NOTICE: This opinion is subject to
formal revision before publication in the preliminary print of the
United States Reports. Readers are requested to notify the Reporter
of Decisions, Supreme Court of the United States, Washington,
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															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 gun broke 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 his cheeks. 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.

															I

															When King was arrested on April 10, 2009, for
menac-ing 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, on August 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.” 425 Md. 550, 561, 42 A.3d 549, 556 (2012). In reach-
ing that conclusion the Maryland Court relied on the deci-sions of
various other courts that have concluded that DNA identification of
arrestees is impermissible. See, e.g., People v. Buza , 129 Cal. Rptr. 3d 753 (App. 2011) (offi-cially
depublished); Mario W. v. Kaipio , 228 Ariz. 207, 265
P.3d 389 (App. 2011).

															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, 568 U. S. ___ (2012), to address the question.
King is the respondent here.

															II

															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, see J. Butler, Fundamentals of Forensic DNA Typing 5
(2009) (hereinafter Butler), 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 the criminal
justice system and police investigative practices.” District
Attorney’s Office for Third Judicial Dist. v. Osborne ,
557 U.S. 52, 55 (2009).

															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 to identify 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 are known as “alleles,” id. , at
25; and multiple alleles are analyzed in order to ensure that a DNA
profile matches only 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.” Osborne , supra , at 62.

															The Act authorizes Maryland law enforcement
author-ities 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.”
§2–504(d)(2)(i). 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.” §2–511(a)(1).

															The Act also limits the information added to a
DNA database and how it may be used. Specifically, “[o]nly DNA
records that directly relate to the identification of individuals
shall be collected and stored.” §2–505(b)(1). 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 indi-viduals as specified in this subtitle.”
§2–512(c). Tests for familial matches are also prohibited. See
§2–506(d) (“A person may not perform a search of the statewide DNA
data base for the purpose of identification of an offender in
connection with a crime for which the offender may be a biological
relative of the individual from whom the DNA sample was acquired”).
The officers involved in taking and analyzing respondent’s DNA
sample complied with the Act in all respects.

															Respondent’s DNA was collected in this case
using a common procedure known as a “buccal swab.” “Buccal cell
collection involves wiping a small piece of filter paper or a
cotton swab similar to a Q-tip against the inside cheek of an
individual’s mouth to collect some skin cells.” Butler 86. The
procedure is quick and painless. The swab touches inside an
arrestee’s mouth, but it requires no “surgical intrusio[n] beneath
the skin,” Winston v. Lee , 470
U.S. 753 , 760 (1985), and it poses no “threa[t] to the health
or safety” of arrestees, id., at 763.

															B

															Respondent’s identification as the rapist
resulted in part through the operation of a national project to
standardize collection and storage of DNA profiles. Authorized by
Congress and supervised by the Federal Bureau of Investigation, the
Combined DNA Index System (CODIS) connects DNA laboratories at the
local, state, and national level. Since its authorization in 1994,
the CODIS system has grown to include all 50 States and a number of
federal agencies. CODIS collects DNA profiles provided by local
laboratories taken from arrestees, convicted offenders, and
forensic evidence found at crime scenes. To participate in CODIS, a
local laboratory must sign a memorandum of understanding agreeing
to adhere to quality standards and submit to audits to evaluate
compliance with the federal standards for scientifically rigorous
DNA testing. Butler 270.

															One of the most significant aspects of CODIS is
the standardization of the points of comparison in DNA analysis.
The CODIS database is based on 13 loci at which the STR alleles are
noted and compared. These loci make possible extreme accuracy in
matching individual samples, with a “random match probability of
approximately 1 in 100 trillion (assuming unrelated individuals).” Ibid . The CODIS loci are from the non-protein coding junk
regions of DNA, and “are not known to have any association with a
genetic disease or any other genetic predisposition. Thus, the
information in the database is only useful for human identity
testing.” Id., at 279. STR information is recorded only as a
“string of numbers”; and the DNA identification is accompanied only
by information denoting the laboratory and the analyst responsible
for the submission. Id., at 270. In short, CODIS sets
uniform national standards for DNA matching and then facilitates
connections between local law enforcement agencies who can share
more specific information about matched STR profiles.

															All 50 States require the collection of DNA from
felony convicts, and respondent does not dispute the validity of
that practice. See Brief for Respondent 48. Twenty-eight States and
the Federal Government have adopted laws similar to the Maryland
Act authorizing the collection of DNA from some or all arrestees.
See Brief for State of California et al. as Amici
Curiae 4, n. 1 (States Brief) (collecting state statutes).
Although those statutes vary in their particulars, such as what
charges require a DNA sample, their similarity means that this case
implicates more than the specific Maryland law. At issue is a
standard, expanding technology already in widespread use throughout
the Nation.

															III

															A

															Although the DNA swab procedure used here
presents a question the Court has not yet addressed, the framework
for deciding the issue is well established. The Fourth Amendment,
binding on the States by the Fourteenth Amendment, provides that
“[t]he right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and seizures,
shall not be violated.” It can be agreed that using a buccal swab
on the inner tissues of a person’s cheek in order to obtain DNA
samples is a search. Virtually any “intrusio[n] into the human
body,” Schmerber v. California , 384 U.S.
757 , 770 (1966), will work an invasion of “ ‘cherished
personal security’ that is subject to constitutional scrutiny,” Cupp v. Murphy , 412 U.S.
291 , 295 (1973) (quoting Terry v. Ohio , 392 U.S.
1 , 24–25 (1968)). The Court has applied the Fourth Amendment to
police efforts to draw blood, see Schmerber , supra ; Missouri v. McNeely , 569 U. S. ___ (2013),
scraping an arrestee’s fingernails to obtain trace evidence, see Cupp , supra , and even to “a breathalyzer test, which
generally requires the production of alveolar or ‘deep lung’ breath
for chemical analysis,” Skinner v. Railway Labor
Executives’ Assn. , 489 U.S.
602 , 616 (1989).

