By Gerald M. Bender, Litigation Division Manager, City Attorney’s Office, Tulsa, Oklahoma; and Jason T. Seay, Assistant City Attorney, Litigation Division, City Attorney’s Office, Tulsa, Oklahoma
he effect of DNA evidence upon the criminal justice system cannot be understated. It has revolutionized criminal investigations and adjudications—through both exoneration and conviction.1 Every state in the United States, and the federal government, has some statutory body creating and regulating the administration of, and sampling for, DNA2 databases used in solving various classes of criminal offenses.3 Every state requires the collection of DNA from felony convicts.4 Despite such statutory databases existing since 1989,5 the U.S. Supreme Court did not weigh the constitutionality of them until June 2013, in the seminal case of Maryland v. King.6 Before then, the nation’s courts reached no unanimous finding as to the constitutionality of such statutory regimes.7 The King case, a 5-4 decision, presents the first glimpse of what law enforcement may expect from future rulings regarding the constitutionality of taking DNA evidence from an arrestee—and by implication the admissibility of such evidence in a criminal proceeding.8 This article introduces the King case and some issues that will arise from it.
The Facts: In King, the Court considered a constitutional challenge to the Maryland DNA Collection Act. King was arrested for the criminal offense of threatening “a group of people with a shot gun.”9 He was booked into jail, and, as part of the normal booking routine, a DNA sample was taken from him with a buccal swab.10 That sample was uploaded into Maryland’s DNA database and came back as a match to a sample taken from a rape victim in 2003.11 A grand jury indicted King for the 2003 rape based upon that evidence.12 He sought to suppress the evidence on the grounds that the DNA collection was an unconstitutional search.13 The trial court overruled the request, and King was ultimately found guilty of the 2003 rape. The U.S. Supreme Court accepted the case to address a singular, novel issue: whether the Fourth Amendment prohibits the collection and analysis of DNA samples from persons arrested on, but not yet convicted for, felony charges.14
The Majority’s Reasoning: In addressing this issue, the majority weighed the government’s interests at stake in collecting an arrestee’s DNA sample against the individual’s privacy rights.15 In doing so, the Court narrowed its considerations based on two key observations. First, “the fact that [the] intrusion [for obtaining a DNA sample] is negligible…, although it is still a search as the law defines the term.”16 In this regard, the Court repeatedly analogized DNA sampling to taking an arrestee’s fingerprints.17 Second, the “proper processing of arrestees is so important and has consequences for every stage of the criminal process,” and, therefore, “ ‘the governmental interest underlying a station-house search of the arrestee’s person … may in some circumstances be even greater than those supporting a search immediately following arrest.’ ”18
The Court identified five governmental interests:
- Law enforcement must know the identity of the person being arrested and to be tried for the offense of which a person’s prior criminal activity, as reflected by a DNA database, forms part.
- Law enforcement must ensure the custody of an arrestee does not create inordinate risk to facility staff or other detainees, and DNA identification serves as a powerful tool to search prior criminal records to mitigate such a risk.19
- The government has a “substantial interest in ensuring that persons accused of crimes are available for trials[,]” since, the Court reasoned, arrestees awaiting trial for one offense knowing “he has yet to answer for some past crime may be more inclined to flee the instant charges[.]”20
- The government has an interest in knowing the threat an arrestee poses to the public for purposes of determining if, and if so what amount of, bail is appropriate.
- “[T]he identification of an arrestee as a perpetrator of some heinous crime may have the salutary effect of freeing a person wrongfully imprisoned for the same offense.”21
The key theme among these considerations is the notion that the term “identification” is a robust term, encompassing more than just a name, date of birth, weight, and height.22 Rather, it also includes substantive information used to solve crimes. In this regard, and in light of the minimal invasion required to take a DNA sample, the collection of DNA samples as part of a post-arrest booking routine is “ ‘no more than an extension of methods of identification long used in dealing with persons under arrest.’ ”23
In contrast to the compelling government interests in possessing a more robust understanding of the identity of arrestees, one which includes substantive evidence of criminal conduct, the Court considered private interests through a narrow lens. The Court justified its myopic view on the grounds that “a valid arrest for a serious offense is [a] fundamental” and “necessary predicate” to its analysis.24 Although the privacy concerns at issue are “weighty enough” to invoke constitutional scrutiny, “unlike the search of a citizen who has not been suspected of a wrong, a detainee has a reduced expectation of privacy.”25 As such, “particularized suspicion is not categorically required” and mere “diminished expectations of privacy and minimal intrusions” are considered only for purposes of the Court’s analysis.26 The Court reasoned that the collection method at issue is not so intrusive as to violate constitutional proscriptions,27 and arrestees have no constitutionally protected privacy interest in their own DNA in light of the fact that no information “revealing anything beyond identification” may be found in the particular area of DNA analyzed for such purposes.28 The Court therefore held that the taking of the DNA of King after his arrest for a serious offense, as part of a normal, post-arrest booking routine, was not violative of the U.S. Constitution’s Due Process Clause.
