SUPREME COURT OF THE UNITED STATES, Slides of Law

Download SUPREME COURT OF THE UNITED STATES and more Slides Law in PDF only on Docsity! Please note: this is an abridged version for use in a class on search and seizure. The serious student is encouraged to read the entire opinion. 1 (Slip Opinion) OCTOBER TERM, 2012 Opinion of the Court NOTICE: This opinion is subject to formal revision before publication in thepreliminary print of the United States Reports. Readers are requested tonotify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in orderthat 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 gunbroke into a woman’s home in Salisbury, Maryland. He raped her. The police were unable to identify or apprehend 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 hischeeks. The DNA was found to match the DNA taken from the Salisbury rape victim. King was tried and convicted 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 rape conviction, ruled that the DNA taken when King was booked for the 2009 charge was an unlawful seizure because obtaining and using the cheek swab was an unreasonable search of the person. It set the rape conviction aside. This Court granted certiorari and now reverses the judgment of the Maryland court. When King was arrested on April 10, 2009, for menacing 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 provisions 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, onAugust 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 forensic 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 collection 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 purported interest in using King’s DNA to identify him.” In reaching that conclusion the Maryland Court relied on the decisions of various other courts that have concluded that DNA identification of arrestees is impermissible. Both federal and state courts have reached differing conclusions as to whether the Fourth Amendment prohibits the collection and analysis of a DNA sample from persons arrested, but not yet convicted, on felony charges. This Court granted certiorari to address the question. King is the respondent here. The advent of DNA technology is one of the most significant 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, 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 thecriminal justice system and police investigative practices.” 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 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 proteins, [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 toidentify a person. The term apparently is intended to indicate that this particular noncoding region, while useful 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 areknown as “alleles,” id., at 25; and multiple alleles are analyzed in order to ensure that a DNA profile matchesonly one individual. Future refinements may improve pres- ent technology, but even now STR analysis makes it “possible to determine whether a biological tissue matches a suspect with near certainty.” The Act authorizes Maryland law enforcement authorities 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. §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.” DNA samples are also destroyed 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.” The Act also limits the information added to a DNA database and how it may be used. Specifically, “[o]nlyDNA records that directly relate to the identification of individuals shall be collected and stored.” 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 specified in this subtitle.” Tests for familial matches are also prohibited. (“A person may not perform a search of the statewide DNA data persons and possessions they must take into custody. It is beyond dispute that “probable cause provides legal justification for arresting a person suspected of crime, and for a brief period ofdetention to take the administrative steps incident to arrest.” Also uncontested is the “right on the part of the Government, 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), overruled on other grounds, “The validity of the search of a person incident to a lawful arrest has been regarded as settled from itsfirst 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 individual suspicion is not necessary, because “[t]he constitutionality of a search incident to an arrest does not depend on whether there is any indication that the person arrested 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 station house incident to booking and jailing the suspect”derive from different origins and have different constitutional justifications than, say, the search of a place, Illinois v. Lafayette, 462 U. S. 640, 643 (1983); for the searchof 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 theaccused 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 fromthe normal channels of society and hold him in legal custody, DNA identification plays a critical role in servingthose interests. First, “[i]n every criminal case, it is known and must beknown who has been arrested and who is being tried.” An individual’s identity ismore than just his name or Social Security number, and the government’s interest in identification goes beyondensuring that the proper name is typed on the indictment. Identity has never been considered limited to the name onthe arrestee’s birth certificate. In fact, a name is of little value compared to the real interest in identification atstake when an individual is brought into custody. “It is a well recognized aspect of criminal conduct that the perpetrator will take unusual steps to conceal not only his conduct, but also his identity. Disguises used while committing 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 “arrestee may be carrying a false ID or lie about his identity,” and “criminal history records . . . can be inaccurate or incomplete.” A suspect’s criminal history is a critical part of his identity that officers should know when processing him fordetention. It is a common occurrence that “[p]eople detained for minor offenses can turn out to be the most devious and dangerous criminals. Hours after the Oklahoma City bombing, Timothy McVeigh was stopped by a state trooper who noticed he was driving without a licenseplate. Police stopped serial killer Joel Rifkin for the same reason. One of the terrorists involved in the September 11attacks was stopped and ticketed for speeding just two days before hijacking Flight 93.” Police already seek this crucial identifying information. They use routine and acceptedmeans as varied as comparing the suspect’s booking photograph 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 fingerprints against electronic databases of known criminalsand unsolved crimes. In this respect the only differencebetween