Is Taking a Mouth DNA Swab an Illegal Search Under the Fourth Amendment



The Fourth Amendment of the United States Constitution provides, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” There have been thousands of cases where United States Federal and State Courts have been asked to determine what is an unreasonable search.


One of the more recent cases relative to the 4th Amendment is Maryland v King which was decided by the United States Supreme Court in a 5-4 decision on June 3, 2013. This case allows police to take a swab of the person’s mouth to collect a DNA sample as part of a routine booking procedure for a lawful arrest on a “serious offense”.


The Supreme Court determined that the key factor to is whether the action is reasonable. The Court said that to access what is reasonable there must be a weighing of the government’s interest in identifying the persons in their custody versus the degree a person’s privacy is infringed upon. It was also stated that the Court felt it important for law enforcement to know the identity of the people in custody, especially in light of the fact that some people being held for minor offenses can turn out to be dangerous criminals (Timothy McVeigh – the Oklahoma City Bomber was arrested for driving without a license plate).


The Supreme Court determined that taking a DNA sample is the same function as a obtaining a person’s name, taking a picture or fingerprints and there is minimal intrusion (no risk, trauma, pain or breaking of the skin). Also, a person that is taken lawfully in to custody has a lesser expectation of privacy.


The defense attorneys with LEWIS & DICKSTEIN, P.L.L.C. take great exception with the United States Supreme Court’s holding in Maryland v. King. Although the identity of a suspect is important relative to determining if the person has outstanding warrants as the Supreme Court indicates, taking of DNA does not accomplish any of the false purposes the Court claims the ruling fulfills. In reality, DNA takes months in most cases to analyze so it cannot be considered relative to arrest time identification decisions. As the courts in Michigan and the United States continuously deplete and devalue our constitutional rights, the criminal defense attorney specialists with LEWIS & DICKSTEIN, P.L.L.C. will fight every day to protect the constitutional rights of those accused of felony or misdemeanor criminal offenses.


A Michigan Criminal Defense Attorney will help when constitutional issues need to be evaluated and assessed.


When you are faced with the possibility that your constitutional rights have been violated, it is extremely important that you have legal representation that has experience, knowledge and expertise in constitutional law issues. The attorneys at LEWIS & DICKSTEIN, P.L.L.C. have over 50 years of combined legal experience in criminal and constitutional law matters. You need to have your rights protected and a criminal defense attorney who will fight to stop the government from overstepping its bounds. Please call us at (248) 263-6800 or complete a Request for Assistance Form and one of our highly experienced criminal defense lawyers will promptly contact you.