The Vigorous Dissent: The dissent, to the point of condescension, strongly disagreed with the majority’s major premise—its understanding of the term “identify.”29 The minority rejected the majority’s robust notion of “identity” as encompassing more than mere identification of an individual through non-genetic means. At bottom, the difference between the justices turns upon for what the DNA sample is used. To the minority, the concept of “identity” does not include evidence taken in order to “identify” arrestees for crime-solving purposes but only for information taken for purposes of ensuring the person arrested is the person who allegedly committed the crime. In parroting the majority’s analogy to fingerprinting arrestee’s, the minority stated that “law enforcement post-arrest use of fingerprints could not be more different from its post-arrest use of DNA. Fingerprints of arrestees are taken primarily to identify them …; the DNA of arrestees is taken to solve crimes …”30 On this basis, the minority would have found the search at issue unconstitutional.
The Implications and Consequences: The King holding is narrow. First, it concerns only DNA samples taken after an arrest. It does not sanction the warrantless taking of DNA samples prior to arrest. Second, it concerns only “those arrested ‘for serious offenses’ ”31—in the case before the Court, an assault with a shotgun. As such, the Court left open the possibility that a warrantless search for DNA from an arrestee’s body may be unconstitutional if the crime for which the arrest was effectuated is not “serious.” The King opinion should therefore not be read to permit DNA collection by law enforcement for any reason, or no reason at all, or from just anyone. The holding is properly understood in its narrowest sense, that is, to facts exceedingly similar to those before the Court.
The Court’s analysis leaves open gaps to be further explored by U.S. courts. For example, it leaves open the logical possibility that the privacy interests of a person arrested for a non-violent misdemeanor are greater than one arrested for a serious offense. If so, it is unclear whether a routine, post-arrest booking procedure that includes collecting a DNA sample, regardless of the offense for which the person is arrested, may be unconstitutionally invasive. In addition, it is unclear under King whether more invasive DNA sampling techniques are constitutional as part of a routine, post-arrest booking procedure—such as taking a blood sample, a hair sample, or a skin scrapping. Although the Court made it clear that the minimally invasive collection procedure at issue was ultimately dispositive to its analysis, the Court left open the question as to whether more invasive DNA collection techniques require a warrant, or more, even if such is part of a normal, post-arrest booking procedure.
The Court’s holding also leaves open the question of whether a DNA sample may be taken from an arrestee under similar conditions without statutory authority to do so. For example, some states may statutorily permit the collection of DNA samples from arrestees only for sex crimes but not for other felonious offenses. Extreme caution should be exercised in reading the King opinion broadly enough to permit such a warrantless search outside of statutory authority. First, the offense must be serious and practically mirror the factual scenario faced by the Court in King, rendering the application of such a booking procedure impracticable and subject to an individual officer’s interpretation of the “seriousness” of the offense.
Second, in some states, the state constitution provides a greater degree of protection from warrantless searches than the U.S. Constitution. Serious consideration of substantive state law should be made before determining whether such warrantless taking of DNA samples is put into effect as part of a booking procedure in the absence of statutory authority to do so.
Finally, the Court’s analysis leaves open the question of whether other non-invasive techniques for collection of identifying information from the human body may be permissible without a warrant. For example, a retina scan is minimally invasive and involves an external apparatus to map the unique blood vessel patterns in a person’s retina.32 Yet, unlike DNA identification analysis, a retina scan is a biometric identifier that could be correlated with drug use or serious medical conditions.33 As such, it is unclear under the Court’s analysis in King whether warrantless, post-arrest retina scans—or some other non-invasive method of identification—would be constitutional, even if the person was arrested for a “serious” offense.
It is beyond dispute that DNA analysis has revolutionized crime fighting in the United States. The scope and speed of the technological advances in this scientific field, breathtaking at times, will provide further tools for law enforcement to identify perpetrators, convict the guilty, exonerate the innocent, and prevent further crime. King presents a much-needed, but narrow, ruling on when and how such evidence may be gathered for investigative purposes. Yet, the Court’s analysis leaves open significant unresolved questions lower courts and law enforcement will be forced to grapple with for decades to come. Law enforcement agencies should be guardedly hopeful that their current booking routines pass constitutional muster must be reticent to assume the King Court’s narrow holding will be expanded in the near future. However, the expansion of the concept of identity to include substantive information for crime-solving purposes will inform the future of search and seizure law for years to come as the concept is applied to information other than DNA that potentially could be collected post arrest. ♦
1See Dist. Atty.’s Office for Third Jud. Dist. v. Osborne, 557 U.S. 52, 55 (2009). Also “The Use of DNA identification in Trials Begins with the Rape and Murder of Two Teenage Girls in 1986 in the Small English Village of Narborough.” Aaron P. Stevens, “Arresting Crime: Expanding the Scope of DNA Databases in America,” 79 Tex. L. Rev. 921 (2001).
