Can Police in Massachusetts Take a Person's DNA After Arrest?


July 11, 2013
By Lefteris K. Travayiakis, Esq. on July 11, 2013 9:21 PM |

In a recent case involving a constitutional challenge to seizing a person's DNA without his consent, the United States Supreme Judicial Court, in Maryland v. King, considered whether it is a constitutional violation for police officers to take a defendant's DNA as part of the normal booking procedure following an arrest. This was authorized by a statute enacted in Maryland.

In that case, the defendant was arrested on assault charges. During the booking process, officers used a cheek swab to take a DNA sample from the defendant. The swab was ultimately matched to an unsolved 2003 rape, and the defendant was charged with that crime as well.

The defendant moved to suppress the taken of his DNA without his consent or without a court order, and the case eventually made its way to the United States Supreme Court, which held that:

When police make an arrest supported by probable cause for a serious offense and the suspect is detained at the police station, it is reasonable under the 4th Amendment of the United States Constitution to take and analyze that persons DNA. This, the court held, is a legitimate booking procedure, much like taking a person's fingerprints or photographing the defendant.

Incredulously, the United States Supreme Court majority held that a buccal swab for the taking of DNA evidence is a relatively slight intrusion on the privacy interests of a person; while also ensuring the government's interest in accurate identifying those persons arrested.

Notably, Justice Scalia ripped the decision in his dissent, inferring that the real reason the police take a person's DNA is not to identify them, but to solve crimes.

Despite the Supreme Court's rulings, the Massachusetts Declaration of Rights generally affords greater constitutional and privacy protection for its citizens. With respect to the taking of DNA evidence, no Massachusetts statute permits police officers to routinely take a person's DNA as part of the booking process.

Rather, the taking of a person's DNA without his consent may only be compelled by court order or upon conviction by statute. Massachusetts General Laws Chapter 22E, Section 3, mandates that any person convicted of a felony must submit their DNA to be included into the state's database.

Boston Criminal Lawyer Lefteris K. Travayiakis is available for consultation 24/7 on all Massachusetts Criminal Charges.

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