Supreme Court Watch: DNA Evidence Collection From Arrestees Is Reasonable Under The Fourth Amendment

In a 5 to 4 decision, a sharply divided Supreme Court holds that the Fourth Amendment permits law enforcement to obtain a DNA sample from any person arrested for a "serious" crime without a search warrant; the Court reversed the Court of Appeals of Maryland determination that DNA taken from defendant King when he was booked on assault charges was an unreasonable search when used later to tie the defendant to an unsolved rape case, in Maryland v. King, 569 U.S. _, 133 S.Ct. 1958 (2013) (No. 12-207)

On June 3, 2013, the Supreme Court decided that the Fourth Amendment was not violated when law enforcement obtains a DNA sample from an arrestee of a serious offense without a search warrant. On the divided ruling, there was no dispute that the use of "a buccal swab on the inner tissues of a person’s cheek in order to obtain DNA samples is a search." The majority and minority disagreed whether the search was reasonable under the Fourth Amendment and whether a search warrant was required. According to the majority, "The advent of DNA technology is one of the most significant scientific advancements of our era." Maryland v. King, 569 U.S. _, 133 S.Ct. 1958 (2013). The use of DNA samples in the criminal justice process is pervasive:

All 50 States require the collection of DNA from felony convicts, and respondent does not dispute the validity of that practice. Twenty-eight States and the Federal Government have adopted lawssimilar to the Maryland Act authorizing the collection of DNA from some or all arrestees.
King, 569 U.S. _ (citations omitted). Most courts have upheld the collection and use of DNA evidence but a few, like the Court of Appeals of Maryland had not. See also Lower Court Division On The Collection Of DNA Samples From Arrestees.

Summary Facts

In April 2009, defendant Alonzo Jay King was arrested and charged with first and second-degree assault. Pursuant to Maryland DNA Collection Act, Md. Pub. Saf. Code Ann. § 2–501 et seq., providing for the collection of DNA samples from arrestees for crimes of violence and burglaries), 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. His motion to suppress the DNA evidence under the Fourth Amendment was denied. Following his jury trial conviction, a divided court of appeals reversed. 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. The Court heard argument on February 26, 2012. See Supreme Court Watch: Summary Of Oral Argument In Maryland v. King.

Majority Analysis

As Justice Anthony Kennedy, writing for the majority, summarized the holding:

In light of the context of a valid arrest supported by probable cause respondent’s expectations of privacy were not offended by the minor intrusion of a brief swab of hischeeks. By contrast, that same context of arrest gives rise to significant state interests in identifying respondent not only so that the proper name can be attached to his chargesbut also so that the criminal justice system can make informed decisions concerning pretrial custody. Upon these considerations the Court concludes that DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure. When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing acheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.
King, 569 U.S. _. Joining Justice Kennedy in the majority were Chief Justice John G. Roberts, Jr., and Justices Clarence Thomas, Stephen G. Breyer, and Samuel Alito, Jr.

The majority noted that the search was minimal, "a light touch on the inside of the cheek." Could the search be justified under the Fourth Amendment under "special law enforcement needs"? King, 569 U.S. _ (quoting Illinois v. McArthur, 531 U.S. 326, 330 (2001) ("When faced with special law enforcement needs, diminished expectations of privacy, minimal intrusions, or the like, the Court has found that certain general, or individual, circumstances may render a warrantless search or seizure reasonable.”)). The majority noted the effectiveness of DNA in identification:

A DNA profile is useful to the police because itgives them a form of identification to search the records already in their valid possession. In this respect the use ofDNA for identification is no different than matching anarrestee’s face to a wanted poster of a previously unidentified suspect; or matching tattoos to known gang symbols to reveal a criminal affiliation; or matching the arrestee’s fingerprints to those recovered from a crime scene. See Tr. of Oral Arg. 19. DNA is another metric of identification used to connect the arrestee with his or her publicpersona, as reflected in records of his or her actions that are available to the police.
King, 569 U.S. at _.