															A buccal swab is a far more gentle process than
a venipuncture to draw blood. It involves but a light touch on the
inside of the cheek; and although it can be deemed a search within
the body of the arrestee, it requires no “surgical intrusions
beneath the skin.” Winston , 470 U. S., at 760. The fact
than an intrusion is negligible is of central relevance to
determining reasonableness, although it is still a search as the
law defines that term.

															B

															To say that the Fourth Amendment applies here
is the beginning point, not the end of the analysis. “[T]he Fourth
Amendment’s proper function is to constrain, not against all
intrusions as such, but against intrusions which are not justified
in the circumstances, or which are made in an improper manner.” Schmerber , supra , at 768. “As the text of the Fourth
Amendment indicates, the ultimate measure of the constitutionality
of a governmental search is ‘reasonableness.’ ” Vernonia
School Dist. 47J v. Acton , 515 U.S.
646 , 652 (1995). In giving content to the inquiry whether an
intrusion is reasonable, the Court has preferred “some quantum of
individualized suspicion . . . [as] a prerequisite to a
constitutional search or seizure. But the Fourth Amendment imposes
no irreducible requirement of such suspicion.” United States v. Martinez-Fuerte , 428 U.S.
543 , 560–561 (1976) (citation and footnote omitted).

															In some circumstances, such as “[w]hen faced
with special law enforcement needs, diminished expectations of
privacy, minimal intrusions, or the like, the Court has found that
certain general, or individual, circumstances may render a
warrantless search or seizure reasonable.” Illinois v. McArthur , 531 U.S.
32 6, 330 (2001). Those circumstances diminish the need for a
warrant, either because “the public interest is such that neither a
warrant nor probable cause is required,” Maryland v. Buie , 494 U.S.
325 , 331 (1990), or because an individual is already on notice,
for instance because of his employment, see Skinner , supra , or the conditions of his release from government
custody, see Samson v. California , 547 U.S.
843 (2006), that some reasonable police intrusion on his
pri-vacy is to be expected. The need for a warrant is perhaps least
when the search involves no discretion that could properly be
limited by the “interpo[lation of] a neutral magistrate between the
citizen and the law enforcement officer.” Treasury Employees v. Von Raab , 489 U.S.
656 , 667 (1989).

															The instant case can be addressed with this
background. The Maryland DNA Collection Act provides that, in order
to obtain a DNA sample, all arrestees charged with serious crimes
must furnish the sample on a buccal swab applied, as noted, to the
inside of the cheeks. The arrestee is already in valid police
custody for a serious offense supported by probable cause. The DNA
collection is not subject to the judgment of officers whose
perspective might be “colored by their primary involvement in ‘the
often competitive enterprise of ferreting out crime.’ ” Terry , supra , at 12 (quoting Johnson v. United States , 333 U.S.
10 , 14 (1948)). As noted by this Court in a different but still
instructive context involving blood testing, “[b]oth the
circumstances justifying toxicological testing and the permissible
limits of such intrusions are defined nar- rowly and specifically
in the regulations that authorize them . . . .
Indeed, in light of the standardized nature of the tests and the
minimal discretion vested in those charged with administering the
program, there are virtually no facts for a neutral magistrate to
evaluate.” Skinner , supra , at 622. Here, the search
effected by the buccal swab of respondent falls within the category
of cases this Court has analyzed by reference to the proposition
that the “touchstone of the Fourth Amendment is reasonableness, not
individualized suspicion.” Samson , supra , at 855,
n. 4.

															Even if a warrant is not required, a search is
not beyond Fourth Amendment scrutiny; for it must be reasonable in
its scope and manner of execution. Urgent government interests are
not a license for indiscriminate police behavior. To say that no
warrant is required is merely to acknowledge that “rather than
employing a per se rule of unreasonableness, we balance the
privacy-related and law enforcement-related concerns to determine
if the intrusion was reasonable.” McArthur , supra , at
331. This application of “traditional standards of reasonableness”
requires a court to weigh “the promotion of legitimate governmen-
tal interests” against “the degree to which [the search] intrudes
upon an individual’s privacy.” Wyoming v. Houghton , 526 U.S.
295 , 300 (1999). An assessment of reasonableness to determine
the lawfulness of requiring this class of arrestees to provide a
DNA sample is central to the instant case.

															IV

															A

															The legitimate government interest served by
the Maryland DNA Collection Act is one that is well established:
the need for law enforcement officers in a safe and accurate way to
process and identify the 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 of detention to take the administrative steps
incident to arrest.” Gerstein v. Pugh , 420 U.S.
103 , 113–114 (1975). 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, Mapp v. Ohio , 367 U.S.
643 (1961). “The validity of the search of a person incident to
a lawful arrest has been regarded as settled from its first
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 ar-rested
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 sta-tion 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 search of 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 the accused 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 from the normal channels of society and hold
him in legal custody, DNA identification plays a critical role in
serving those interests.

															First, “[i]n every criminal case, it is known
and must be known who has been arrested and who is being tried.” Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt
Cty ., 542 U.S.
177 , 191 (2004). An individual’s identity is more than just his
name or Social Security number, and the government’s interest in
identification goes beyond ensuring that the proper name is typed
on the indictment. Identity has never been considered limited to
the name on the arrestee’s birth certificate. In fact, a name is of
little value compared to the real interest in identification at
stake when an individual is brought into custody. “It is a well
recognized aspect of criminal conduct that the per-petrator 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.” Florence v. Board of
Chosen Freeholders of County of Burlington , 566 U. S. ___,
___ (2012) (slip op., at 16).

