On June 3, 2013 the Supreme Court issued its 5-4 opinion in Maryland v. King, holding that when a suspect is arrested with probable cause for a serious offense it is a reasonable search for the officers to collect a DNA swab from the suspect. Writing for the majority, Justice Kennedy analogized the DNA swab to fingerprinting and photographing as legitimate and routine police booking procedures. The case before the Court involved Mr. King who, in 2009, was arrested for first and second-degree assault and had a DNA sample taken as part of the routine booking procedures for serious offenses in Maryland. Maryland law allows DNA samples to be taken from arrestees charged with violent crimes, burglaries, and attempts to commit either a violent crime or burglary. Md. Pub. Saf. Code Ann § 504(a)(3)(i) (Lexis 2011). The DNA sample was matched to an unsolved rape case from 2003, and Mr. King was subsequently charged and convicted for the 2003 rape. Mr. King moved to suppress the DNA evidence as it violated his Fourth Amendment rights, and the Maryland Court of Appeals agreed with Mr. King finding that the DNA swab, in this context, was an unreasonable search. The Supreme Court reversed the Maryland Court of Appeals’ decision.The majority reasoned that identifying the individuals who are brought into custody is clearly within the State’s interest. As the State already engages in similar identifying behavior by fingerprinting suspects, obtaining the DNA sample is just one more source of identification. The majority reasoned that the DNA swab is limited in its intrusiveness, as it simply requires the swab of a Q-tip on the inside of the suspect’s cheek. The Court found the government’s interest in obtaining identifying information outweighed the minimally intrusive search of the DNA swab.
In addition, a person in police custody already has a diminished expectation of privacy and allowing the DNA sample to be collected for identification purposes would not interfere with this expectation. Under Maryland law, the samples of DNA obtained are solely used for the purposes of identification and not to determine specific genetic traits. The Court equated this limited scope to the way a drug-test merely tests for the presence of drugs and does not evaluate an individual’s complete medical history. Accordingly, the Court held the DNA testing of arrestees to be a part of the routine booking procedures and a reasonable search.
The dissent, written by Justice Scalia, was premised on the idea that a DNA swab is not solely used for identification purposes but used to discover criminal wrongdoing. Justice Scalia asserted that an invasion of the body without suspicion, no matter how small, is never allowed when the aim is a criminal investigation. He found that the majority’s use of the term “identification” actually means identifying other crimes the suspect may have committed. Justice Scalia further explained the differences between how DNA samples and fingerprints are analyzed, concluding that the two systems cannot be compared. For example, he asserted it takes about twenty-seven minutes to get a response for a fingerprint submission, while it can take several months for a DNA analysis. While he contended that it is “noble ” to want to solve cold cases, this state interest does not outweigh an individual’s interest in protection from suspicionless searches.
Currently, there are twenty-eight states along with the Federal Government that conduct DNA testing on suspects in custody. Many of these states have laws similar to Maryland, where the testing is only done for specific offenses; however, the Federal Government conducts testing on all suspects. The minimally intrusive act of a cheek swab potentially provides law enforcement with invaluable information. The analogy to fingerprint collection is apt, because both have similar identification functions. Further, police departments have the similar ability with fingerprints, as with DNA, to match the samples to previously unsolved cases. In this respect the collection of DNA and fingerprints serve identical purposes and thus should be treated similarly under the law. Consequently, allowing officers to utilize DNA testing as part of their routine booking procedures permits the full use of technology in criminal investigations.
Some fear that allowing DNA collection to be used on arrestees is a slippery slope and will potentially lead to all citizens having their DNA catalogued. However, this fear seems unwarranted because the Supreme Court has acknowledged that the collection of DNA constitutes a search and the holding in this case is only applicable to suspects in custody for serious offenses. The majority does not define what offenses constitute serious offenses, thus seeming to allow the states to define them; the Maryland statute could provide some guidance. Despite leaving the definition open to interpretation, the Court acknowledged that this type of testing should not be done in every situation.
The use of this technology could help to solve cold cases and ensure that the correct people are prosecuted for crimes. Ensuring the correct people are prosecuted is not only in the State’s interest, but also the public’s interest. Moreover, unlike other types of searches, DNA testing, as it is currently being used, only reveals a person’s identification. There should be no fear that personal, private information will be revealed, like “at what hour of the night the lady of the house takes her daily sauna and bath.” Kyllo v. United States. With the proper controls in place, allowing the collection of DNA swabs from individuals in custody for serious offenses based on probable cause, will undoubtedly protect the State’s and the public’s interest.
Rochelle Brunot
Associate Publications Editor, Criminal Law Brief
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