On Friday, May 18,2012, the Maryland Court of Appeals, the state’s highest court, denied a request to reconsider its decision in King v. Maryland. On April 24, 2012, in a 5-2 opinion written by Judge Harrell, the Court found that collecting a DNA sample from an individual who had been arrested, but not convicted, of a violent crime was a violation of the individuals Fourth Amendment right. In arguing for the reconsideration, or in the alternative a stay on the decision until the case could be considered by the United States Supreme Court, the Maryland attorney general stated that the decision could affect prosecutors’ use of evidence that could help solve 190 unsolved cases, as well as exonerate an unknown number of innocent individuals.
In 2009, Alonzo Jay King, Jr. was arrested for first and second-degree assault. Section 2-504(3) of the Maryland DNA Collection Act authorizes law enforcement authorities to collect a DNA sample from individuals arrested for a crime of violence, an attempted crime of violence, a burglary, or an attempted burglary. Pursuant to this statute, King’s DNA was collected via a buccal swab, and entered into Maryland’s DNA database. Buccal swabs are cotton tipped applicators that the officer inserts in an arrestees’ mouth in order to collect cheek cells used to test DNA. Since the swab enters the arrestees’ body, it is considered a search under the Fourth Amendment. Before he was convicted of the charges, King’s DNA was matched to an unsolved rape in 2003, and this match provided the sole probable cause for a grand jury indictment of King on the rape charge.
The majority ruled that arrested individuals have a higher level of privacy than those who have been convicted, that an arrested individual’s expectation of privacy in his biological information outweighed the state’s interest in gathering information to solve other crimes, and that DNA sampling is more intrusive than simply taking a suspects fingerprints. Additionally, in King’s case, the sample was not necessary to identify him for the assault charge; in fact the law enforcement officers did not receive the “hit” on King’s DNA until almost four months after he was arrested for assault. Thus the DNA sample taken from King was solely used for investigating him for the prior rape incident, not for identification.
The dissenting opinion written by Judge Barbera and joined by Judge Wilner argued that a swab of the mouth is the least intrusive of all seizures and the government’s interest in solving crime far outweighs the privacy interests of those arrested and detained. The dissent further argued that the majority overstated the amount of biological information that could be obtained from this sample, as there are strict laws governing the use of DNA information, and what the DNA sample shows is virtually identical to that of a fingerprint that can only be used to identify the specific person.
Though a cert petition has not yet been filed, state officials have indicated they will seek to take the case to the Supreme Court and it is preliminarily set for conference at the end of September. State officials are also considering asking the Justices to postpone the state court ruling in the meantime. Previously, the Supreme Court refused to take a similar case, Mitchell v. US, where a DNA sample from a Pennsylvania man was not used to identify the individual as the perpetrator of a different crime. However in King’s case, the DNA sample taken from him was not used to identify him for the charge he was arrested for but was used, months later, to identify him in a rape case. Though cert was not granted in Mitchell’s case, the fact that King’s DNA was used to identify him as the perpetrator of a different crime, as well as the disparate rulings between lower state and federal courts on this issue, makes it likely King’s case will be heard.
Currently, twenty-five of fifty states and the federal government have statutes similar to the statute in Maryland regarding gathering DNA samples from individuals arrested for violent crimes, as well as many other states with similar legislation pending. Currently, the Third Circuit, the Virginia Supreme Court, the Western District of New York, and the District of Colorado have all found statutes requiring DNA analysis upon arrest (the statutes differ on which crimes invoke this statute) constitutional. Alternatively, along with the Maryland Court of Appeals, the Minnesota Court of Appeals, and the California Court of Appeals have found similar statutes to be unconstitutional.
Since there is no doubt a buccal swab is indeed a search under the Fourth Amendment, the question now becomes whether the Supreme Court will hold that the legitimate government interests for the search outweigh the privacy interests of the arrestee. Does the interest of the government in solving cold cases and exonerating innocent individuals outweigh the privacy interests of an individual whom officers had probable cause to arrest for a violent crime, but not necessarily probable cause necessary for a search warrant? Alternatively, does the interest of the government in correctly identifying the individual outweigh the privacy interest of the arrestee, even if they could be or already have been identified by their fingerprints? These are the questions the Supreme Court will have to answer if they decide to grant cert in King v. Maryland, and one would hope they do in order to align state and federal law on this sensitive issue.
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