Question Presented (from cert petition):
Does the Fourth Amendment allow the States to collect and analyze DNA from people arrested and charged with serious crimes?
Lower court opinion (King v. State, 425 Md. 550, 42 A.3d 549 (2012))
Under Maryland law, DNA Collection Act, Md. Code Ann., Pub. Safety §2-504, an arrestee’s DNA can be collected and submitted to a database – which in King’s instance matched up with an otherwise unrelated rape committed some 6 years earlier. After conviction of the rape, he appealed and the Maryland Court of Appeals reversed, holding
that King, who was arrested, but not convicted, at the time of his first compelled DNA collection, generally has a sufficiently weighty and reasonable expectation of privacy against warrantless, suspicionless searches that is not outweighed by the State’s purported interest in assuring proper identification of him as to the crimes for which he was charged at the time. The State (through local law enforcement), prior to obtaining a DNA sample from King following his arrest on the assault charges, identified King accurately and confidently through photographs and fingerprints. It had no legitimate need for a DNA sample in order to be confident who it arrested or to convict him on the first-or second-degree assault charges. Therefore, there was no probable cause or individualized suspicion supporting obtention of the DNA sample collection for those charges. We conclude that the portions of the DNA Act authorizing collection of a DNA sample from a mere arrestee is unconstitutional as applied to King. Although we have some trepidation as to the facial constitutionality of the DNA Act, as to arrestees generally, we cannot exclude the possibility that there may be, in some circumstances, a need for the State to obtain a DNA sample to identify an arrestee accurately.
425 Md. at 552-53. The holding, then, might be read as narrow: the Act violated the 4th A “as applied,” not on its face, because King had a right to privacy in his DNA while law enforcement didn’t need to collect his DNA – the state had enough evidence to ID King as the person under arrest independent of the DNA Collection Act. King’s right to privacy outweighed state interests. On the other hand, the lower court all but said the Act was unconstitutional on its face, reserving the merest possibility of collection in some unspecified circumstance. The court’s stress on the absence of “probable cause or individualized suspicion” underscores the breadth of the holding, because on the one hand, if demonstrable cause exists, the state can always obtain a warrant; and on the other, if a warrant is needed but cause isn’t demonstrable, then the state can’t obtain the sample. In any event, to whatever extent the lower court is positing an arrestee’s pre-conviction right to privacy in his DNA, the state is having none of it: “The only information being obtained from King by the analysis of his buccal swab goes to his biological identity, and arrestees have no objectively reasonable expectation of privacy in their identities.” (Cert. Pet, p. 18.) The state doesn’t require cause to take an arrestee’s fingerprints; DNA is a means of identifying the arrestee in custody, same as fingerprints; therefore, cause isn’t necessary to DNA collection – or so syllogizes the state. Does an arrestee have a privacy interest in his or her DNA profile which is, after all, more revealing than mere fingerprints? And if so, does the state’s interest in identifying those in custody and in criminal investigation outweigh that interest?
The state’s untrammeled authority to collect DNA upon conviction isn’t disputed, § 165.76; rather, there’s a dispute exemplified by lower-court split of authority as to what must be shown post-arrest, pre-conviction. Resolution is now apparently on the horizon. Note the recent failure to pass a similar effort in Wisconsin, 2011 SB 214 (“This bill requires law enforcement agencies to collect a biological specimen for DNA analysis from every adult who is arrested for a felony or for fourth-degree sexual assault, lewd and lascivious behavior, failure to submit a required biological specimen, or exposing genitals to a child for sexual gratification and from each juvenile taken into custody for certain sexual assault offenses.”) Note, as well, this recent observation by the Wisconsin court of appeals: “Unless a person consents to giving a sample of his or her DNA, or there are exigent circumstances, or there are other exceptions that are not material here, a DNA sample may only be collected by a search warrant supported by probable cause,” State v. Ward, 2011 WI App 151, ¶10, 337 Wis. 2d 655, 807 N.W.2d 23. Whether legislative authorization is required for DNA collection or the mere fact of arrest establishes an “exception,” may or may not be resolved by this grant.