In Maryland v. King, ___ U.S. ___ (June 3, 2013) the Court upheld the warrantless swabbing of individuals arrested for what the Court characterized as "serious" offenses. Left open by the Court's decision are the questions of 1) what constitutes a serious offense; and 2) whether the warrantless seizure of DNA samples is permissible for individuals convicted of misdemeanor offenses, which, by definition, can result in incarceration of one year or less. Unfortunately, as the result of the Court's sweeping language in the King decision, lower courts may have a difficult time in distinguishing between a "serious" offense justifying the warrantless sampling of DNA evidence and the routine misdemeanors for which hundreds of thousands of people are arrested for or convicted of every year in this country. Thus, what the Court apparently views as a non-intrusive law enforcement practice may have a much greater impact on the constitutional rights of individuals than the Court could have envisioned, a problem highlighted by Justice Scalia in his dissent.
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