Download CASE AT A GLANCE FOURTH AMENDMENT Does the Fourth

F ourth A mendment
Does the Fourth Amendment Allow a State to Collect and Analyze DNA
from People Arrested for, But Not Convicted of, Serious Crimes?
CASE AT A GLANCE
Alonzo Jay King Jr. was arrested on assault charges. During booking, officers took a DNA sample with a
buccal (mouth) swab and submitted it for analysis and collection in the state DNA database. The database
later revealed a hit, linking King’s DNA profile to DNA obtained in an earlier unsolved rape case. Based on
the hit, the arresting officer obtained an indictment against King for charges related to the rape. The officer
then obtained a search warrant for a second buccal swab, which also revealed the link to the earlier rape.
Before his trial for the rape, King moved to suppress the results of the second swab, arguing that it violated
the Fourth Amendment.
Maryland v. King
Docket No. 12-207
Argument Date: February 26, 2013
From: Court of Appeals of Maryland
by Steven D. Schwinn
The John Marshall Law School, Chicago, IL
INTRODUCTION
The Fourth Amendment protects against unreasonable searches and
seizures. Courts measure the reasonableness of a search by balancing the intrusion on the person’s expectation of privacy against the
government’s interests in the search. At the same time, the Fourth
Amendment includes a presumption in favor of a warrant and probable cause. Here, the parties disagree about the balance and the
reasonableness of the search. They also disagree about whether
the presumption in favor of a warrant trumps the reasonableness
inquiry.
ISSUE
Does the Fourth Amendment protect a person arrested for a serious
crime from a buccal swab, without warrant or suspicion, to collect
and analyze his DNA?
FACTS
Alonzo Jay King Jr. was arrested in April 2009 in Wicomico County,
Maryland, on first- and second-degree assault charges. On the day
of his arrest, personnel at the Wicomico County Central Booking
facility used a buccal swab to collect a DNA sample. The sample was
sent to the Maryland State Police Forensic Science Division and
later analyzed by a private vendor laboratory. The result, King’s DNA
profile, was uploaded to the Maryland DNA database in July 2009,
pursuant to Maryland law.
That law, the Maryland DNA Collection Act, authorizes state and
local law enforcement to collect DNA samples from individuals who
are arrested, but not yet tried, for a crime of violence, an attempted
crime of violence, a burglary, or an attempted burglary. The act does
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not require an initial warrant, probable cause, or even individualized suspicion apart from that justifying the arrest in the first place.
Samples are collected by an authorized collector trained in the
collection protocols used by the Maryland State Police Crime Laboratory; the samples are sent to the laboratory within 24 hours of their
collection.
The state tests the samples and places the DNA profiles in the
Maryland DNA database or the national database (the Combined
DNA Index System, or CODIS) only upon the first scheduled arraignment of the arrestee, or upon the arrestee’s consent. If the arrestee
is not convicted of the charge or charges that lead to the qualifying
arrest, the state must destroy or expunge the DNA samples and
records. (The act provides for penalties for failure to destroy the
samples or records and for other misuse of them.) But when and
if the police find a “hit”—a match in the database with an earlier
unsolved case—the act permits the original arresting officer to
use the sample as probable cause to obtain a warrant for a second
sample. The original sample is not admissible as evidence at trial in
the earlier case.
Just one month after King’s arrest, in August 2009, the state police
discovered a hit on King’s DNA profile in an unsolved rape case in
2003. That is, police discovered that King’s DNA profile matched a
profile developed from a DNA sample collected in the earlier rape
case. In that case, police officers and medical personnel collected
DNA evidence from the victim soon after the rape. They uploaded
the DNA profile to the Maryland DNA database, but failed to find a
match. Although the victim provided a physical description of the
assailant, the case went unsolved.
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State police notified a local officer of the hit, and the local officer
presented it to a Wicomico County grand jury, which returned an indictment against King for 10 charges related to the earlier rape. The
DNA database hit was the only evidence supporting the indictment.