															A suspect’s criminal history is a critical part
of his identity that officers should know when processing him for
detention. 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
license plate. Police stopped serial killer Joel Rifkin for the
same reason. One of the terrorists involved in the September 11
attacks was stopped and ticketed for speeding just two days before
hijacking Flight 93.” Id., at ___ (slip op., at 14)
(citations omitted). Police already seek this crucial identifying
information. They use routine and accepted means 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
criminals and unsolved crimes. In this respect the only difference
between DNA analysis and the accepted use of fingerprint databases
is the unparalleled accuracy DNA provides.

															The task of identification necessarily entails
searching public 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 not themselves evidence of any
particular crime, in the way that a drug test can by itself be
evidence of illegal narcotics use. A DNA profile is useful to the
police because it gives them a form of identification to search the
records already in their valid possession. In this respect the use
of DNA for identification is no different than matching an
arrestee’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 public persona, as reflected in records of his or her
actions that are available to the police. Those records may be
linked to the arrestee by a variety of relevant forms of
identification, including name, alias, date and time of previous
convictions and the name then used, photograph, Social Security
number, or CODIS profile. These data, found in official records,
are checked as a routine matter to produce a 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
responsibility for 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 de-taining
suspects and detaining the property of any felon. For these
purposes officers must know the type of person whom they are
detaining, and DNA allows them to make critical choices about how
to proceed.

															“Knowledge of identity may inform an
officer that a suspect 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 al- low the police to
concentrate their efforts elsewhere. Identity may prove
particularly important in [certain cases, such as] where the police
are investigating what 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
criminal prosecution, “the Government has a substantial interest in
ensuring 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 to flee the instant charges, lest continued contact with
the criminal justice system expose one or more other serious
offenses. For example, a defendant who had committed a prior 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 back to the interest in safety; for a detainee who absconds
from custody presents a risk to law enforcement officers, other
detainees, victims of previous crimes, witnesses, and society at
large.

															Fourth, an arrestee’s past conduct is essential
to an assessment 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
crime provides critical information to the police and judicial
officials in making a determination of the arrestee’s future
dangerousness. This inquiry always has entailed some scrutiny
beyond the name on the defendant’s driver’s license. For example,
Maryland law requires a judge to take 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
res-idence 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.” Rule
4–216(f)(1)(G); see also 18 U. S. C. §3142 (2006 ed. and
Supp. V) (similar requirements).

															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 identified as violent through DNA
identification matching them to previous crimes but who later
committed additional crimes because such identification was not
used to detain them. See Denver’s Study on Preventable Crimes
(2009) (three examples), online at http://www.denverda.org/DNA_
Documents/Denver%27s%20Preventable%20Crimes%20 Study.pdf (all
Internet materials as visited May 31, 2013, and available in Clerk
of Court’s case file); Chi-cago’s Study on Preventable Crimes
(2005) (five exam- ples), online at
http://www.denverda.org/DNA_Documents/
Arrestee_Database/Chicago%20Preventable%20Crimes- Final.pdf;
Maryland Study on Preventable Crimes (2008) (three examples),
online at http://www.denverda.org/DNA_
Documents/MarylandDNAarresteestudy.pdf.

															Present capabilities make it possible to
complete a DNA identification that provides information essential
to determining whether a detained suspect can be released pending
trial. See, e.g., States Brief 18, n. 10 (“DNA
identification database samples have been processed in as few as
two days in California, although around 30 days has been 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 identity more 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 determining
what 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, ad-ditional
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 unknown
violent 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 determinations were reversed
after DNA identified the arrestee’s vio- lent history). Pretrial
release of a person charged with a dangerous crime is a most
serious responsibility. It is reason-able in all respects for the
State to use an accepted database to determine if an arrestee is
the object of suspicion in other serious crimes, suspicion that may
provide a strong incentive for the arrestee to escape and flee.

															Finally, in the interests of justice, the
identification of an arrestee as the perpetrator of some heinous
crime may have 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.” J. Dwyer, P. Neufeld, & B.
Scheck, Actual Innocence 245 (2000).

															Because proper processing of arrestees is so
important and has consequences for every stage of the criminal
process, the Court has recognized that the “governmen- tal
interests underlying a station-house search of the ar-restee’s
person and possessions may in some circumstances be even greater
than those supporting a search imme-diately 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
traditionally governing 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 by a search of the arrestee himself.
“[I]nspection of an arrestee’s personal property may assist the
police in ascertaining or verifying his identity.” Lafayette , supra , at 646. And though the Fifth
Amendment’s protection against self-incrimination is not, as a
general rule, governed by a reasonableness standard, the Court has
held that “questions . . . reasonably related to the
police’s administrative concerns . . . fall outside the
protections of Miranda [v. Arizona , 384 U.S.
436 (1966)] and the answers thereto need not be suppressed.” Pennsylvania v. Muniz , 496 U.S.
582 , 601–602 (1990).

															B

															DNA identification represents an important
advance in the techniques used by law enforcement to serve
le-gitimate police concerns for as long as there have been arrests,
concerns the courts have acknowledged and approved for more than a
century. Law enforcement agencies routinely have used scientific
advancements in their standard procedures for the identification of
arrestees. “Police had been using photography to capture the faces
of criminals almost since its invention.” S. Cole, Suspect
Identities 20 (2001). Courts did not dispute that practice,
concluding that a “sheriff in making an arrest for a felony on a
warrant has the right to exercise a discretion . . . ,
[if] he should deem it necessary to the safe-keeping of a prisoner,
and to prevent his escape, or to enable him the more readily to
retake the prisoner if he should escape, to take his photograph.” State ex rel. Bruns v. Clausmier , 154 Ind. 599,
601, 603, 57 N.E. 541, 542 (1900). By the time that it had become
“the daily practice of the police officers and detectives of crime
to use photographic pictures for the discovery and identification
of criminals,” the courts likewise had come to the conclusion that
“it would be [a] matter of regret to have its use unduly restricted
upon any fanciful theory or constitutional privilege.” Shaffer v. United States , 24 App. D. C. 417, 426
(1904).

