Supreme Court Watch: Oral Argument Preview On DNA Arrestee Collection Case

Argument will focus on the warrantless collection and analysis of DNA samples from arrestees under the Fourth Amendment; some of the issues in the case include whether individualized suspicion is required before a sample may be collected, whether any Fourth Amendment exceptions apply; the weighing of government interests against the degree of intrusion of individual privacy interests; and whether the obtaining of booking fingerprints is analogous, in Maryland v. King (No. 12-207) (Nov. 9, 2012)

Tomorrow, on Tuesday, February 26, 2012, the Supreme Court hears oral argument in a case which raises questions about the ability of the government to collect and analyze DNA samples and information in the absence of a conviction under the Fourth Amendment. In Maryland v. King (No. 12-207) (Nov. 9, 2012), the question presented is: “Does the Fourth Amendment allow the States to collect and analyze DNA from people arrested and charged with serious crimes?”

DNA Collection Process

In 2002, Maryland enacted a statute requiring the collection of DNA samples of individuals convicted of a felony. In 2008, the Maryland DNA Collection Act was amended to provide for the collection of DNA samples from arrestees for crimes of violence and burglaries. See Md. Pub. Saf. Code Ann. § 2–501 et seq; see also Maryland Public Safety Section 2-504(a)(1)(i) (providing that a "DNA sample [is] collected either at the time of sentence or on intake to a correctional facility, if the individual is sentenced to a term of imprisonment"). The federal government and most states have enacted comparable statutes which provide for the collection of DNA (deoxyribonucleic acid) of arrestees for certain offenses. See, e.g., Lower Court Division On Collection Of DNA Samples From Arrestees (listing several examples).

Summary Facts

In April 2009, defendant Alonzo Jay King was arrested and charged with first and second-degree assault. Pursuant to the Maryland law, a DNA sample was obtained upon his arrest as the first-degree charge was a covered offense. The sample, which was obtained after the defendant appeared in court and a judicial officer found probable cause supported the charge, confirmed a match with DNA evidence obtained during an unsolved rape of a 53-year-old woman six years earlier. Ultimately, the defendant pled guilty to second-degree assault, a misdemeanor (which is not otherwise subject to DNA collection under the Maryland DNA Collection Act). See Brief of Respondent, at 9 n.6.

Based on the DNA match, defendant King was indicted for first-degree rape and related charges. The Maryland DNA Collection Act allows the DNA sample collected upon arrest to provide probable cause but is inadmissible at trial, a search warrant was issued to obtain a second DNA sample, which confirmed the initial match. His motion to suppress the DNA evidence under the Fourth Amendment was denied. Following his jury trial conviction, a divided court of appeals reversed, holding that the state statute:

which allows DNA collection from persons arrested, but not yet convicted, for crimes of violence and burglary, is unconstitutional, under the Fourth Amendment totality of the circumstances balancing test, as applied to the relevant facts of this case because King’s expectation of privacy is greater than the State’s purported interest in using King’s DN A to identify him for purposes of his 10 April 2009 arrest on the assault charges. Concluding that, in King’s circumstances, his DNA was collected unconstitutionally, and the evidence presented at trial should have been suppressed as “fruit of the poisonous tree”….

King v. State, 425 Md.550, 555, 42 A.3d 549, 552 (2012). The State of Maryland's motion for reconsideration was denied by the state court. The State of Maryland then requested a stay before the Supreme Court pending resolution of its petition for writ of certiorari. Chief Justice John G. Roberts, Jr. granted the stay. See Maryland v. King, 567 U. S. _ (2012) (No. 12A48) (Roberts, C.J., in chambers) (July 30, 2012); see also DNA Evidence Collection Conflict Noted by Chief Justice Opinion In Chambers. On November 9, 2012, the Supreme Court granted certiorari review. See Maryland v. King (No. 12-207) (Nov. 9, 2012); see generally Supreme Court Watch: Constitutional Challenge To The Collection Of DNA Evidence From Arrestees.

Fourth Amendment Standard

In the absence of a recognized exception under the Fourth Amendment, how will the Court weigh the interests of the government and individual under totality of the circumstances under the Fourth Amendment? Is the collection of DNA samples from arrestees reasonable? The State of Maryland contends that the “arrestee provisions of the DNA Collection Act authorize a constitutionally reasonable search under a totality of the circumstances analysis,” with a minimal degree of intrusion (“a quick and painless rubbing of the check”) from an individual who has been arrested considered against a “significant” state interest (1) “to accurately identify the people it has lawfully taken into custody”; (2) supervise pretrial detainees; (3) obtain “immutable” identification information “when it can do the most good” and promote “more efficient criminal investigations”; and (4) expand the DNA “database in a reasonably targeted fashion, avoid[] squandering investigational resources, spare[] innocent persons from becoming mistaken suspects, and prevent[] additional crimes that might otherwise occur.” Brief of Petitioner, at 8-10, 22.

One issue noted in the briefs concerns how similar or dissimilar the obtaining of fingerprints at the time of booking is to obtaining a DNA sample from an arrestee. Generally, fingerprinting has been held to be permissible under the Fourth Amendment. See generally United States v. Kelly, 55 F.2d 67 (2d cir. 1932); see also Smith v. United States, 324 F.2d 879, 882 (D.C. Cir. 1963).

Respondent King contends the warrantless search was obtained without any relation to the first-degree assault crime for which he was arrested. He was then arrested on a prior rape offense based solely on that match. The respondent argues that the warrantless and suspicionless collection and analysis of the DNA sample violated the Fourth Amendment, as the state court concluded. The respondent contends the Court should not create an exception under the Fourth Amendment to permit a blanket, warrantless search for “a new technology.” Respondent’s Brief, at 13. No other Fourth Amendment exception justifies the DNA collection and a new exception should not be recognized. The respondent distinguishes fingerprints obtained upon booking as qualifying under the “special needs” doctrine of the Fourth Amendment. The Fourth Amendment requires individualized suspicion based on a search warrant before the search for a DNA collection from a human body may be conducted. Under a balancing analysis, the government interest in solving crimes does not justify obtaining warrantless samples from individuals who are arrested.

Numerous amicus briefs have been filed in the case, which are reproduced below along with the merits briefs of the parties. For further case information, see prior blog posts on King v. Maryland; for further information on the use of DNA evidence, see prior posts concerning DNA Evidence.

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Merits Briefs

Amicus Curiae Briefs on the Merits

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Certiorari Petition Briefs

Amicus Curiae Briefs

  • Sept. 4, 2012: Brief of the Brief Amici Curiae of Maryland Chiefs of Police Association, Inc., Maryland Sheriffs’ Association, Inc., And Police Chiefs’ Association of Prince George’s County, Maryland, Inc. in Support Of Petitioner
  • Sept. 12, 2012: Brief Amicus Curiae of Steve Cooley, District Attorney for the County of Los Angeles in Support of Petitioner
  • Sept. 17, 2012: Brief Amicus Curiae of DNA Saves in Support of Petitioner
  • Sept. 17, 2012: Brief Amici Curiae of Maryland Legislators in Support of Petitioner
  • Sept. 17, 2012: Brief Amicus Curiae of National District Attorneys Association in Support of Petitioner

State Court Ruling and Record

  • April 24, 2012: Maryland Court of Appeal Opinion Under Review: King v. State, 425 Md.550, 42 A.3d 549 (2012)
  • Supreme Court Docket

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