The officer later obtained a search warrant and collected a second
buccal swab from King. The DNA profile from the second swab also
matched the sample collected from the earlier rape.
King filed a motion to suppress his DNA profile in the Circuit Court
for Wicomico County, arguing that the act violated the Fourth
Amendment and that the state did not comply with the act’s procedures when it collected his DNA the first time. The court denied
his motion.
King then pleaded not guilty to the 2003 rape and appealed the
court’s ruling on the Fourth Amendment. The Maryland Court of
Appeals, the state’s high court, reversed, ruling that the state’s
initial collection of DNA violated the Fourth Amendment and that
therefore the state’s second collection of DNA, as “fruit of the
poisonous tree,” also violated the Fourth Amendment.
CASE ANALYSIS
The Fourth Amendment says,
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and
seizures, shall not be violated, and no Warrant shall issue,
but upon probable cause. …
The touchstone of the Amendment is reasonableness. Courts
measure the reasonableness of a search using a totality-of-thecircumstances approach and balancing the degree to which the
search intrudes upon a person’s expectation of privacy against the
government interest in the search.
At the same time, the Fourth Amendment includes a presumption
that the government must obtain a warrant based on probable cause
prior to executing a search. (Another way of saying this is that reasonableness generally requires a warrant.) Still, the Supreme Court
has carved out a set of narrow exceptions to the warrant requirement. Thus, for example, police need not have a warrant or probable
cause to conduct a search based on a “special need” beyond the
usual need for law enforcement. Moreover, the Court has relaxed the
warrant and probable cause requirements in certain other circumstances. For example, police need only have “reasonable suspicion”
to stop and frisk a person on the street.
In the end, however, whatever the search, the courts analyze it under the Fourth Amendment by balancing the expectation of privacy
against the state’s interests. This brings us full circle to where we
began: the touchstone of the Fourth Amendment is reasonableness.
One more point. The Supreme Court has identified a continuum of
expectation of privacy for those in the criminal justice system. Thus
in Samson v. California, 547 U.S. 843 (2006), the Court ruled that
a parolee had a lesser expectation of privacy than a probationer,
because parole is more like imprisonment (where the expectation of
privacy is at its lowest ebb).
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Against this backdrop, the parties in this case disagree on two key
points. First, they disagree on the nature of the Fourth Amendment
analysis. That is, they disagree on whether the Fourth Amendment
begins and ends with reasonableness, or whether it begins and ends
with the warrant requirement (and its exceptions and relaxations).
If the analysis centers around reasonableness, the Fourth Amendment bar is lower (favoring the state); if it centers around the
warrant requirement, the Fourth Amendment bar is probably higher
(favoring King).
Next, assuming reasonableness applies, the parties disagree on
the balance. In particular, they disagree on the extent of King’s
expectation of privacy: King emphasizes that he was merely an arrestee (clothed with the presumption of innocence and even farther
away from imprisonment than a probationer); but the government
emphasizes that the act includes privacy protections in the state’s
use of the DNA profile. The parties also disagree about the state’s
interests: whether the state had real interests in identifying and
supervising arrestees, or whether the state’s only real interest was
in solving crimes.
The state argues first that the DNA collection is only a minimal
intrusion into King’s privacy. It says that the collection here involved
only rubbing a small swab against the inside of King’s cheek, and
that under the act the state could only use the results for identification purposes. (The state contends that the Court should not
consider possible other uses of King’s DNA profile, as the Maryland
court did, because other uses are illegal under the act.) Moreover,
the state claims that a person lawfully arrested for a violent crime
has a reduced expectation of privacy and no legitimate expectation
of anonymity. And because the state used King’s DNA profile only for
identification purposes, the state says, the collection is no different
than any other routine booking procedure, like taking a photograph
or collecting fingerprints. (Indeed, the state says that the act allows
it to collect only limited information in the standard CODIS profile,
in particular, data from 13 different loci, or regions of the DNA,
which serve no purpose other than identification.) Finally, the
state claims that the presumption of innocence is irrelevant to the
Fourth Amendment right to be free from unreasonable searches and
seizures. It contends that the Fourth Amendment treats someone
incarcerated pending trial (and clothed with the presumption of
innocence) virtually the same as someone incarcerated following a
conviction. Both have a similarly reduced expectation of privacy.