															Beginning in 1887, some police adopted more
exacting means to identify arrestees, using the system of precise
physical measurements pioneered by the French anthropologist
Alphonse Bertillon. Bertillon identification consisted of 10
measurements of the arrestee’s body, along with a “scientific
analysis of the features of the face and an exact anatomical
localization of the various scars, marks, &c., of the body.”
Defense of the Bertillon System, N. Y. Times, Jan. 20, 1896,
p. 3. “[W]hen a prisoner was brought in, his photograph was taken
according to the Bertillon system, and his body measurements were
then made. The measurements were made . . . and noted
down on the back of a card or a blotter, and the photograph of the
prisoner was expected to be placed on the card. This card,
therefore, furnished both the likeness and description of the
prisoner, and was placed in the rogues’ gallery, and copies were
sent to various cities where similar records were kept.” People
ex rel. Jones v. Diehl , 53 App. Div. 645, 646, 65 N.Y.S.
801, 802 (1900). As in the present case, the point of taking this
information about each arrestee was not limited to verifying that
the proper name was on the indictment. These procedures were used
to “facilitate the recapture of escaped prisoners,” to aid “the
investigation of their past records and personal history,” and “to
preserve the means of identification for . . . fu- ture
supervision after discharge.” Hodgeman v. Olsen , 86
Wash. 615, 619, 150 P. 1122, 1124 (1915); see also McGovern v. Van Riper , 137 N. J. Eq. 24, 33–34, 43 A.2d 514, 519
(Ch. 1945) (“[C]riminal identification is said to have two main
purposes: (1) The identification of the accused as the person who
committed the crime for which he is being held; and, (2) the
identification of the accused as the same person who has been
previously charged with, or convicted of, other offenses against
the criminal law”).

															Perhaps the most direct historical analogue to
the DNA technology used to identify respondent is the familiar
practice of fingerprinting arrestees. From the advent of this
technique, courts had no trouble determining that fingerprinting
was a natural part of “the administrative steps incident to
arrest.” County of Riverside v. McLaughlin , 500 U.S.
44 , 58 (1991). In the seminal case of United States v. Kelly , 55 F.2d 67 (CA2 1932), Judge Augustus Hand wrote that
routine fingerprinting did not violate the Fourth Amendment
precisely because it fit within the accepted means of processing an
arrestee into custody:

															“Finger printing seems to be no more than
an exten-sion of methods of identification long used in dealing
with persons under arrest for real or supposed vio-lations of the
criminal laws. It is known to be a very certain means devised by
modern science to reach the desired end, and has become especially
important in a time when increased population and vast aggregations
of people in urban centers have rendered the notoriety of the
individual in the community no longer a ready means of
identification.

															.     .     .     .     .

															“We find no ground in reason or authority
for interfering with a method of identifying persons charged with
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 to fingerprinting in many ways, so much so that to insist
on fingerprints as the norm would make little sense to either the
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 of fingerprints 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 was
largely a manual, labor-intensive process, taking weeks or months
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 this
technology that rendered fingerprint analysis constitutional in a
single moment. The question of how long it takes 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 constitutionality of the search. Cf. Ontario v. Quon , 560 U. S. ___, ___ (2010) (slip
op., at 15). Given the importance of DNA in the identification of
police records pertaining to arrestees and the need to refine and
confirm that identity for its important 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 the
one that occurred in this case. Even so, the delay in processing
DNA from arrestees is being reduced to a substantial degree by
rapid technical advances. See, e.g., At-torney General
DeWine Announces Significant Drop in DNA Turnaround Time (Jan. 4,
2013) (DNA processing time reduced from 125 days in 2010 to 20 days
in 2012), online at
http://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 year or 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 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, they can 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, in knowing
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 type approved by the
Maryland statute here at issue, is “no more than an extension of
methods of identification long used in dealing with persons under
arrest.” Kelly , 55 F. 2d, at 69. In the balance
of reasonableness required by the Fourth Amendment, therefore, the
Court must give great weight both to the significant government
interest at stake in the identification of arrestees and to the
unmatched potential of DNA identification to serve that
interest.

															V

															A

															By comparison to this substantial government
interest and the unique effectiveness of DNA identification, the
intrusion of a cheek swab to obtain a DNA sample is a minimal one.
True, a significant government interest does not alone suffice to
justify a search. The government interest must outweigh the degree
to which the search in-vades an individual’s legitimate
expectations of privacy. In considering those expectations in this
case, however, the necessary predicate of a valid arrest for a
serious offense is fundamental. “Although the underlying command of
the Fourth Amendment is always that searches and 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 participa-tion 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 certain work-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 into police 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 , 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 differs from the sort of programmatic searches of either the
public at 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 of individualized 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 freedom from police scrutiny are reduced. DNA identification
like that at issue here thus does not require consideration of any
unique needs that would be required to justify searching the
average citizen. The special needs cases, though in 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 expectation of 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 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 enforcement-related concerns to determine if the intrusion was
rea-sonable,” 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 threaten the safety or health of the individual,” Winston , supra , at 761, and nothing suggests that a
buccal swab poses any physical danger whatsoever. A brief intrusion
of an arrestee’s person is subject to the Fourth Amendment, but a
swab of this nature does not increase the indignity already
attendant to normal incidents of arrest.

