Buccal Swab "Booking Procedures": Lower Courts Struggle to Apply Maryland v. King

On June 3, 2013, the Supreme Court handed down a widely-anticipated opinion in Maryland v. King.  In this case, the defendant’s DNA was collected by the state after an arrest for first-degree assault.  Though he pled to a lesser misdemeanor charge, King’s DNA was found to be a match for an unsolved 2003 rape for which he was eventually convicted.  The Court addressed the following issue: “whether the Fourth Amendment prohibits the collection and analysis of a DNA sample from persons arrested, but not yet convicted, on felony charges.”  Justice Kennedy, writing for the Court, did not examine the issue in isolation, but considered it in light of Maryland’s DNA Collection Act, which contained various protections for the accused.  Specifically, DNA could only be collected if the individual was charged with a violent crime, could not be recorded or stored until after the individual was arraigned, and samples would be destroyed if the criminal action did not result in a conviction; further, the DNA could not be used for any purpose other than identification.

DNA Testing the Next Chapter - The Supreme Court's Ruling in Maryland v. King

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.