Next, the state argues that DNA collection serves two important government interests. First, the state says that DNA collection promotes
its interest in accurately identifying arrestees and making sure
that the state has the right person in custody. The state says that
this identification purpose, in turn, also helps the state determine
whether an arrestee committed prior crimes, and thus helps the
state set bail, provide for security for arrestees not released, and
set the terms and conditions of community supervision for arrestees who are released. Second, the state says that DNA collection
and the DNA database help it solve crimes more quickly. The state
claims that this case is a perfect example of the database’s efficacy:
the database alone linked King to the 2003 rape and thus solved an
otherwise unsolved crime. The state argues that even as DNA collection serves these two important government interests, the act also
contains sufficient controls to limit the database to these interests
and to prevent the misuse of DNA profiles.
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The United States weighed in as amicus in support of the state.
It argued that while the Court has interpreted the Fourth Amendment to incorporate a presumption in favor of a warrant and
probable cause to justify a search, that procedure is not always
required. Instead, the government argues, the Court in a variety of
circumstances has balanced the interests to determine whether a
particular search procedure, without a warrant and probable cause
or reasonable suspicion, was reasonable. The government says that
these circumstances are not limited to cases involving convicted offenders (such as parolees, who have a severely diminished expectation of privacy); instead they extend to arrestees, pretrial detainees,
and even passengers in a traffic stop. Moreover, the government
contends that the balancing approach is not limited to cases involving “special needs” or administrative searches—exceptions to the
warrant requirement.
As to balancing itself, the United States largely echoes Maryland’s
arguments. On the one side, it argues that an arrestee is subject to
all manner of intrusions and has a significantly diminished expectation of privacy, regardless of the presumption of innocence at trial.
The United States claims that the DNA collection and analysis here
was a minimal intrusion on King’s personal privacy, and that it came
with sufficient protections against abuse. (Like the state, the United
States emphasizes that under the act, the stored portion of the DNA
profile relates only to the arrestee’s identity and nothing else, much
like a routine fingerprint.) On the other side, it argues that the state
has substantial interests in accurately identifying an arrestee, in
supervising arrestees that might have a prior criminal record, and
in solving crimes.
King argues first that the DNA swab violated the Fourth Amendment because the state had no warrant, no probable cause, and even
no reasonable suspicion for the search. He says that the state had
no reason to believe that DNA analysis would have been useful in
linking him to either the crimes with which he was charged, the
2003 rape, or any other crime, for that matter. King argues that the
DNA swab did not meet any one of the established exceptions to
the warrant requirement. In particular, he says that the exception
for searches of parolees was inapplicable, because parolees, unlike
arrestees, have been convicted; he contends that the “special needs”
exception did not apply because the collection served only ordinary
law enforcement needs (to investigate unsolved crimes) and not
special needs (for example, to identify and supervise arrestees
before trial); and he argues that the search-incident-to-arrest
exception was inapplicable because the purpose of the collection
(to investigate unsolved crimes) was different from the purpose
of a search incident to arrest (to collect evidence relevant to that
offense).
King claims that the DNA swab was not analogous to routine
fingerprinting at booking. He argues that fingerprinting is not even
a “search” for the purpose of the Fourth Amendment. But even if
it is, he says, it can be justified under the special needs exception,
because the primary purpose is to identify the arrestee, not to investigate unsolved crimes. (King notes that the United States made a
distinction between fingerprinting and DNA collection, arguing that
the latter “might provide competing considerations” in a case just
two years ago.)