															B

															In addition the processing of respondent’s DNA
sam-ple’s 13 CODIS loci did not intrude on respondent’s privacy in
a way that would make his DNA identification unconstitutional.

															First, as already noted, the CODIS loci come
from noncoding parts of the DNA that do not reveal the genetic
traits of the arrestee. While science can always progress further,
and those progressions may have Fourth Amendment consequences,
alleles at the CODIS loci “are not at present revealing information
beyond identification.” Katsanis & Wagner, Characterization of
the Standard and Recommended CODIS Markers , 58 J. Forensic
Sci. S169, S171 (2013). The argument that the testing at issue in
this case reveals any private medical information at all is open to
dispute.

															And even if non-coding alleles could provide
some information, they are not in fact tested for that end. It is
undisputed that law enforcement officers analyze DNA for the sole
purpose of generating a unique identifying number against which
future samples may be matched. This parallels a similar safeguard
based on actual practice in the school drug-testing context, where
the Court deemed it “significant that the tests at issue here look
only for drugs, and not for whether the student is, for example,
epileptic, pregnant, or diabetic.” Vernonia School Dist.
47J , 515 U. S., at 658. If in the future police analyze
samples to determine, for instance, an arrestee’s predisposition
for a particular disease or other hereditary factors not relevant
to identity, that case would present additional privacy concerns
not present here.

															Finally, the Act provides statutory protections
that guard against further invasion of privacy. As noted above, the
Act requires that “[o]nly DNA records that directly relate to the
identification of individuals shall be collected and stored.” Md.
Pub. Saf. Code Ann . §2–505(b)(1). 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.”
§2–512(c). This Court has noted often that “a ‘statutory or
regulatory duty to avoid unwarranted disclosures’ generally allays
. . . privacy concerns.” NASA v. Nelson ,
562 U. S. ___, ___ (2011) (slip op., at 20) (quoting Whalen v. Roe , 429 U.S.
589 , 605 (1977)). The Court need not speculate about the risks
posed “by a system that did not contain comparable security
provisions.” Id., at 606. In light of the scientific and
statutory safeguards, once respondent’s DNA was lawfully collected
the STR analysis of respondent’s DNA pursuant to CODIS procedures
did not amount to a significant invasion of privacy that would
render the DNA identification impermissible under the Fourth
Amendment.

															*  *  *

															In light of the context of a valid arrest
supported by probable cause respondent’s expectations of privacy
were not offended by the minor intrusion of a brief swab of his
cheeks. By contrast, that same context of arrest gives rise to
significant state interests in identifying respondent not only so
that the proper name can be attached to his charges but also so
that the criminal justice system can make informed decisions
concerning pretrial custody. Upon these considerations the Court
concludes that DNA identification of arrestees is a reasonable
search that can be considered part of a routine booking procedure.
When officers make an arrest supported by probable cause to hold
for a serious offense and they bring the suspect to the station to
be detained in custody, taking and analyzing a cheek swab of the
arrestee’s DNA is, like fingerprinting and photographing, a
legitimate police booking procedure that is reasonable under the
Fourth Amendment.

															The judgment of the Court of Appeals of Maryland
is reversed.

															It is so ordered. 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 Scalia, with whom Justice Ginsburg,
Justice Sotomayor, and Justice Kagan join, dissenting.

															The Fourth Amendment forbids searching a person
for evidence of a crime when there is no basis for believing the
person is guilty of the crime or is in possession of incriminating
evidence. That prohibition is categorical and without exception; it
lies at the very heart of the Fourth Amendment. Whenever this Court
has allowed a suspicionless search, it has insisted upon a
justifying motive apart from the investigation of crime.

															It is obvious that no such noninvestigative
motive exists in this case. The Court’s assertion that DNA is being
taken, not to solve crimes, but to identify those in the
State’s custody, taxes the credulity of the credulous. And the
Court’s comparison of Maryland’s DNA searches to other techniques,
such as fingerprinting, can seem apt only to those who know no more
than today’s opinion has chosen to tell them about how those DNA
searches actually work.

															I

															A

															At the time of the Founding, Americans
despised the British use of so-called “general warrants”—warrants
not grounded upon a sworn oath of a specific infraction by a
particular individual, and thus not limited in scope and
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 by evidence,” “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
sarcastically predicted that the general, suspicionless warrant
would be among the Constitution’s “blessings.” Blessings of the New
Government, Independent Gazetteer, Oct. 6, 1787, in 13 Documentary
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 warned that 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 by
warrants 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- ally necessary, the Fourth Amendment’s
general prohibition of “unreasonable” searches imports the same
requirement of 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 “the
normal 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 need to “regulat[e] the conduct of railroad employees
to ensure safety” 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) that there 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 criminal
wrongdoing.” 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 another way, both the
legitimacy of the Court’s method and the correctness of its outcome
hinge entirely on the truth of a single proposition: that the
primary purpose of these DNA 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 (see ante, at 11, 25) to the fact that King was an arrestee, and
arrestees may be 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 why are the “privacy-related concerns” not also
“weighty” when an intrusion into the body is at stake? (The
Fourth Amendment 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 a bit? See ante, at 26. Obviously not.

															At any rate, all this discussion is beside the
point. No matter the degree of invasiveness, suspicionless searches
are never allowed if their principal end is ordinary
crime-solving. A search incident to arrest either serves other ends
(such as officer safety, in a search for weapons) or is not
suspicionless (as when there is reason to believe the arrestee
possesses evidence relevant to the crime of arrest).

