DNA Recording: The Court Allows Maryland to Continue Collecting and Testing DNA Samples from People Who Are Arrested.

On Monday, July 30, Chief Justice Roberts issued a stay to allow Maryland to continue sampling and testing DNA from people who have been arrested, but not yet convicted, of a crime.  This practice came under fire in 2009 when Alonzo Jay King, Jr., was arrested for assault.  During the booking process, personnel at the Wicomico County Central Booking facility took a sample of King’s DNA.  Maryland State Police Forensic Sciences Division processed the sample and entered it into the Maryland DNA database.  The database matched the sample to a rape that was committed in 2003.  Following this match, King was charged and convicted of that rape. 

King appealed his conviction, arguing that Maryland violated his Fourth Amendment right to an expectation of privacy.  He also argued that expectation of privacy outweighed any interest the State might have in collecting his DNA.  The Maryland Court of Appeals agreed and overturned King’s conviction.  The State appealed this decision to the Supreme Court of the United States.

To issue a stay, the State had to show three things.  First, that there was a “reasonable probability” that the Court would grant certiorari to hear the case.  Second, that there was a “fair prospect” that the Court would reverse the lower court’s decision.  And, third, that there was a “likelihood that harm [would] result from the denial of a stay.” 

The Chief Justice easily found a reasonable probability that the Court would grant certiorari to hear the case.  Given that the Circuit Courts do not agree on the issue––also known as a circuit split––there was a high probability that the Court would hear the case.  Generally, the Court tries to resolve circuit splits to ensure the Constitution is being applied consistently across the country. 

In finding that there was a reasonable probability that the Court would grant certiorari, the Chief Justice characterized this split as “implicat[ing] an important feature of day-to-day law enforcement practices.”  The Chief Justice went on to say that the decision would have effects beyond just Maryland because the samples Maryland collects go into the FBI database and can be matched to crimes across the country. 

The second element the State had to prove was that there was a “fair prospect” that the Court would reverse the lower court.  The Chief Justice addressed this question in a single sentence: “[i]n addition, given the considered analysis of courts on the other side of the split, there is a fair prospect that this Court will reverse the decision below.”  Whether the Chief Justice chose to consider this factor in such a cursory manner because he is concerned whether he has the votes to actually overturn the lower court’s ruling is anyone’s guess.  Issuing the stay is at least an indication that the Court is split on this issue, or they would not have bothered with the stay before deciding whether to take the case.

The third element was that the State would suffer irreparable harm if the stay were not issued.  Chief Justice Roberts credited this program as a “valuable tool for investigating unsolved crimes” and helping reduce the number of violent offenders in the public.  The Chief Justice also noted that crimes that involve DNA evidence in the first place “tend to be serious, and serious crimes cause serious injuries.”  Thus, Maryland does suffer irreparable harm if the stay is not issued. While King argued that the Court should consider Maryland’s eight-week delay as undermining its claim of irreparable harm, the Chief Justice still gave more weight to the value this policy has for law enforcement efforts.

Whether this program will ultimately be found unconstitutional is unknown.  Having granted the stay, it seems almost a certainty that the Court will ultimately hear the case.  The Chief Justice seems to indicate in his opinion granting the stay that the program will ultimately be found constitutional.  However, it is unclear whether he will be able to find the votes to support his position. Criminal law is an interesting area, and the votes do not always follow traditional party lines.   In this last term alone, Chief Justice Roberts, Justices Scalia, Kennedy, Thomas, and Sotomayor agreed that the installation of a GPS tracking device on a car without a warrant was unconstitutional.  Justices Alito, Ginsberg, Breyer, and Kagan would have found the same result, but disagreed with the majority’s “trespass” approach.  In addition, the Court split 4-1-4 in Williams v. Illinois.  Justices Kagan, Scalia, Ginsburg, and Sotomayor composed the dissenting opinion, while Chief Justice Roberts, Justices Kennedy, Alito, and Breyer composed the majority.  Justice Thomas concurred partially with the dissent, and partially with the majority.  Neither of these cases displayed the usual break down of votes, with Chief Justice Roberts, Justices Alito, Thomas, and Scalia on one side, Justices Ginsberg, Breyer, Kagan, and Sotomayor on the other, with Justice Kennedy as the decisive vote.   

The concern with this sort of program is what safeguards are in place to keep officers from abusing the policy.  Under this program, could an officer arrest a suspect on an unrelated crime as a pretext for collecting their DNA?  Suppose this unrelated crime was a traffic violation.  The Supreme Court has ruled that the police may arrest people for traffic violations, even if the penalty is a simple fine.  The potential for abuse in this type of program seems unavoidable.  Hopefully the Court will address this problem when it inevitably grants certiorari in this case.

Bonnie Lindemann

Blogger, Criminal Law Brief