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King argues that the Court should not create a new exception for
this case. He says that the state and United States effectively argue
for a new exception by starting the Fourth Amendment analysis
with balancing (and not the warrant requirement). But he claims
that such an analysis gets it exactly backwards. He says that this
approach would hamstring magistrates in safeguarding personal
privacy before a search and reduce the Fourth Amendment to an
after-the-fact protection for personal liberties. King contends that
the Court has never allowed officers to bypass the requirement for
a warrant or individualized suspicion simply because an intrusion
was minimal, or because the state’s need was great, or where, as
the United States argues, “protections are in place that limit the
discretion of officers in the field” or where a warrant would frustrate
the government’s need for the evidence. In short, King says, there is
no justification for creating a new exception to the warrant requirement here.
Finally, King argues that even if the Court applies a balancing test,
his privacy interests outweigh the state’s interests. On his side of
the ledger, King says that the buccal swab was a physical intrusion
into his body to collect the most deeply personal information about
him. He claims that it is no answer to say that the information is
limited to the standard CODIS profile (and data from the 13 loci),
because scientific advances may allow more information to be
gleaned from those data and because the state may collect additional information under certain circumstances. He also claims that
it is no answer to say that the act limits the use of DNA samples and
punishes the misuse of them, because the Fourth Amendment does
not turn on government promises to limit its use of information
such as this.
On the state side of the ledger, King claims that while the state has
a substantial interest in solving and preventing crimes, it cannot
show that DNA evidence from arrestees, who have not been convicted, serves that interest. King says that at least the state cannot
show that it especially serves that interest, any more than, say, DNA
evidence from the population in general.
Finally, King argues that neither the state nor the United States
offers any limiting principle to collecting DNA in order to solve
crimes. King says that the logical extension of their approach would
allow the state to swab and test any arrestee, including an arrestee
in a routine traffic stop. King argues further that their approach
would even allow targeted testing of particular subsets of the general population, assuming the state could show that those groups
have a higher incidence of criminal activity. King worries that the
state’s approach moves us closer to a blanket collection system in
which the DNA database includes everybody’s DNA.
SIGNIFICANCE
This case tests the widely accepted practice of obtaining and
testing DNA from persons arrested for serious crimes. In fact, 28
states and the federal government have laws similar to Maryland’s.
Every other state, plus the District of Columbia and Puerto Rico,
joined an amicus brief supporting Maryland. And an imposing array
of other organizations—from government organizations to law
enforcement organizations to advocacy groups—also submitted
amicus briefs supporting Maryland. Finally, the federal government
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put its substantial weight behind Maryland. Given the widespread
use of this practice, and the universal support for it among state
governments and the United States, the stakes are high.
The widespread use and universal support do not bode well for King.
The Court has looked to state and federal practice in determining
the reasonableness of other searches, tipping its hat to the judgments of state and federal legislatures and resisting upsetting
widespread practices. The vast support for this practice among state
governments and the United States will likely cut against King.
Moreover, King’s case is not particularly strong on its facts. King
does not allege here that the state misused his initial DNA profile (beyond using it to find a hit in the database and to obtain a
subsequent warrant for the second swab) or used it for purposes not
authorized by the act. And if the results are right, it looks like King’s
profile matched the profile from the earlier rape case. In other
words, the DNA collection in King’s case may have worked exactly as
it was supposed to work, and it may have helped solve a very serious
unsolved crime, to boot.
