In a narrowly divided recent Supreme Court decision, five of the justices ruled that it is okay for a police officer to swab someone arrested for a serious crime even before they are convicted. This law allows a police officer to swab the inside of the mouth of an arrestee during his/her arrest. This, say the proponent justices, is much like fingerprinting or photographing.

When dealing with Fourth Amendment criminal procedure, the basis of any decision is whether or not the search is “reasonable” and whether or not that search was done in a place where the person had a “reasonable expectation of privacy.” Enough ink has been spilled defining those two legal idioms, but for purposes of explanation, let’s just say that the inside of one’s mouth is, for some, not narrow enough to fit under those two definitions. Justice Scalia for one wrote a cheeky dissent opining that this decision is a slippery slope of invasive surgery to the Fourth Amendment.

This is nothing new to our home state of Ohio where this law has been in effect since 2005. In Ohio, it is REQUIRED to take a DNA specimen of anyone arrested for a felony over the age of 18. The law requires that the sample be taken by the arresting law enforcement agency during the intake process at the jail, community-based correctional facility, detention facility or law enforcement agency or station to which the arrestee is taken.