DNA analysis and the accepted use of fingerprint databases is the unparalleled accuracy DNA provides. The task of identification necessarily entails searchingpublic and police records based on the identifying information 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 notthemselves evidence of any particular crime, in the waythat a drug test can by itself be evidence of illegal narcotics use. A DNA profile is useful to the police because itgives them a form of identification to search the records already in their valid possession. In this respect the use ofDNA for identification is no different than matching anarrestee’s face to a wanted poster of a previously unidentified 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 identification used to connect the arrestee with his or her publicpersona, as reflected in records of his or her actions that are available to the police. Those records may be linked tothe arrestee by a variety of relevant forms of identification, including name, alias, date and time of previousconvictions and the name then used, photograph, SocialSecurity number, or CODIS profile. These data, found in official records, are checked as a routine matter to producea more comprehensive record of the suspect’s complete identity. Finding occurrences of the arrestee’s CODIS profile in outstanding cases is consistent with this common 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 responsibilityfor ensuring that the custody of an arrestee does not create 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 detaining suspects and detaining the property of any felon.For these purposes officers must know the type of personwhom they are detaining, and DNA allows them to makecritical choices about how to proceed. “Knowledge of identity may inform an officer that asuspect 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 allow the police to concentrate their efforts elsewhere. Identity may prove particularly important in [certain cases, such as] where the police are investigatingwhat 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 interest 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 criminalprosecution, “the Government has a substantial interest inensuring that persons accused of crimes are available for trials.” Bell v. Wolfish, 441 U. S. 520, 534 (1979). A person who is arrested for one offense but knows that he has yet to answer for some past crime may be more inclined toflee the instant charges, lest continued contact with thecriminal justice system expose one or more other serious offenses. For example, a defendant who had committed aprior 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 backto the interest in safety; for a detainee who abscondsfrom custody presents a risk to law enforcement officers,other detainees, victims of previous crimes, witnesses, andsociety at large. Fourth, an arrestee’s past conduct is essential to anassessment 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 compelling.” United States v. Salerno, 481 U. S. 739, 749 (1987). DNA identification of a suspect in a violent crimeprovides critical information to the police and judicialofficials in making a determination of the arrestee’s future dangerousness. This inquiry always has entailed somescrutiny beyond the name on the defendant’s driver’slicense. For example, Maryland law requires a judge totake 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 residence 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.” This interest is not speculative. In considering laws to require collecting DNA from arrestees, government agencies around the Nation found evidence of numerous cases in which felony arrestees would have been identifiedas violent through DNA identification matching themto previous crimes but who later committed additionalcrimes because such identification was not used to detain them. Present capabilities make it possible to complete a DNA identification that provides information essential to determining whether a detained suspect can be releasedpending trial. See, e.g., States Brief 18, n. 10 (“DNA identification database samples have been processed in as fewas two days in California, although around 30 days hasbeen average”). Regardless of when the initial bail decision 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 identitymore meaning in the whole context of who the person really is. And even when release is permitted, the background identity of the suspect is necessary for determiningwhat 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, defendants released conditionally are detained on average for 112 days; those released on unsecured bond for 37 days; on personal recognizance for 36 days; and on other financial conditions for 27 days. See Dept. of Justice, Bureau of Justice Statistics, Compendium of Federal Justice Statistics 45 (NCJ–213476, Dec. 2006) online at http://bjs.gov/content/pub/pdf/cfjs04.pdf. During this entire period, additional 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 unknownviolent 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 (discussing examples where bail and diversion determinationswere reversed after DNA identified the arrestee’s violent history). Pretrial release of a person charged with adangerous crime is a most serious responsibility. It is reasonable in all respects for the State to use an accepted database to determine if an arrestee is the object of suspicionin other serious crimes, suspicion that may provide astrong incentive for the arrestee to escape and flee. Finally, in the interests of justice, the identification ofan arrestee as the perpetrator of some heinous crime mayhave 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 detention of . . . innocent people.” Because proper processing of arrestees is so importantand has consequences for every stage of the criminalprocess, the Court has recognized that the “governmen- tal interests underlying a station-house search of the arrestee’s person and possessions may in some circumstancesbe even greater than those supporting a search immediately 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 traditionallygoverning 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 Opinion of the Court . . . . . “We find no ground in reason or authority for interfering with a method of identifying persons chargedwith crime which has now become widely known and frequently practiced.” Id., at 69–70. By the middle of the 20th century, it was considered “elementary 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 tofingerprinting in many ways, so much so that to insist on fingerprints as the norm would make little sense to eitherthe forensic expert or a layperson. The additional intrusion 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 