															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
committed crimes 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’s past
conduct is essential to an assessment of the danger he poses.” Ante, at 15. If identifying someone means finding out what
unsolved crimes he has committed, then identification is
indistinguishable from the ordinary law-enforcement aims that have
never been thought to justify a 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 the identification rationale is strangely silent on the
actual workings 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, the
police 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 to know “who [had] been
arrested,” ante, at 11, one might guess that King’s DNA was
swiftly processed and his identity thereby confirmed—perhaps
against some master database of known DNA profiles, as is done for
fingerprints. After all, was not the suspicionless search here
crucial to avoid “inordinate risks for facility staff” or to
“existing detainee population,” ante, at 14? Surely,
then— surely —the State of Maryland got cracking on those
grave risks immediately, by rushing to identify King with his DNA
as soon as possible.

															Nothing could be further from the truth.
Maryland officials did not even begin the process of testing King’s
DNA that day. Or, actually, the next day. Or the day after that.
And that was for a simple reason: Maryland law forbids them to do
so. A “DNA sample collected from an individual charged with a crime
. . . may not be tested or placed in the statewide
DNA data base system prior to the first scheduled arraignment
date.” Md. Pub. Saf. Code Ann. §2–504(d)(1) (Lexis 2011) (emphasis
added). And King’s first appearance in court was not until three
days after his arrest. (I suspect, though, that they did not wait
three days to ask his name or take his fingerprints.)

															This places in a rather different light the
Court’s solemn declaration that the search here was necessary so
that King could be identified at “every stage of the criminal
process.” Ante, at 18. I hope that the Maryland officials
who read the Court’s opinion do not take it seriously. Acting on
the Court’s misperception of Maryland law could lead to jail time.
See Md. Pub. Saf. Code Ann. §2–512(c)–(e) (punishing by up to five
years’ imprisonment anyone who obtains or tests DNA information
except as provided by statute). Does the Court really believe that
Maryland did not know whom it was arraigning? The Court’s response
is to imagine that release on bail could take so long that the DNA
results are returned in time, or perhaps that bail could be revoked
if the DNA test turned up incriminating information. Ante, at 16–17. That is no answer at all. If the purpose of this Act is
to assess “whether [King] should be released on bail,” ante, at 15, why would it possibly forbid the DNA testing process
to begin until King was arraigned? Why would Maryland resign
itself to simply hoping that the bail decision will drag out long
enough that the “identification” can succeed before the arrestee is
released? The truth, known to Maryland and increasingly to the
reader: this search had nothing to do with establishing King’s
identity.

															It gets worse. King’s DNA sample was not
received by the Maryland State Police’s Forensic Sciences Division
until April 23, 2009—two weeks after his arrest. It sat in that
office, ripening in a storage area, until the custodians got around
to mailing it to a lab for testing on June 25, 2009—two months
after it was received, and nearly three since King’s arrest.
After it was mailed, the data from the lab tests were not available
for several more weeks, until July 13, 2009, which is when the test
results were entered into Maryland’s DNA database, together with
information identifying the person from whom the sample was
taken . Meanwhile, bail had been set, King had engaged in
discovery, and he had requested a speedy trial—presumably not a
trial of John Doe. It was not until August 4, 2009—four months
after King’s arrest—that the forwarded sample transmitted
( without identifying information) from the Maryland DNA
database to the Federal Bureau of Investigation’s national database
was matched with a sample taken from the scene of an unrelated
crime years earlier.

															A more specific description of exactly what
happened at this point illustrates why, by definition, King could
not have been identified by this match. The FBI’s DNA
database (known as CODIS) consists of two distinct collections.
FBI, CODIS and NDIS Fact Sheet, http://
www.fbi.gov/about-us/lab/codis/codis-and-ndis-fact-sheet (all
Internet materials as visited May 31, 2013, and available in Clerk
of Court’s case file). One of them, the one to which King’s DNA was
submitted, consists of DNA samples taken from known convicts or
arrestees. I will refer to this as the “Convict and Arrestee
Collection.” The other collection consists of samples taken from
crime scenes; I will refer to this as the “Unsolved Crimes
Collection.” The Convict and Arrestee Collection stores “no names
or other personal identifiers of the offenders, arrestees, or
detainees.” Ibid. Rather, it contains only the DNA profile
itself, the name of the agency that submitted it, the laboratory
personnel who analyzed it, and an identification number for the
specimen. Ibid. This is because the submitting state
laboratories are expected already to know the identities of
the convicts and arrestees from whom samples are taken. (And, of
course, they do.)

															Moreover, the CODIS system works by checking to
see whether any of the samples in the Unsolved Crimes Collection
match any of the samples in the Convict and Arrestee 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 to compare 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 are
by 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—his
identity was already known. (The docket for the original criminal
charges lists his full name, his race, his sex, his height, 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 identified by
its association with King. The Court effectively destroys its own
“identification” theory when it acknowledges that 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 or any 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 to do with identifying them is confirmed not just by actual
practice (which the Court ignores) but by the enabling statute
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 to learn
that the Court’s imagined purpose is not among them.

															Instead, the law provides that DNA samples are
collected and tested, as a matter of Maryland law, “as part of an
official investigation into a crime.” §2–505(a)(2). (Or, as our
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 . . . is absolutely critical to our efforts
to continue driving down crime,” and “bolsters our efforts to
resolve open investigations and bring them to a resolution.”
Marbella, Supreme Court Will Review Md . DNA Law, Baltimore
Sun, Nov. 10, 2012, pp. 1, 14. The attorney general of
Maryland remarked that he “look[ed] forward to the opportunity to
defend this important crime-fighting tool,” and praised the DNA
database for helping to “bring to justice violent perpetrators.” Ibid. Even this Court’s order staying the decision below
states that the statute “provides a valuable tool for investigating
unsolved crimes and thereby helping to 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 crime to 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 agency is 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 sample collected, 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, there is no sense in going to the expense of
taking a new sample. Maryland’s regulations further require that
the “individ- ual collecting a sample . . . verify the
identity of the individual from whom a sample is taken by name and,
if applicable, State identification (SID) number.” §05.01.04(K).
(But how?) And after the sample is taken, it continues to be
identified by the individual’s name, fingerprints, etc., see
§05.01.07(B)—rather than (as the Court believes) being used to
identify individuals. See §05.01.07(B)(2) (“Records and
specimen information shall be identified by . . .
[the] [n]ame of the donor” (emphasis added)).

