The US Supreme Court on June 3, 2013 in Maryland v. King (No. 12–207) and in a 5-4 narrow decision legalized taking the arrestee’s DNA sample along with the fingerprinting and mug shots.

The case was initiated in the MD State court from the collection of DNA in 2009 from Alonzo Jay King Jr. after his arrest on assault charges in Wicomico County, Md.  King’s DNA sample collected by swabbing of his cheek, positive matched evidence from a 2003 rape case, and he was convicted of that crime which was unresolved. The MD Court of Appeals ruled that the State law authorizing collection of DNA from people who had been arrested but not yet convicted violated the Fourth Amendment’s prohibition of unreasonable searches.

The federal government and 28 other states authorize taking of the DNA sample and the government and the law enforcement officials have traditionally argued that such practice is an invaluable and indispensible in solving unresolved cold cases.

Justice Kennedy articulating the majority’s ruling opined “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 a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.”  The majority also argued that such was necessary to identify the suspect that is: the “quick and painless” swabbing procedure was a search under the Fourth Amendment, meaning it had to be justified as reasonable under the circumstances given “the need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody.”

The Court further ruled that the DNA sampling “is no different than matching an arrestee’s face to a wanted poster of a previously unidentified suspect; or matching tattoos to known gang members to reveal a criminal affiliation; or matching the arrestee’s fingerprints to those recovered from a crime scene.”

Justice Scalia delivering a strongly worded dissent argued that the Fourth Amendment forbids searches and seizure without reasonable suspicion to gather evidence about an unrelated crime, a point the majority did not dispute but did not highlight either.  Specifically  “make no mistake about it: because of today’s decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason.”

He articulated further that the suspect’s (King) identification was never at issue as he was already identified by his full name, race, sex, height, weight, address, etc.  That the purpose of the MD law upheld by the majority was not for identification purposes but a tool for “an official investigation into a crime.”  The MD statue in question allowing DNA swapping was also limited for indentifying missing persons or human remains and not a sweeping authority to test all arrestees.  Justice Scalia argued “[s]olving crimes is a noble objective […] but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law enforcement searches.  The Fourth Amendment must prevail.”

He also pointed out that in reality after King’s conviction for the arrested offense, assault, as a convicted felon his DNA sample would have been collected regardless as all fifty states require such.  Thus no constitutional issue would have been present and the law enforcement would have obtained the DNA sample needed to solve the cold case.

On a more sardonic note Justice Scalia opined as a strict constitutionalist that: the proud men who wrote the charter of our liberties would not have been so eager to open their mouths for royal inspection.

The majority opinion is troubling, as both the law enforcement agencies and now the high court have aligned on the side of more state intrusion, surveillance, and oversight.  The use of drones by the police outside and above private homes suspected of criminal activity has been deemed legal.  Recently the NSA practice of collecting and analyzing phone records of the population en mass was brought forward and under congressional scrutiny.  The question becomes when does the line between one’s constitutional and privacy rights and the state’s need to monitor its citizens become blurred and crossed.

Arguably — it already has.

Categories: Criminal Defense.