On the other hand, DNA obviously contains a wealth of a person’s
most private information. While the state limits the profile to the
CODIS loci, while those are associated with identification, and while
the state prohibits other uses of a person’s DNA, the state’s collection of a DNA profile raises the possibility of abuse. At the very least,
the state’s DNA profile includes more accurate, detailed personal
information than, say, a picture or a fingerprint; that is the whole
point of collecting it. It is therefore a greater invasion of personal
privacy, with greater potential for abuse. Moreover, the CODIS database has expanded over time, to include more and more categories
of persons. It may expand more, even realizing King’s worry that it
could eventually include everyone. In the meantime, it contains a
disproportionate number of innocent minority arrestees, suggesting that its use discriminates against minorities. These and related
points are elaborated in amicus briefs in support of King filed by the
Electronic Privacy Information Center and 26 Technical Experts and
Legal Scholars, the Council for Responsible Genetics, and Genetic
Scientists Robert Nussbaum and Sara H. Katsanis.
The Court has recently signaled that it will tolerate significant
intrusions into the personal privacy of arrestees, so long as the state
has a good reason. Thus, for example, the Court ruled just last term
in Florence v. Board of Chosen Freeholders, 566 U.S. ___ (2012),
that a state may conduct a routine and invasive strip search of an
arrestee even without reasonable suspicion, before the state admits
an arrestee into the general jail population. The Florence majority
held that the Fourth Amendment allows this significant invasion of
the arrestee’s privacy in the interest of safety and security within
the jail. On the other hand, the Court heard oral arguments just last
month in Missouri v. McNeely (Docket No. 11-1425), a case testing
whether a law enforcement officer can obtain a warrantless blood
sample from an alleged drunk driver. Questions from the bench
suggested that at least some justices saw a blood draw as a significant invasion of privacy, even of an arrestee, and that it might look
to preserve some version of the warrant requirement except when
officers cannot obtain a warrant for a blood draw or some other evidence of blood-alcohol level before an arrestee’s blood-alcohol level
dissipates. (Questions from the bench are never a good predictor of
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where the Court is likely to come out on a case, but in McNeely they
at least suggested some of the Court’s concerns.)
Both cases are distinguishable from this one, and neither presages the result here. But they both give a glimpse of how this Court
balances privacy interests of an arrestee against state interests in
invasive searches.
Steven D. Schwinn is an associate professor of law at The John
Marshall Law School in Chicago, Illinois, and coeditor of the
Constitutional Law Prof Blog. He specializes in constitutional law
and human rights. He can be reached at [email protected] or
312.386.2865.
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© 2013 American Bar Association.
ATTORNEYS FOR THE PARTIES
For Petitioner Maryland (Brian S. Kleinbord, 410.576.6435)
For Respondent Alonzo Jay King Jr. (Kannon K. Shanmugam,
202.434.5000)
Amicus Briefs
In Support of Petitioner Maryland
California, Alabama, Alaska, Arizona, Arkansas, Colorado,
Connecticut, Delaware, District of Columbia, Florida, Georgia,
Hawaii, Idaho, Illinois, Indiana, Iowa, Kansas, Kentucky, Louisiana,
Maine, Massachusetts, Michigan, Minnesota, Mississippi,
Missouri, Montana, Nebraska, Nevada, New Hampshire, New
Jersey, New Mexico, New York, North Carolina, North Dakota, Ohio,
Oklahoma, Oregon, Pennsylvania, Puerto Rico, Rhode Island, South
Carolina, South Dakota, Tennessee, Texas, Utah, Vermont, Virginia,
Washington, West Virginia, Wisconsin, Wyoming (Enid A. Camps,
415.703.5976)
DNA Saves, Bring BRI Justice Foundation, Keep Georgia Safe, the
Rape, Abuse & Incest National Network, and the Surviving Parents
Coalition (Jonathan S. Franklin, 202.662.0466)
Global Alliance for Rapid DNA Testing (Theodore B. Olson,