															So, to review: DNA testing does not even begin
until after arraignment and bail decisions are already made. The
samples sit in storage for months, and take weeks to test. When
they are tested, they are checked against the Unsolved Crimes
Collection—rather than the Convict and Arrestee Collection, which
could be used to identify them. The Act forbids the Court’s purpose
(identification), but prescribes as its purpose what our
suspicionless-search cases forbid (“official investigation into a
crime”). Against all of that, it is safe to say that if the Court’s
identification theory is not wrong, there is no such thing as
error.

															II

															The Court also attempts to bolster its
identification theory with a series of inapposite analogies. See ante, at 18–23.

															Is not taking DNA samples the same, asks the
Court, as taking a person’s photograph? No—because that is not a
Fourth Amendment search at all. It does not involve a physical
intrusion onto the person, see Florida v. Jardines , 569 U.S.
1 , ___ (2013) (slip op., at 3), and we have never held that
merely taking a person’s photograph invades any recognized
“expectation of privacy,” see Katz v. United States , 389 U.S.
347 (1967). Thus, it is unsurprising that the cases the Court
cites as authorizing photo-taking do not even mention the Fourth
Amendment. See State ex rel. Bruns v. Clausmier ,
154 Ind. 599, 57 N.E. 541 (1900) (libel), Shaffer v. United States , 24 App. D. C. 417 (1904) ( Fifth
Amendment privilege against self-incrimination).

															But is not the practice of DNA searches, the
Court asks, the same as taking “Bertillon” measurements—noting an
arrestee’s height, shoe size, and so on, on the back of a
photograph? No, because that system was not, in the ordinary case,
used to solve unsolved crimes. It is possible, I suppose, to
imagine situations in which such measurements might be useful to
generate leads. (If witnesses described a very tall burglar, all
the “tall man” cards could then be pulled.) But the obvious primary
purpose of such measurements, as the Court’s description of them
makes clear, was to verify that, for example, the person arrested
today is the same person that was arrested a year ago. Which is to
say, Bertillon measurements were actually used as a system
of identification, and drew their primary usefulness from that
task.[ 3 ]

															It is on the fingerprinting of arrestees,
however, that the Court relies most heavily. Ante, at 20–23.
The Court does not actually say whether it believes that taking a
person’s fingerprints is a Fourth Amendment search, and our cases
provide no ready answer to that question. Even assuming so,
however, law enforcement’s post-arrest use of fingerprints could
not be more different from its post-arrest use of DNA. Fingerprints
of arrestees are taken primarily to identify them (though that
process sometimes solves

															crimes); the DNA of arrestees is taken to solve
crimes (and nothing else). Contrast CODIS, the FBI’s nationwide DNA
database, with IAFIS, the FBI’s Integrated Automated Fingerprint
Identification System. See FBI, Integrated Automated Fingerprint
Identification System,
http://www.fbi.gov/about-us/cjis/fingerprints_biometrics/iafis/iafis
(hereinafter IAFIS ).

															The Court asserts that the taking of
fingerprints was “constitutional for generations prior to the
introduction” of the FBI’s rapid computer-matching system. Ante, at 22. This bold statement is bereft of citation to
authority because there is none for it. The “great expansion in
fingerprinting came before the modern era of Fourth Amendment
jurisprudence,” and so we were never asked to decide the legitimacy
of the practice. United States v. Kincade , 379 F.3d 813 , 874 (CA9 2004) (Kozinski, J., dissenting). As
fingerprint databases expanded from convicted criminals, to
arrestees, to civil servants, to immigrants, to everyone with a
driver’s license, Americans simply “became accustomed to having our
fingerprints on file in some government database.” Ibid. But
it is wrong to suggest that this was uncontroversial at the time,
or that this Court blessed universal fingerprinting for
“generations” before it was possible to use it effectively for
identification.

															The Court also assures us that “the delay in
processing DNA from arrestees is being reduced to a substantial
degree by rapid technical advances.” Ante, at 22. The idea,
presumably, is that the snail’s pace in this case is atypical, so
that DNA is now readily usable for identification. The Court’s
proof, however, is nothing but a pair of press releases—each of
which turns out to undercut this argument. We learn in them that
reductions in backlog have enabled Ohio and Louisiana crime labs to
analyze a submitted DNA sample in twenty days.[ 5 ] But that is still longer than the eighteen days that Maryland needed to analyze King’s sample,
once it worked its way through the State’s labyrinthine
bureaucracy. What this illustrates is that these times do not take
into account the many other sources of delay. So if the Court means
to suggest that Maryland is unusual, that may be right—it may
qualify in this context as a paragon of efficiency. (Indeed, the
Governor of Maryland was hailing the elimination of that State’s
backlog more than five years ago. See Wheeler, O’Malley Wants to
Expand DNA Testing, Baltimore Sun, Jan. 11, 2008, p. 5B.)
Meanwhile, the Court’s holding will result in the dumping of a
large number of arrestee samples—many from minor offenders—onto an
already overburdened system: Nearly one-third of Americans will be
arrested for some offense by age 23. See Brame, Turner,
Paternoster, & Bushway, Cumulative Prevalence of Arrest From
Ages 8 to 23 in a National Sample, 129 Pediatrics 21 (2011).