fingerprints 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 offingerprints 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 waslargely a manual, labor-intensive process, taking weeks ormonths to process a single submission.” Federal Bureau of Investigation, Integrated Automated Fingerprint Identification 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 constitutional in a single moment. The question of how long ittakes 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 constitutionalityof the search. Cf. Ontario v. Quon, 560 U. S. ___, ___ (2010) (slip op., at 15). Given the importance of DNA inthe identification of police records pertaining to arresteesand the need to refine and confirm that identity for itsimportant bearing on the decision to continue release on bail or to impose of new conditions, DNA serves an essential purpose despite the existence of delays such as theone that occurred in this case. Even so, the delay inprocessing DNA from arrestees is being reduced to a substantial degree by rapid technical advances. See, e.g., Attorney General DeWine Announces Significant Drop in DNA Turnaround Time (Jan. 4, 2013) (DNA processing timereduced from 125 days in 2010 to 20 days in 2012), online athttp://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 yearor 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 arrestees 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 reasonableness of this minimally invasive search of a person detained for a serious crime should take account of these technical advances. Just as fingerprinting was constitutional 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 23 Cite as: 569 U. S. ____ (2013) improve its speed and therefore its effectiveness. And, as noted above, actual release of a serious offender as a routine matter takes weeks or months in any event. By identifying 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, theycan also prevent suspicion against or prosecution of the innocent. In sum, there can be little reason to question “the legitimate interest of the government in knowing for an absolute certainty the identity of the person arrested, inknowing 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 “administrative steps incident to arrest—i.e., . . . book[ing], photograph[ing], and fingerprint[ing].” McLaughlin, 500 U. S., at 58. DNA identification of arrestees, of the typeapproved by the Maryland statute here at issue, is “nomore than an extension of methods of identification longused in dealing with persons under arrest.” Kelly, 55 F. 2d, at 69. In the balance of reasonableness required bythe Fourth Amendment, therefore, the Court must give great weight both to the significant government interest atstake in the identification of arrestees and to the unmatched potential of DNA identification to serve thatinterest. V A By comparison to this substantial government interestand the unique effectiveness of DNA identification, the intrusion of a cheek swab to obtain a DNA sample is a 24 MARYLAND v. KING minimal one. True, a significant government interest doesnot alone suffice to justify a search. The government interest must outweigh the degree to which the search invades an individual’s legitimate expectations of privacy.In considering those expectations in this case, however, the necessary predicate of a valid arrest for a seriousoffense is fundamental. “Although the underlying command of the Fourth Amendment is always that searchesand 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 legitimacy 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 regard 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 covered employees are diminished by reason of their participation 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 certainwork-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 intopolice 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, 25 Cite as: 569 U. S. ____ (2013) 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 “requir[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 differsfrom the sort of programmatic searches of either the publicat 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 expectations of privacy. So the Court has insisted on some purpose other than “to detect evidence of ordinary criminal wrongdoing” to justify these searches in the absence ofindividualized suspicion. Edmond, supra, at 38. Once an individual has been arrested on probable cause for a dangerous offense that may require detention before trial,however, his or her expectations of privacy and freedomfrom police scrutiny are reduced. DNA identification like that at issue here thus does not require consideration ofany unique needs that would be required to justify searching the average citizen. The special needs cases, thoughin full accord with the result reached here, do not have a direct bearing on the issues presented in this case, because unlike the search of a citizen who has not been suspected of a wrong, a detainee has a reduced expectationof privacy. The reasonableness inquiry here considers two other circumstances in which the Court has held that particularized suspicion is not categorically required: “diminished expectations of privacy [and] minimal intrusions.” McArthur, 531 U. S., at 330. This is not to suggest that any 26 MARYLAND v. KING 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 enforcementrelated concerns to determine if the intrusion was reasonable,” 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 involves 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 analyzing the magnitude of the intrusion . . . is the extent to which the procedure may 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 evidence of a fact committed,” or to search a person “whose offence is not particularly described and supported byevidence,” “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. Declaration of Rights §XXIII (1776), in id., at 280, 282. In the ratification debates, Antifederalists sarcasticallypredicted that the general, suspicionless warrant would beamong the Constitution’s “blessings.” Blessings of the NewGovernment, Independent Gazetteer, Oct. 6, 1787, in 13Documentary History of the Ratification of the Constitution 345 (J. Kaminski & G. Saladino eds. 1981). “Brutus” of New York asked why the Federal Constitution contained no provision like Maryland’s, Brutus II, N. Y. Journal, Nov. 1, 1787, in id., at 524, and Patrick Henry warnedthat the new Federal Constitution would expose the citizenry 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 unreasonable searches and seizures, shall not be violated bywarrants issued without probable cause . . . or not particularly describing the places to be searched.” 