202.955.8500)
Los Angeles County District Attorney on Behalf of Los Angeles
County (Roberta T. Schwartz, 213.974.3899)
Maryland Chiefs of Police Association, Inc., Maryland Sheriffs’
Association, Inc., Police Chiefs’ Association of Prince George’s
County, Maryland, Inc., Maryland Municipal League, Inc., Police
Executive Association, International Association of Chiefs of Police,
Inc., Major Cities Chiefs Association, Mayor and City Council of
Baltimore and Montgomery County, Maryland (Karen J. Kruger,
410.659.7700)
Maryland Coalition Against Sexual Assault (William C. Sammons,
410.752.9700)
217
Maryland Crime Victims’ Resource Center, Inc., National Center
for Victims of Crime, National Crime Victim Law Institute, National
Organization of Parents of Murdered Children, Inc., Crime Victims
United of California, D.C. Crime Victims’ Resource Center, and
Colorado Organization for Victim Assistance (Neal Kumar Katyal,
202.637.5528)
National District Attorneys Association (Prashant Kumar Khetan,
202.274.2950)
National Governors Association, the National Conference of State
Legislatures, the Council of State Governments, the National
Association of Counties, the International City/County Management
Association, the United States Conference of Mayors, the
International Municipal Lawyers Association, and the National
Sheriffs’ Association (Prashant Kumar Khetan, 202.274.2950)
Susana Martinez, Governor of the State of New Mexico (Jeffrey
S. Bucholtz, 202.737.0500)
United States (Donald B. Verrilli Jr., Solicitor General,
202.514.2217)
Council for Responsible Genetics (Matthew S. Hellman,
202.639.6060)
Electronic Privacy Information Center and 26 Technical Experts
and Legal Scholars (Marc Rotenberg, 202.483.1140)
Genetic Scientists Robert Nussbaum and Sara H. Katsanis
(Danielle Spinelli, 202.663.6000)
Howard University School of Law Civil Rights Clinic (Aderson
B. Francois, 202.806.8065)
National Association of Criminal Defense Lawyers (Lisa S. Blatt,
202.942.5000)
National Association of Federal Defenders (William M. Jay,
202.346.4000)
Public Defender Service for the District of Columbia (Sandra
K. Levick, 202.628.1200)
Veterans for Common Sense (Eric D. Miller 206.359.3773)
In Support of Respondent Alonzo Jay King Jr.
14 Scholars of Forensic Evidence (Erin Elizabeth Murphy,
212.998.6672)
In Support of Neither Party
Genetics, Genomics and Forensic Science Researchers (Michael
L. Foreman, 814.865.3832)
American Civil Liberties Union (Michael T. Risher, 415.293.6373)
(continued from page 213)
Chief Justice Roberts: I know what Missouri’s position is, and
I know it’s not a breathalyzer test. But if the logic of your position
leads to the requirement of a warrant for a breathalyzer, that would
be pertinent in analyzing your position.
*
*
*
*
Justice Samuel Alito: Suppose you are in a rural—in a rural
jurisdiction and it takes a long time to rouse a prosecutor and a
magistrate at 3:00 in the morning to get the warrant. You would
say, that’s too bad, everybody has—the whole country has to operate like New York City, you have to have somebody on duty all the
time.
Mr. Shapiro: Well, Your Honor, Cape Girardeau County is a rural
county in southeastern Missouri …
Justice Alito: But I’m asking you a hypothetical question. I—I bet
there are places like that. I have encountered magistrate—federal
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magistrate judges who were unreceptive to receiving warrant
applications in the middle of the night, and that is known to—to
exist. Suppose you have a jurisdiction like that? Does that count as
a circumstance that would justify a warrantless taking of blood?
Mr. Shapiro: I would say no, Your Honor. I don’t think the state
ought to be able to take advantage of its own failure to modernize
an expedited …
Justice Anthony Kennedy: Suppose the magistrate is unavailable because he or she is ill?
Mr. Shapiro: Then I think that’s a different situation, Your Honor. I
think that …
Justice Kennedy: Would you agree that that’s an exigent circumstance which would allow a warrantless blood sample?
Mr. Shapiro: I think it might—well—if the magistrate were
unavailable and there were no alternative magistrate.
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