By Regan Gibson, ACLR Featured Blogger


            On February 26, 2013, the Supreme Court will hear argument in Maryland v. King, and will determine the constitutionality of a Maryland statute that authorizes the collection of DNA from individuals arrested for certain felonies.  In brief, the case concerns Alonzo King, who was arrested in 2009 on first and second-degree assault charges, and was subjected to DNA collection under the 2008 amendments to the Maryland DNA Collection Act. The Act authorizes authorities to collect DNA samples from those arrested for a crime of violence, an attempted crime of violence, a burglary, or an attempted burglary. Samples taken from arrestees are analyzed and profiles are uploaded in the FBI’s Combined DNA Index System (“CODIS”), where they can be compared against samples taken from crime scenes.[1]  King’s profile was uploaded into the system and a few months later (but before his trial on the assault charges) was matched with an unknown sample collected after an unsolved sexual assault.  The CODIS match was used as probable cause for a search warrant to collect a new sample from King and he was subsequently indicted and convicted for first-degree rape. King was sentenced to life in prison.

            The Maryland Court of Appeals refused to facially invalidate the law, but held that it had been unconstitutionally applied in King’s case.  The court had already upheld the pre-2008 version of statute in State v. Raines, where they determined that DNA collection from convicted felons was constitutional because these individuals have a severely reduced expectation of privacy and the state has a legitimate interest in supervising convicted criminals in order to prevent recidivism.  The court, employing the “totality of the circumstances” balancing test,[2] found that arrestees have a greater expectation of privacy than convicted criminals, and that their expectation outweighed government interests in identifying the arrestees through DNA.

            The State of Maryland, in its Supreme Court brief, argues that a totality of the circumstances balancing approach demands that the law be upheld. The State considers this case to be analogous to Samson v. California, where the Supreme Court held that the government’s legitimate interest in monitoring parolees and reducing recidivism outweighed the reduced expectation of privacy of those who are on a “continuum of supervision by the state.” The State argues that the cheek swab is no greater an intrusion than fingerprinting, and that the arrestees, like convicted felons, probationers and parolees, have no expectation of privacy when it comes to their identity, which the state defined broadly to encompass DNA. They emphasize that the profiles generated from the DNA tests contain strictly identifying information, and do not reveal any genetic characteristics. The State argues that this small intrusion on an individual with a severely reduced expectation of privacy is vastly outweighed by the state's interest in identifying arrestees accurately and in solving crimes. The state points to safeguards in the law that create penalties for the misuse of the information and allows for automatic expungement of profiles for arrestees who are acquitted as being sufficient to protect the genetic privacy of arrestees.

            In contrast, King argues that while DNA provides an effective tool for law enforcement, its collection still constitutes a search under the Fourth Amendment that must be justified with probable cause. King argues that unlike fingerprints, DNA testing does not help identify individuals who are in custody, and is a way for law enforcement to investigate other crimes that the arrestee may have committed.  King emphasizes that the CODIS DNA profiles, unlike those in the FBI fingerprint database, do not include names, personal identifiers, criminal histories, or anything else to indicate who the individual is, and so does nothing to identify who the arrestee is. King dismisses the State’s purported guarantees of safeguards against abuse: Maryland can keep the sample even after the profile is prepared, and so will have access to the arrestee’s entire genetic code, provided they use it for one of the broad purposes of the law. In sum, King argues that the intrusion into the arrestee’s genetic information cannot be outweighed by the “ordinary law enforcement purpose” of investigating other crimes. 

            Arguably, the most important contention between the two parties is their differing definitions of what constitutes “identity.” It is obvious that there is a legitimate state interest in having law enforcement agencies know the identities of  who they have arrested, not only to ensure that they have the right person, but for issues of pretrial detention, bail, and investigating the crime charged. The question is what that identification means. On one side, you have the simple identification of who a person is: their name, their date of birth, and other personal identifiers.  On the other hand, there is the identification of what a person has done: not only their criminal history, but any other unsolved crimes they may have committed. There is no argument that arrestees have an expectation of privacy in the first category.  The second category, however, raises significant Fourth Amendment questions.

            Both sides raise interesting points on this issue, but it is King who, in this blogger’s opinion, best addresses the argument.  King argues that while an arrest must of course curtail an individual’s rights an arrest does not dispense with the arrestee's Fourth Amendment rights in other investigations. The DNA that is being collected is not being used as evidence in the charged crime, and thus is not a search incident to lawful arrest. Because the profile takes weeks to prepare and contains no names, identifiers or criminal history, it has nothing to do with the first category of identification. An arrestee is not subject to the same supervision by the state as the parolee described in Samson, because he is protected by the presumption of innocenceIn essence, the primary purpose of the law is, as King states, solving other unsolved crimes. This is a noble purpose, to be sure, but not one that qualifies for special treatment under the Fourth Amendment. An arrestee may have diminished expectations of privacy, but it does not give the state an unlimited right to investigate any unrelated crime he might have committed without respect for his rights. Indeed, as King argues, if an arrestee’s expectation of privacy regarding other crimes was as non-existent as the State implies, then the doctrine of search incident to arrest would allow officers to search for any evidence of any crime on the arrestee, whether or not it was related to the specific crime being investigated.

            Despite what are very logical arguments on behalf of curtailing this intrusion, it seems that social and political forces more concerned with law enforcement than civil liberties protection may win the day and uphold the law.  The Supreme Court’s decision in this case will have significantly broader implications than just the validation or invalidation of the Maryland law.  Twenty-seven other states and the federal government require DNA collection and analysis from at least some arrestees. A significant number of amici have filed briefs in support of DNA testing for arrestees, including the National Association of District Attorneys, the National Governors AssociationDNA Saves, the Maryland Coalition Against Sexual Assault, and the United States.  Each brief argues for the importance of DNA in identifying recidivists, solving cold cases, and preventing the conviction of innocent citizens for crimes they did not commit.  If the Court invalidates the Maryland statute, the effects will be felt in law enforcement agencies nationwide.  DNA is the most accurate method of identification in use today, and is as a result incredibly popular, not in the least because it helps ensure that innocents are not convicted of crimes they did not commit. DNA has many benefits; the question is whether they are worth a watering down of one of our most important civil rights.