In 2009, Alonzo Jay King,
Jr. was arrested for first and second-degree assault. Section 2-504(3) of
the Maryland DNA Collection Act authorizes law enforcement authorities to
collect a DNA sample from individuals arrested for a crime of violence, an
attempted crime of violence, a burglary, or an attempted burglary.
Pursuant to this statute, King’s DNA was collected via a buccal swab, and
entered into Maryland’s DNA database. Buccal swabs are cotton tipped
applicators that the officer inserts in an arrestees’ mouth in order to collect
cheek cells used to test DNA. Since the swab enters the arrestees’ body,
it is considered a search under the Fourth Amendment. Before he was
convicted of the charges, King’s DNA was matched to an unsolved rape in 2003,
and this match provided the sole probable cause for a grand jury indictment of
King on the rape charge.
The majority ruled that
arrested individuals have a higher level of privacy than those who have been
convicted, that an arrested individual’s expectation of privacy in his
biological information outweighed the state’s interest in gathering information
to solve other crimes, and that DNA sampling is more intrusive than simply
taking a suspects fingerprints. Additionally, in King’s case, the sample
was not necessary to identify him for the assault charge; in fact the law
enforcement officers did not receive the “hit” on King’s DNA until almost four
months after he was arrested for assault. Thus the DNA sample taken from
King was solely used for investigating him for the prior rape incident, not for
identification.
The dissenting opinion
written by Judge Barbera and joined by Judge Wilner argued that a swab of the
mouth is the least intrusive of all seizures and the government’s interest in
solving crime far outweighs the privacy interests of those arrested and
detained. The dissent further argued that the majority overstated the
amount of biological information that could be obtained from this sample, as
there are strict laws governing the use of DNA information, and what the DNA
sample shows is virtually identical to that of a fingerprint that can only be
used to identify the specific person.
Though a cert petition has
not yet been filed, state officials have indicated they will seek to take the
case to the Supreme Court and it is preliminarily set for conference at the end
of September. State officials are also considering asking the Justices to
postpone the state court ruling in the meantime. Previously, the Supreme
Court refused to take a similar case, Mitchell
v. US, where a DNA sample from a Pennsylvania man was not used to identify
the individual as the perpetrator of a different crime. However in King’s
case, the DNA sample taken from him was not used to identify him for the charge
he was arrested for but was used, months later, to identify him in a rape case.
Though cert was not granted in Mitchell’s case, the fact that King’s DNA was
used to identify him as the perpetrator of a different crime, as well as the
disparate rulings between lower state and federal courts on this issue, makes
it likely King’s case will be heard.
Currently, twenty-five of
fifty states and the federal government have statutes similar to the statute in
Maryland regarding gathering DNA samples from individuals arrested for violent
crimes, as well as many other states with similar legislation pending.
Currently, the Third Circuit, the Virginia Supreme Court, the Western District
of New York, and the District of Colorado have all found statutes requiring DNA
analysis upon arrest (the statutes differ on which crimes invoke this statute)
constitutional. Alternatively, along with the Maryland Court of Appeals,
the Minnesota Court of Appeals, and the California Court of Appeals have found
similar statutes to be unconstitutional.
Since there is no doubt a
buccal swab is indeed a search under the Fourth Amendment, the question now
becomes whether the Supreme Court will hold that the legitimate government
interests for the search outweigh the privacy interests of the arrestee.
Does the interest of the government in solving cold cases and exonerating
innocent individuals outweigh the privacy interests of an individual whom officers had probable cause to arrest for a violent crime, but not
necessarily probable cause necessary for a search warrant? Alternatively,
does the interest of the government in correctly identifying the individual
outweigh the privacy interest of the arrestee, even if they could be or already
have been identified by their fingerprints? These are the questions the
Supreme Court will have to answer if they decide to grant cert in King v. Maryland, and one would hope
they do in order to align state and federal law on this sensitive issue.
Nicole Irwin
Blogger, Criminal Law Brief
Indeed this is an issue that needs to be resolved. Great piece Nicole!
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