More than a year ago the Maryland Court of Appeals threw out Alonzo King’s rape conviction after ruling that police had illegally seized his DNA sample. Mr. King was arrested on an unrelated assault charge in 2009 and his DNA was collected under authority of a state law, which allowed cops to collect such samples from anyone arrested for a serious offense. This sample was fed into an FBI cold case database several months later and it matched an unidentified sample taken from the scene of a 2003 rape. Arrest and prosecution followed soon thereafter, and Mr. King suffered the same fate that most defendants do when trying to fight a case with inclulpatory DNA evidence, as he was found guilty and later sentenced to life in prison. Shortly after the Court of Appeals vacated King’s guilty plea the United States Supreme Court agreed to hear the case on a writ of certiorari. During the past year Mr. King, and to a lesser extent state law enforcement officers, Governor O’Malley, Attorney General Gansler, and anyone with direct or indirect concerns about our civil liberties have been on edge waiting to hear from the Court, and as of this week the wait is over.
In a five to four decision the Supreme Court ruled that the Maryland DNA statute does not violate our Fourth Amendment rights, and law enforcement officials are free to sample the DNA of anyone arrested for a serious crime. The majority opined that an arrestee’s expectation of privacy is not offended by the minor intrusion of a brief swab of his cheeks, and by contrast the government has a significant interest in identifying the arrestee. The government, according to majority, must be able to accurately identify the arrestee so that the proper name can be attached to his charges, and also so the criminal justice system can make a fully informed decision about the arrestee’s pretrial custody status, i.e. the amount of his bail. The majority then compared DNA sampling to photographing, and the universally accepted, although never by Supreme Court opinion, practice of fingerprinting. The four dissenting Justices deferred to Justice Scalia to pen the dissent, which explained and discarded the majority’s 28-page opinion in 18 pages so brilliant that it was actually easy reading. Needless to say if you don’t have time to read both, start your reading after the words “it is so ordered”.
Justice Scalia pointed out that the DNA collection statute had absolutely nothing to do with identifying the arrestee. DNA samples do not, and with current technology cannot help law enforcement for weeks if not months, which is long after the arrestee has been identified by the booking process and after his pretrial release status has been determined. The comparison to photographing and fingerprinting the arrestee is hardly compelling, as the current fingerprint database can produce identification results in minutes. Scalia logically explained that the DNA CODIS database used to solve cold cases is only effective if the identity of the owner of a new sample is already known. So collecting these new samples has nothing to do with identifying the arrestee, and everything to do with solving cold cases. And under the Fourth Amendment our founding fathers rejected the idea that citizens should be forced to give up any privacy rights absent probable cause or special needs of the government. Special needs or interests may include instituting a lower degree of privacy in certain areas such as schools or airports, but normal law enforcement goals such as solving cold cases has never been considered a special governmental need, and a person should not be forced to give up his or her privacy to satisfy this need. Perhaps Scalia’s most compelling argument is that the majority’s decision will only affect those who have been arrested and later determined to be innocent, as arrestees who are convicted of serious crimes are required to submit to DNA testing upon conviction anyway.
This decision is of particular interest to the Blog due to the amount of so-called serious cases such as assaults and burglaries that we handle. As a result we will continue to follow how this decision affects future legislation, and another post may be forthcoming. In the meantime, contact Benjamin Herbst at The Herbst Firm for a free consultation from an experienced criminal defense attorney about any legal issues you may be facing.