Dethroning King: Why the Warrantless DNA Testing of Arrestees Should Be Prohibited Under State Constitutions

68 Pages Posted: 8 Feb 2014 Last revised: 31 Oct 2014

Date Written: 2013


In Maryland v. King, the Supreme Court ruled that a state statute mandating the warrantless DNA testing of all people arrested for violent felonies did not violate the Fourth Amendment of the Constitution. The 5-4 majority held that the government had a legitimate interest in the identification of arrestees, which overrode the arrestees’ reduced expectations of privacy. Despite the Court’s contention, arrestees are presumed innocent and thus have an expectation of privacy much closer to an ordinary citizen than a convicted offender. Although the Court determined that governments have a legitimate government interest in “identifying” the arrestees, the “identification” is really ordinary, investigative police work, which cannot overcome the violation of the arrestees’ reasonable expectations of privacy.

The majority also found the DNA testing to be essentially the same as fingerprinting, ignoring that DNA testing is intrusive and not used for identification and can reveal much more information about a person than fingerprinting. Furthermore, the suspicionless DNA testing for the purposes of investigation is not exempt from the Warrant Clause under any other common exception, including the special needs, incident to arrest, or exigent circumstances doctrines. If the Court’s identification justification is sufficient, there will be no stopping the warrantless DNA testing of individuals any time they are asked for identification by law enforcement, such as during traffic stops. Allowing carte blanche DNA testing places an individual’s most intimate information at risk of being disseminated, whether by accidental or intentional governmental abuse.

This Comment argues that states should hold that the warrantless DNA testing of arrestees is unconstitutional under their state constitutional provisions analogous to the Fourth Amendment. The doctrine of federalism allows a state to grant more protections to its citizens under the state constitution than those provided by the United States Constitution. By simply requiring law enforcement agencies to obtain a warrant supported by probable cause before obtaining the DNA of arrestees, state courts will ensure that the privacy rights of innocent-until-proven-guilty arrestees are maintained.

Keywords: Maryland v. King, DNA, D.N.A., testing, arrestee, federalism, state constitution, constitution, privacy, government interest, balancing, 4th Amendment, Fourth Amendment, search, search and seizure, identification, investigation, suspicion, suspicionless, warrant, fingerprinting, fingerprint

Suggested Citation

Stuart, Brian, Dethroning King: Why the Warrantless DNA Testing of Arrestees Should Be Prohibited Under State Constitutions (2013). 83 Miss. L.J. 1111 (2014), Available at SSRN: or

Brian Stuart (Contact Author)

University of Mississippi ( email )

Oxford, MS 38677
United States

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