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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