The majority concluded that substantial government interests were implicated by the Maryland DNA Collection Act. The interests identifed by the majority included (1) determining the identity of the arrestee; (2) providing information about who the arrestee is to avoid risks to the custodians and prison population; (3) ensuring future appearance in the criminal justice process and discouraging flight; (4) permitting "an assessment of the danger" the arrestee "poses to the public" in determining "whether the individual should be released on bail"; and (5) promoting "the interests of justice" by "freeing a person wrongfully imprisoned for the same offense." King, 569 U.S. _.

Against the government interest, the invasion of the privacy interest was minimal. The majority compared the intrusion to obtaining fingerprints and booking photographs at the time of arrest:

DNA identification is an advanced technique superior tofingerprinting in many ways, so much so that to insist on fingerprints as the norm would make little sense to eitherthe forensic expert or a layperson. The additional intrusion upon the arrestee’s privacy beyond that associated with fingerprinting is not significant, and DNA is a markedly more accurate form of identifying arrestees. A suspect who has changed his facial features to evade photographic identification or even one who has undertaken the more arduous task of altering his fingerprints cannot escape the revealing power of his DNA.
King, 569 U.S. _ (citation omitted). According to the majority, the search was reasonable without the requirement of a warrant given the susbtantial government interest and minimal intrusion at or near the time of arrest for a serious offense.

Dissent

The impassioned dissent sharply disagreed that the Fourth Amendment permitted the non-individualized search. As Justice Antonin Scalia wrote:

Whenever this Court has allowed a suspicionless search, it has insisted upon a justifying motive apart from the investigation of crime.

It is obvious that no such noninvestigative motive exists in this case. The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous. And the Court’s comparison of Maryland’s DNA searches toother techniques, such as fingerprinting, can seem apt only to those who know no more than today’s opinion has chosen to tell them about how those DNA searches actually work.
King, 569 U.S. _ (Scalia, J., dissenting). He was joined in dissent by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan. The dissent challenged that DNA sampling was reasonable or that its imposition on the suspect was no different in kind from other acceptable searches. The dissent questioned whether there was any real "noninvestigative motive" at stake in the case. The dissent focused on the DNA collection as a suspicionless search: "No matter the degree of invasiveness, suspicionless searches are never allowed if their principal end is ordinary crime-solving." King, 569 U.S. _ (Scalia, J., dissenting).

Summary

As noted at the oral argument, no prior Supreme Court case had addressed the issue presented in the case. One key question raised in the briefs and at argument concerned what framework of analysis would be applied under the Fourth Amendment. See Supreme Court Watch: Summary Of Oral Argument In Maryland v. King. By considering the "special needs of law enforcement" in the context of the collection of a DNA sample to an arrestee, one question concerns whether this principle will be extended to other law enforcement circumstances to assess the reasonableness of a search? The divergence on this issue was highlighted by the majority and dissent. As the majority explained:

Once an individual has been arrested on probable cause for a dangerous offense that may require detention before trial, however, his or her expectations of privacy and freedomfrom police scrutiny are reduced. DNA identification like that at issue here thus does not require consideration of any unique needs that would be required to justify searching the average citizen. The special needs cases, though in full accord with the result reached here, do not have a direct bearing on the issues presented in this case, because unlike the search of a citizen who has not been suspected of a wrong, a detainee has a reduced expectation of privacy.
King, 569 U.S. _. The dissent questioned this justification:

The Court’s insistence that our special-needs cases “do not have a direct bearing on the issues presented in this case” is perplexing. Why spill so much ink on the special need of identification if a special need is not required? Why not just come out and say that any suspicionless search of an arrestee is allowed if it will be useful to solve crimes? The Court does not say that because most Members of the Court do not believe it. So whatever the Court’s major premise—the opinion does not really contain what you would call a rule of decision— the minor premise is “this search was used to identify King.” The incorrectness of that minor premise will therefore suffice to demonstrate the error in the Court’s result.
King, 569 U.S. _ n.1 (Scalia, J., dissenting) (citation omitted).

For copies of the briefs or 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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