2DNA is the acronym for deoxyribonucleic acid. Assn. for Molecular Pathology v. Myriad Genetics, Inc., ___ S. Ct. ___, 106 U.S.P.Q.2d 1972, 2013 WL 2631062, 3 (U.S.). DNA “takes the shape of a ‘double helix.’ Each ‘cross-bar’ in that helix consists of two chemically joined nucleotides. Sequences of DNA nucleotides contain the information necessary to create strings of amino acids used to build proteins in the body.” Id., 2013 WL 2631062 at 1 (Syllabus); see U.S. v. Detroit Timber & Lumber Co., 200 U.S. 321, 337 (1906) (stating syllabus is not part of Court’s opinion). The part of DNA not used for protein coding provides evidence of identity, with near certainty, and is the focus of DNA testing for identity purposes. See Maryland v. King, 569 U. S. ____ (2013), 133 S. Ct. 1958, 1966, 1968, 1979 (2013), http://www.supremecourt.gov/opinions/12pdf/12-207_d18e.pdf (accessed June 24, 2013).
3See Stevens, “Arresting Crime,” 922-23; Robin Cheryl Miller, “Validity, Construction, and Operation of State DNA Database Statutes,” 76 A.L.R.5th 239 (Supp. 2013).
4See King, 133 S. Ct. at 1968.
5“Virginia developed the nation’s first state forensic DNA database in 1989.” Stevens, “Arresting Crime,” 925. The federal CODIS (combined DNA identification system) became active in 1998. Ibid. at 926-27.
6King, 133 S. Ct. 1958.
7Id. at 1966; See also Stevens, “Arresting Crime,” 936-42 (explaining the various legal challenges made to DNA databases over the years).
8There are legitimate concerns over the propriety and efficacy of DNA evidence, which are not presented for purposes of this article. See generally Kristen Bolden, “DNA Fabrication, A Wake Up Call: The Need to Reevaluate the Admissibility and Reliability of DNA Evidence,” 27 Ga. St. U. L. Rev. 409 (2011) (discussing current admissibility standards for DNA evidence and the problems that arise from regarding such evidence, including, significantly, the need for DNA authentication measures); see also Kimberly A. Polanco, “Constitutional Law-the Fourth Amendment Challenge to DNA Sampling of Arrestees Pursuant to the Justice for All Act of 2004: A Proposed Modification to the Traditional Fourth Amendment Test of Reasonableness,” 27 UALR L. Rev. 483 (2005).
9King, 133 S. Ct. at 1966.
10The collection method is known as a buccal swab. “Buccal cell collection involves wiping a small piece of filter paper or a cotton swab similar to a Q-tip against the inside cheek of an individual’s mouth to collect some skin cells.” Id. at 1967-68, quoting Winston v. Lee, 470 U. S. 753, 760 (1985).
11King, 133 S. Ct. at 1966.
12Id. A subsequent DNA sample was taken from King, which was used as
evidence in the rape trial, as well. However, the Court did not find this fact dispositive, as the warrantless taking of the DNA is what formed the basis for the criminal charges.
13King, 133 S. Ct. at 1966.
15Id. at 1969-80.
16Id. at 1969.
17Id. at 1972, 1974, 1976-77, 1980.
18King, 133 S. Ct. at 1974, quoting Illinois v. Lafayette, 462 U. S., 640, 645.
19King, 133 S. Ct. at 1972-73, quoting Florence v. Board of Chosen Freeholders of County of Burlington, 566 U. S. ___ (2012), (quotes omitted).
20King, 133 S. Ct. at 1973-74.
21See Id. at 1977: “[T]here can be little reason to question ‘the legitimate interest of the government in knowing for an absolute certainty the identity of the person arrested, in knowing whether he is wanted elsewhere, and in ensuring his identification in the event he flees prosecution.’ ” quoting Wayne LaFave, Search and Seizure: A Treatise on the Fourth Amendment 5th ed. (St. Paul, Minnesota: West, 2012), 216.
22King, 133 S. Ct. at 1977.
23King, 133 S. Ct. at 1978, quoting U.S. v. Kelly, 55 F.2d 67, 69 (2nd Cir. 1932).
25Id. at 1979.
27Id. at 1979-80.
28Id. at 1980-87 (Justice Scalia dissenting; joined by Justices Ginsburg, Sotomayor, and Kagan).
29King, 133 S. Ct. at 1982-87.
30Id. at 1987.
31The Court took pains to reiterate this fact. Id. at 1965, 1967, 1970, 1973, 1978, 1980.
32See Addie S. Ries, “Comment: America’s Anti-Hijacking Campaign: Will It Conform to Our Constitution?,” 3 N.C. J. L. & Tech. 123, 147 (2001).
33See Eric P. Haas, “Back to the Future? The Use of Biometrics, Its Impact on Airport Security, and How This Technology Should Be Governed,” 69 J. Air L. & Com. 459, 476 (2004).
Please cite as:
Gerald M. Bender and Jason T. Seay, "Maryland v. King—The Constitutionality of DNA Collection for Law Enforcement Purposes," Chief’s Counsel, The Police Chief 80 (September 2013): 16–18.