FOOTHILL RANCH ( — In a 5-4 decision Monday, the nation’s highest court ruled it constitutional for law enforcement to take DNA from suspects under arrest without a warrant, a practice legal in California since 2004.

Liberal-leaning Justice Stephen Breyer joined the conservative-leaning justices in the majority opinion, while conservative Justice Antonin Scalia joined the liberal-leaning justices in the dissenting minority.

The vote means law enforcement will maintain its right to take DNA samples from suspected criminals under arrest.

“The result didn’t surprise me just because of how widespread the practice of taking DNA from criminal suspects is throughout the United States,” said Professor Brian Levin, a criminal justice professor at Cal State San Bernardino and a former officer with the New York City Police Department.

Writing for the majority, Justice Anthony Kennedy dismissed the idea that information from DNA was being abused, saying that a DNA swab is like a fingerprint or a photograph.

In a statement, California Attorney General Kamala Harris said:

“Police and prosecutors across the country rely on DNA evidence everyday to identify those who have committed some of the most heinous crimes imaginable. Today the United States Supreme Court upheld the ability of our nation’s law enforcement officers to use this powerful crime fighting tool.”

In his dissenting opinion, Scalia called the ruling “vast” and “scary” and claimed the practice violated the Fourth Amendment, which protects against illegal search and seizure.

The ACLU blasted the ruling in a statement:

“The majority opinion goes against decades of precedent that makes it clear that the police cannot search an individual for evidence of a crime (and that’s clearly what they’re doing here) without a specific reason to think that the search will actually uncover some evidence.”

The practice of taking DNA samples from suspects under arrest has been legal in California since 2004, when voters approved Proposition 69.


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