															The Court also accepts uncritically the
Government’s representation at oral argument that it is developing
devices that will be able to test DNA in mere minutes. At most,
this demonstrates that it may one day be possible to design a
program that uses DNA for a purpose other than crime-solving—not
that Maryland has in fact designed such a program today. And that
is the main point, which the Court’s discussion of the brave new
world of instant DNA analysis should not obscure. The issue before
us is not whether DNA can some day be used for
identification; nor even whether it can today be used for
identification; but whether it was used for identification
here. Today, it can fairly be said that fingerprints
really are used to identify people—so well, in fact, that there
would

															be no need for the expense of a separate, wholly
redundant DNA confirmation of the same information. What DNA
adds—what makes it a valuable weapon in the law-enforcement
arsenal—is the ability to solve unsolved crimes, by matching old
crime-scene evidence against the profiles of people whose
identities are already known. That is what was going on when King’s
DNA was taken, and we should not disguise the fact. Solving
unsolved crimes is a noble objective, but it occupies a lower place
in the American pantheon of noble objectives than the protection of
our people from suspicionless law-enforcement searches. The Fourth
Amendment must prevail.

															*  *  *

															The Court disguises the vast (and scary) scope
of its holding by promising a limitation it cannot deliver. The
Court repeatedly says that DNA testing, and entry into a national
DNA registry, will not befall thee and me, dear reader, but only
those arrested for “serious offense[s].” Ante, at 28; see
also ante, at 1, 9, 14, 17, 22, 23, 24 (repeatedly limiting
the analysis to “serious offenses”). I cannot imagine what
principle could possibly justify this limitation, and the Court
does not attempt to suggest any. If one believes that DNA will
“identify” someone arrested for assault, he must believe that it
will “identify” someone arrested for a traffic offense. This Court
does not base its judgments on senseless distinctions. At the end
of the day, logic will out. When there comes before us the
taking of DNA from an arrestee for a traffic violation, the Court
will predictably (and quite rightly) say, “We can find no
significant difference between this case and King .” Make no
mistake about it: As an entirely predictable consequence of today’s
decision, your DNA can be taken and entered into a national DNA
database if you are ever arrested, rightly or wrongly, and for
whatever reason.

															The most regrettable aspect of the suspicionless
search that occurred here is that it proved to be quite
unnecessary. All parties concede that it would have been entirely
permissible, as far as the Fourth Amendment is concerned, for
Maryland to take a sample of King’s DNA as a consequence of his
conviction for second-degree assault. So the ironic result of the
Court’s error is this: The only arrestees to whom the outcome here
will ever make a difference are those who have been
acquitted of the crime of arrest (so that their DNA could not
have been taken upon conviction). In other words, this Act manages
to burden uniquely the sole group for whom the Fourth Amendment’s
protections ought to be most jealously guarded: people who are
innocent of the State’s accusations.

															Today’s judgment will, to be sure, have the
beneficial effect of solving more crimes; then again, so would the
taking of DNA samples from anyone who flies on an airplane (surely
the Transportation Security Administration needs to know the
“identity” of the flying public), applies for a driver’s license,
or attends a public school. Perhaps the construction of such a
genetic panopticon is wise. But I doubt that the proud men who
wrote the charter of our liberties would have been so eager to open
their mouths for royal inspection.

															I therefore dissent, and hope that today’s
incursion upon the Fourth Amendment, like an earlier one,[ 6 ] will some day be repudiated. Notes 1 The Court’s insistence
( ante, at 25) that our special-needs cases “do not have a
direct bearing on the issues presented in this case” is perplexing.
Why spill so much ink on the special need of identification if a
special need is not required? Why not just come out and say that
any suspicionless search of an arrestee is allowed if it will be
useful to solve crimes? The Court does not say that because most
Members of the Court do not believe it. So whatever the Court’s
major premise—the opinion does not really contain what you would
call a rule of decision—the minor premise is “this search
was used to identify King.” The incorrectness of that minor premise
will therefore suffice to demonstrate the error in the Court’s
result. 2 By the way, this
procedure has nothing to do with exonerating the wrongfully
convicted, as the Court soothingly promises. See ante, at
17. The FBI CODIS database includes DNA from unsolved crimes. I know of no indication (and the Court cites none) that it
also includes DNA from all—or even any—crimes whose perpetrators
have already been convicted. 3 Puzzlingly, the Court’s
discussion of photography and Bertillon measurements repeatedly
cites state cases (such as Clausmier ) that were decided
before the Fourth Amendment was held to be applicable to the
States. See Wolf v. Colorado , 338 U.S.
25 (1949); Mapp v. Ohio , 367
U.S. 643 (1961). Why the Court believes them relevant to the
meaning of that Amendment is therefore something of a
mystery. 4 See, e.g., FBI,
Privacy Impact Assessment: Integrated Automated Fingerprint
Identification System (IAFIS)/Next Generation Identification (NGI)
Repository for Individuals of Special Concern
(RISC),http://www.fbi.gov/foia/privacy-impact-assessments/iafis-ngi-risc
(searches of the “Unsolved Latent File” may “take considerably more
time”). 5 See Attorney General
DeWine Announces Significant Drop inDNA Turnaround Time (Jan. 4,
2013),
http://ohioattorneygeneral.gov/Media/News-Releases/January-2013/Attorney-General-DeWine-Announces-Significant-Drop;
Gov. Jindal Announces Elimination of DNA Backlog(Nov. 17, 2011),
http://www.gov.state.la.us/index.cfm?md=newsroom&tmp=detail&articleID=3102. 6 Compare, New York v. Belton , 453 U.S.
454 (1981) (suspicionless search of a car permitted upon arrest
of the driver), with Arizona v. Gant , 556 U.S.
332 (2009) (on second thought, no).