1 Annals of Cong. 434–435 (1789). As ratified, the Fourth Amendment’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-3 Cite as: 569 U. S. ____ (2013) SCALIA, J., dissenting ally necessary, the Fourth Amendment’s general prohibition of “unreasonable” searches imports the same requirementof individualized suspicion. See Chandler v. Miller, 520 U. S. 305, 308 (1997). Although there is a “closely guarded category of constitutionally permissible suspicionless searches,” id., at 309, that has never included searches designed to serve “thenormal need for law enforcement,” Skinner v. Railway Labor Executives’ Assn., 489 U. S. 602, 619 (1989) (internal 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 needto “regulat[e] the conduct of railroad employees to ensuresafety” is distinct from “normal law enforcement.” Skinner, 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) thatthere 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 criminalwrongdoing.” Indianapolis v. Edmond, 531 U. S. 32, 38 (2000). That limitation is crucial. It is only when a governmental 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 anotherway, both the legitimacy of the Court’s method and the correctness of its outcome hinge entirely on the truth of asingle proposition: that the primary purpose of these DNA 4 MARYLAND v. KING SCALIA, J., dissenting searches is something other than simply discovering evidence of criminal wrongdoing. As I detail below, that proposition is wrong. B The Court alludes at several points to the fact that King was an arrestee, and arrestees maybe 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 expectations of privacy of the arrestee.” Ante, at 26. But whyare the “privacy-related concerns” not also “weighty” when an intrusion into the body is at stake? (The FourthAmendment lists “persons” first among the entities protected against unreasonable searches and seizures.) And could the police engage, without any suspicion of wrongdoing, in a “brief and . . . minimal” intrusion into the home of an arrestee—perhaps just peeking around the curtilage abit? See ante, at 26. Obviously not.At any rate, all this discussion is beside the point. No 5 Cite as: 569 U. S. ____ (2013) matter the degree of invasiveness, suspicionless searches are never allowed if their principal end is ordinary crimesolving. A search incident to arrest either serves other ends (such as officer safety, in a search for weapons) oris not suspicionless (as when there is reason to believe the arrestee possesses evidence relevant to the crime ofarrest). Sensing (correctly) that it needs more, the Court elaborates 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 committedcrimes 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’spast conduct is essential to an assessment of the danger he poses.” Ante, at 15. If identifying someone meansfinding out what unsolved crimes he has committed, then identification is indistinguishable from the ordinary lawenforcement aims that have never been thought to justifya suspicionless search. Searching every lawfully stopped car, for example, might turn up information about unsolved crimes the driver had committed, but no one would say that such a search was aimed at “identifying” him, and 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 theidentification rationale is strangely silent on the actualworkings 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 unrelated to the case before us. That same day, April 10, thepolice 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 toknow “who [had] been arrested,” ante, at 11, one might guess that King’s DNA was swiftly processed and 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 already be known. 2 If one wanted to identify someone in custody using his DNA, the logical thing to do would be tocompare 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 areby 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—hisidentity was already known. (The docket for the originalcriminal charges lists his full name, his race, his sex, hisheight, 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 attacker, but nothing else. King was not identified by his association with the sample; rather, the sample was identifiedby its association with King. The Court effectively destroys its own “identification” theory when it acknowledgesthat the object of this search was “to see what [was] already known about [King].” King was who he was, and volumes of his biography could not make him any more orany less King. No minimally competent speaker of English 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 todo with identifying them is confirmed not just by actualpractice (which the Court ignores) but by the enablingstatute itself (which the Court also ignores). The Maryland 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 tolearn that the Court’s imagined purpose is not among them. Instead, the law provides that DNA samples are collectedand tested, as a matter of Maryland law, “as part of anofficial investigation into a crime.” §2–505(a)(2). (Or, asour suspicionless-search cases would put it: for ordinary law-enforcement purposes.) That is certainly how everyone has always understood the Maryland Act until today.The Governor of Maryland, in commenting on our decision to hear this case, said that he was glad, because “[a]llowing law enforcement to collect DNA samples . . . isabsolutely critical to our efforts to continue driving down crime,” and “bolsters our efforts to resolve open investigations and bring them to a resolution.” Marbella, SupremeCourt Will Review Md. DNA Law, Baltimore Sun, Nov. 10, 11 Cite as: 569 U. S. ____ (2013) SCALIA, J., dissenting 2012, pp. 1, 14. The attorney general of Maryland remarked that he “look[ed] forward to the opportunity todefend this important crime-fighting tool,” and praised the DNA database for helping to “bring to justice violentperpetrators.” Ibid. Even this Court’s order staying the decision below states that the statute “provides a valuable tool for investigating unsolved crimes and thereby helpingto 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 identification: “to help identify human remains,” §2–505(a)(3) (emphasis 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 crimeto do so. §2–505(b)(2). The Maryland regulations implementing the Act confirm what is now monotonously obvious: These DNA searches have nothing to do with identification. For example, if someone is arrested and law enforcement determines that “a convicted offender Statewide DNA Data Base sample already exists” for that arrestee, “the agencyis 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 samplecollected, 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, thereis no sense in going to the expense of taking a new sample. 12 MARYLAND v. KING