DNA Collection and the Fourth Amendment-Maryland v. King

August 30, 2012

On July 30, the US Supreme Court granted a stay of judgment to the state of Maryland in the case of Maryland v. King (2012 WL 3064878, Petition for Writ for Certiorari found at 2012 WL 3527847).  At issue is whether the warrantless collection of DNA samples prior to conviction pursuant to the Maryland DNA Collection Act (MD PUBLIC SAFETY § 2-501, et. seq.) is constitutional under the Fourth Amendment.

The Maryland DNA Collection Act (pre-conviction DNA collection is effective until January 1, 2014) authorizes the collection of DNA samples from individuals charged with “a crime of violence” or burglary or attempted burglary. (MD PUBLIC SAFETY 2-504(3)).

In 2009, King was arrested on assault charges and his DNA was collected, analyzed and entered into Maryland’s DNA database pursuant to the Act.  Pending his trial on that charge (for which he was ultimately convicted), his DNA was matched to a sample collected during the investigation of a 2003 unsolved rape.  The match provided the sole probable cause for a grand jury indictment.   He was convicted of first-degree rape and sentenced to life in prison.

In a fairly narrow ruling, the Maryland Court of Appeals held that King’s privacy interests outweighed the state’s interest in assuring proper identification of him as to the crimes for which he was charged at the time.  However, the Court noted that it could foresee a different conclusion based on different facts:

 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.

King v. State, 42 A3d 549 at 553.

If the US Supreme Court grants certiorari for this case, how is it likely to rule?  I ran the following search in U.S. Supreme Court Cases on WestlawNext (SCT on Westlaw Classic):

 di(“fourth amendment” privacy /s arrest!)

 I then sorted by “most cited” and produced several landmark Fourth Amendment cases within the first 20 hits, including Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868 and Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826.

In a second search, I tried the following in the same content:

 privacy “fourth amendment” /p d.n.a. blood finger-print urine breath (bod! /3 fluid)

 Again I sorted by “most cited” and again produced Schmerber, along with Skinner v. Railway Labor Executives’ Ass’n., 489 U.S. 602, 109 S.Ct. 140 and Davis v. Mississippi, 394 U.S. 721, 89 S.Ct. 1394.   These would all likely be central to the Court’s analysis of privacy rights versus public safety.

But Davis, which addresses the collection of fingerprints during detention, may provide particularly valuable insight into the Court’s balancing of pre-conviction DNA collection and the Fourth Amendment:

Fingerprinting involves none of the probing into an individual’s private life and thoughts that marks an interrogation or search. Nor can fingerprint detention be employed repeatedly to harass any individual, since the police need only one set of each person’s prints. Furthermore, fingerprinting is an inherently more reliable and effective crime-solving tool than eyewitness identifications or confessions and is not subject to such abuses as the improper line-up and the ‘third degree..’

Davis v. Mississippi, 394 U.S. 721, 727 (1969).