By Heidi Schumann, ACLR Featured Blogger

The Supreme Court’s decision in Maryland v. King permitted the collection and analysis of DNA under the Maryland DNA Collection Act.1 The Maryland statute allowed for the collection of DNA from a defendant charged with a crime of violence or burglary or an attempted crime of violence or burglary.2 The sample is kept until arraignment, at which point it can be processed through a database called CODIS.  If the defendant is not convicted, then the sample is automatically destroyed.3 The Court found that this system of DNA collection and comparison did not violate the Fourth Amendment.4 The Court in King disregarded important privacy interests, focusing on the specific limitations that the Maryland statute put in place to protect individual privacy.5 In a recent decision from the California Supreme Court,6 the privacy interests not acknowledged or credited by the United States Supreme Court were brought to the forefront, and the statute permitting DNA collection and analysis in California was correctly found to violate its citizens’ privacy interests.

In Maryland v. King, the court acknowledged that the buccal swab fell under the Fourth Amendment as a search and seizure, which authorities cannot perform without a warrant unless it is “reasonable.”7 Under the reasonableness analysis the majority found that the government interest, “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”8 outweighed the minimal invasion of “a gentle rub along the inside of the cheek [which] does not break the skin.”9 The Court also considered the privacy invasion that stems from analyzing the person’s DNA and concluded that the statutory limitations on the type of information that can be extracted from the DNA and the lack of discretion in obtaining the sample results in a minimal invasion of privacy.10 It concluded that these limits meant that the DNA would only be used for identification, and the government’s interest in identifying defendants through the most accurate means was permissible and outweighed the privacy invasion.11 

When the Court considered the invasion of privacy, it overlooked the concern that obtaining and cataloging a person’s DNA profile, even if the purpose truly is for identification, does not limit the information the government has obtained to simply the identity of the person. Nor does the Court’s reasoning necessarily limit this privacy invasion to only serious offenders. Thus, the Court opens the gate for later decisions, consistent with its reasoning in King, which could allow significantly more information to be obtained from the DNA and could effectively be obtained from almost any individual in the country. These concerns are argued in the dissent and highlighted by the California Supreme Court’s finding in Buza.12

Justice Scalia’s dissent in Maryland v. King focused on the concern that the purpose of collecting the DNA is not for identification, but for crime solving, and on that basis is an unconstitutional search.13 However, Justice Scalia also argued “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.”14 This concern is even hinted at in the majority opinion. The majority argued that the criminal history of a person is a part of his or her identity. As examples of the utility of knowing a person’s true identity, the Court cited several incidences when major criminals have been pulled over for minor traffic infractions shortly before or after committing their crimes.15 The Court’s examples demonstrate the ease with which its analysis can be twisted to apply equally to the crimes currently allowable under the Maryland law and to those of a routine nature such as traffic stops, because in each the government has an interest in knowing a person’s “full identity.”16

The concerns regarding the abuse of the DNA collection and analysis discussed by Justice Scalia are central the California Supreme Court’s reasoning in People v. Buza. There, the Supreme Court of California determined that the DNA collection scheme in California was unconstitutional under the state constitution’s protection from unreasonable searches and seizures, which is identically worded to the United State’s Fourth Amendment.17 The court’s decision is based in part on the differences in the California DNA collection law, which is more invasive than the Maryland law, and a different calculation of the effects on privacy resulting from the cataloguing and analysis of DNA.18

The California DNA Act required DNA swabbing as soon as practicable of a person arrested for any felony and permitted the sample to be processed immediately.19 Therefore, there was no probable cause finding before the DNA could be processed.20 Additionally, the California law did not automatically expunge DNA data if the person was not convicted, and the statute expressly permitted the analysis of familial DNA.21 This DNA collection scheme, which if analyzed under the United States Supreme Court’s framework in King could very well be found constitutional based on the Court’s reasoning and definition of identity. However, the expansiveness of the collection and storage of the data tiptoes closer to the dissent’s picture of nearly every person’s DNA being collected and stored.

The California Supreme Court also analyzed the invasiveness of the DNA information differently and more fully that the United States Supreme Court. The California Supreme Court’s concern was twofold. First, under the California DNA Collection Act the DNA can be and was used for purposes other than identification, such as familial DNA searches.22 The only difference between the buccal swabs taken in California and those in Maryland was the amount of information allowed by statute to be extracted from them, but the entirety of the person’s genome is still contained on the swab, which is stored.23

The California Supreme Court also acknowledged that its law and almost every other state and federal DNA collection law do not specify how long these samples are to be kept.24 The court rightly hypothesized that based on the very limited restrictions currently in place as to the future of the DNA it is quite possible that the government could one day analyze these samples for research purposes such as researching if and which genes correspond to particular criminal behaviors.25 While this type of scheme is certainly not contemplated in or approved by the Court in King, there is concern about how the government will later use the DNA data, even if collected for the purpose of identity. The NSA Data Collection scheme certainly makes this concern realistic.26 In fact, the use of familial DNA testing previously allowed the California DNA Collection Act, which allowed parties who are not the arrestee or even the suspect of any investigation to be incriminated for past crimes, exemplifies this type of abuse.27 Thus, the California law highlights the abuses that can stem from the collection scheme upheld in King. The decision in Buza only applied to the California Constitution thereby still leaving open the possibility that a similarly invasive scheme could be constitutionally permissible and applied in another state.