Supreme Court: Collection of Pre-conviction DNA Samples is Constitutional

Filed under: Criminal Law by Contributor @ June 5, 2013

Last Monday, the United States Supreme Court issued its opinion in Maryland v. King. The Court sought to answer the question, Can the police or any other arresting agency take a DNA sample of an individual who has been arrested for a “serious crime”, even if he or she has not been convicted yet? In a 5-4, decision, the Court ruled that such agencies can engage in this practice. Justice Kennedy authored the majority opinion, joined by Chief Justice Roberts and Justices Thomas, Breyer, and Alito. Justice Scalia authored the dissent, joined by Justices Ginsburg, Sotomayor, and Kagan.

In 2003, an unknown man raped a woman in Salisbury, Maryland. Police were not able to identify the assailant using any of the means available to them. In 2009, respondent Alonzo King was arrested in Wicomico County, Maryland for menacing a group of people with a shotgun, and was charged with first- and second-degree assault. When he was being booked at the police station, a sample of King’s DNA was taken by way of a buccal swab, which involves swabbing the inside of the mouth, pursuant to the Maryland DNA Collection Act (“The Act”). The Act requires a DNA sample to be collected from individuals arrested for a “serious offense”, and provides that the sample may not be processed before an arrestee is arraigned and that it must be destroyed if the arrest does not result in a conviction, if the arrestee is convicted but the conviction is reversed, or if the arrestee is granted an unconditional pardon. The DNA sample collected from King in 2009 pursuant to The Act linked him to the rape in 2003, and he was found guilty of the rape and sentenced to life in prison without the possibility of parole.

King appealed the conviction, and the Court of Appeals of Maryland reversed the conviction. The Court found that the police swabbing his mouth constituted an unreasonable search, and the physical collection of DNA constituted an unlawful seizure, both violations of King’s rights under the Fourth Amendment. The United States Supreme Court granted certiorari to hear the case.

The reasoning behind the majority’s decision is quite simple: in terms of such a DNA swab, the harm done to the arrestee is nominal compared to the benefit it provides to the arresting agency. The Court cited five main reasons why this DNA identification is necessary to aid the arresting agency:

1. To properly identify the arrestee;
2. To “ensure that the custody of an arrestee does not create inordinate risks for facility staff, for the existing detainee population, and for [new detainees]”, since “DNA allows officers to know the type of person being detained”;
3. To ensure that an arrestee doesn’t flee, since an arrestee who has not yet been caught for a previous crime is more likely to flee;
4. To assist the judge in assessing the arrestee’s threat to the public while determining bail; and
5. To potentially free a person who is wrongfully imprisoned for the past crime that the arrestee committed.

In its opinion, the majority offered a slew of cases where an arrestee’s constitutional rights were found to be second to the will of the police. The Court noted that since the police presumably had probable cause to arrest person, they also have probable cause to swab his DNA. The Court did recognize the Fourth Amendment rights of arrestees, but only with regard to the physical invasiveness of the buccal swab, which they found to be minimal.

However, the Court failed to consider the intangible invasion of privacy that occurs when a person’s DNA is swabbed, being that DNA contains the information about a person’s very being. While it is true that the type of DNA testing in question tests only “junk DNA” which theoretically does not contain personal or medical information, the concept is still the same. Perhaps an even realer implication is this: Since we are OK with swabbing the mouths of people who are legally not (yet) guilty of a crime, in the interest of solving crime, why stop there? Why not take a DNA swab of anyone who obtains a driver’s license, or who turns 18, or who flies on an airplane? It is quite clear that this type of DNA sampling is just a vehicle for solving past crimes, which is an area that the Court historically does not provide for. Justice Scalia, in his dissent, summed it up best: “perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.”

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