BY LINDSEY MAULTASCH — On April 10, 2009, Alonzo Jay King, Jr. was arrested in Maryland on first- and second-degree assault charges. Pursuant to the Maryland DNA Collection Act, a swab was used to take a sample of King’s DNA. On July 13, 2009, King’s DNA profile was uploaded to the Maryland DNA database. Shortly thereafter, on August 4, 2009, Detective Barry Tucker received notice that there was a “hit” on King’s DNA profile in an unsolved rape case. In that case, on September 21, 2003, an unidentified man broke into a woman’s home and raped her. She could not identify her attacker at the time and the police never found him.
Using the DNA “hit” as the only evidence of probable cause, a grand jury indicted King for ten charges arising from the rape, including first-degree rape. Detective Tucker obtained a search warrant based on that probable cause to collect a second DNA sample from King, which also matched the sample from the unsolved rape. King was eventually convicted and sentenced to life in prison without the possibility of parole. The Court of Appeals of Maryland issued a writ of certiorari on its initiative.
The Court of Appeals held that the Maryland DNA Collection Act, as applied to King, was unconstitutional in violation of King’s Fourth Amendment right to be free from unreasonable searches and seizures. Using the Supreme Court decision United States v. Knights, the Maryland court found that King’s subjective expectation of privacy outweighed the government’s purported interests. The court reasoned that DNA contains a massive amount of deeply personal information, unlike fingerprints, and the fact that the Act only uses the “identification” parts of the DNA does not change the invasive nature of the search. Moreover, the court held that the government’s interest in identifying King for the purposes of the crime for which he was arrested did not outweigh King’s privacy interest.
The Supreme Court granted certiorari in Maryland v. King and, on February 26, 2013, heard oral argument. During oral argument, Justice Alito stated, “I think this is perhaps the most important criminal procedure case that this court has heard in decades.” In discussing the DNA swab and subsequent profile, Justice Ginsburg pointed out that “this is a very reliable tool,” but expressed doubt as to whether it could survive Fourth Amendment scrutiny.
While the Act at issue in Maryland only applies to those arrested for a violent crime, presumably, if upheld, it could extend to all arrestees. Under the Supreme Court’s jurisprudence, the nature of the crime is generally irrelevant to the protection afforded under the Fourth Amendment. Thus, during the state’s argument, Chief Justice Roberts asked, “under your theory, there’s no reason you couldn’t undertake this procedure with respect to anybody pulled over for a traffic violation?”
Furthermore, it remains unclear whether the search of an arrestee’s DNA will be evaluated under the “special needs” doctrine defined in United States v. Knights, which the Maryland Court of Appeals employed, or under normal Fourth Amendment doctrine using Katz v. United States. Regardless of what doctrine is used, the Court will decide whether one has a constitutionally recognized expectation of privacy in his or her DNA that society recognizes as reasonable. While proponents of the DNA testing argue that it uses only a portion of one’s DNA, which purportedly only divulges one’s identity, it is important to consider, as the Maryland Court of Appeals did, that searches are typically dependent, not on what they actually reveal, but what they might reveal. Thus, the sample that is taken from arrestees will still contain all of one’s genetic information. This is one reason opponents distinguish DNA swabs from fingerprints conducted at the time of booking.
Under the special needs doctrine, the government’s interest is weighed against one’s privacy interest. The Supreme Court has rejected the general interest in solving crimes, past, present, or future, as an interest that may override an individual’s expectation of privacy. The state in Maryland v. King argued that another government interest is the need to identify arrestees. Presently, DNA testing is not yet advanced enough to produce a result before arrestees must be released from custody. However, at oral argument it was pointed out that there could be a day in the near future when that is possible. Acknowledging this problem, Chief Justice Roberts asked, “How can I base a decision today on what [the state] tell[s] me is going to happen in two years?”
Regardless of the analysis the Supreme Court uses, if upheld, the decision will have drastic consequences for law enforcement and individuals’ privacy interest in their bodies. Is the hope of solving a cold case worth the risk that any arrestee’s DNA is entered into a database? Should DNA testing be the fingerprinting of the future, or is there a serious risk in allowing the state to have access to our most private, biological information? In a society where privacy is becoming a dated concept, one can only hope that the Supreme Court will decide that we do still enjoy constitutionally protected privacy in our own genetic information.
