in twenty days.5 But that is still

——————

http://www.fbi.gov/foia/privacy-impact-assessments/iafis-ngi-risc (searches

of the “Unsolved Latent File” may “take considerably more time”).

5 See Attorney General DeWine Announces Significant Drop in

DNA Turnaround Time (Jan. 4, 2013), http://ohioattorneygeneral.gov/

Media/News-Releases/January-2013/Attorney-General-DeWine-Announces-

Significant-Drop; Gov. Jindal Announces Elimination of DNA Backlog

16 MARYLAND v. KING

SCALIA, J., dissenting

longer than the eighteen days that Maryland needed to

analyze King’s sample, once it worked its way through the

State’s labyrinthine bureaucracy. What this illustrates is

that these times do not take into account the many other

sources of delay. So if the Court means to suggest that

Maryland is unusual, that may be right—it may qualify in

this context as a paragon of efficiency. (Indeed, the Gov-

ernor of Maryland was hailing the elimination of that

State’s backlog more than five years ago. See Wheeler,

O’Malley Wants to Expand DNA Testing, Baltimore Sun,

Jan. 11, 2008, p. 5B.) Meanwhile, the Court’s holding

will result in the dumping of a large number of arrestee

samples—many from minor offenders—onto an already over-

burdened system: Nearly one-third of Americans will be

arrested for some offense by age 23. See Brame, Turner,

Paternoster, & Bushway, Cumulative Prevalence of Arrest

From Ages 8 to 23 in a National Sample, 129 Pediatrics 21

(2011).

The Court also accepts uncritically the Government’s

representation at oral argument that it is developing

devices that will be able to test DNA in mere minutes. At

most, this demonstrates that it may one day be possible to

design a program that uses DNA for a purpose other than

crime-solving—not that Maryland has in fact designed

such a program today. And that is the main point, which

the Court’s discussion of the brave new world of instant

DNA analysis should not obscure. The issue before us is

not whether DNA can some day be used for identification;

nor even whether it can today be used for identification;

but whether it was used for identification here.

Today, it can fairly be said that fingerprints really are

used to identify people—so well, in fact, that there would

——————

(Nov. 17, 2011), http://www.gov.state.la.us/index.cfm?md=newsroom&

tmp=detail&articleID=3102.

Cite as: 569 U. S. ____ (2013) 17

SCALIA, J., dissenting

be no need for the expense of a separate, wholly redundant

DNA confirmation of the same information. What DNA

adds—what makes it a valuable weapon in the law-

enforcement arsenal—is the ability to solve unsolved

crimes, by matching old crime-scene evidence against the

profiles of people whose identities are already known.

That is what was going on when King’s DNA was taken,

and we should not disguise the fact. Solving unsolved

crimes is a noble objective, but it occupies a lower place in

the American pantheon of noble objectives than the pro-

tection of our people from suspicionless law-enforcement

searches. The Fourth Amendment must prevail.

* * *

The Court disguises the vast (and scary) scope of its

holding by promising a limitation it cannot deliver. The

Court repeatedly says that DNA testing, and entry into a

national DNA registry, will not befall thee and me, dear

reader, but only those arrested for “serious offense[s].”

Ante, at 28; see also ante, at 1, 9, 14, 17, 22, 23, 24 (re-

peatedly limiting the analysis to “serious offenses”). I

cannot imagine what principle could possibly justify this

limitation, and the Court does not attempt to suggest any.

If one believes that DNA will “identify” someone arrested

for assault, he must believe that it will “identify” someone

arrested for a traffic offense. This Court does not base its

judgments on senseless distinctions. At the end of the

day, logic will out. When there comes before us the taking

of DNA from an arrestee for a traffic violation, the Court

will predictably (and quite rightly) say, “We can find no

significant difference between this case and King.” Make

no mistake about it: As an entirely predictable conse-

quence of today’s decision, your DNA can be taken and

entered into a national DNA database if you are ever

arrested, rightly or wrongly, and for whatever reason.

The most regrettable aspect of the suspicionless search

18 MARYLAND v. KING

SCALIA, J., dissenting

that occurred here is that it proved to be quite unneces-

sary. All parties concede that it would have been entirely

permissible, as far as the Fourth Amendment is con-

cerned, for Maryland to take a sample of King’s DNA as a

consequence of his conviction for second-degree assault.

So the ironic result of the Court’s error is this: The only

arrestees to whom the outcome here will ever make a

difference are those who have been acquitted of the crime

of arrest (so that their DNA could not have been taken

upon conviction). In other words, this Act manages to

burden uniquely the sole group for whom the Fourth

Amendment’s protections ought to be most jealously

guarded: people who are innocent of the State’s accusations.

Today’s judgment will, to be sure, have the beneficial

effect of solving more crimes; then again, so would the

taking of DNA samples from anyone who flies on an air-

plane (surely the Transportation Security Administration

needs to know the “identity” of the flying public), applies

for a driver’s license, or attends a public school. Perhaps

the construction of such a genetic panopticon is wise. But

I doubt that the proud men who wrote the charter of our

liberties would have been so eager to open their mouths

for royal inspection.

I therefore dissent, and hope that today’s incursion upon

the Fourth Amendment, like an earlier one,6 will some day

be repudiated.

——————

6 Compare, New York v. Belton, 453 U. S. 454 (1981) (suspicionless

search of a car permitted upon arrest of the driver), with Arizona v.

Gant, 556 U. S. 332 (2009) (on second thought, no).