King vs. Maryland, DNA Collection & Privacy

Lyle Denniston at ScotusBlog on Tueday, February 26th. related "Justice Samuel A. Alito, Jr., pronouncing that it was 'the most important criminal procedure case the Court has had in decades,' upon hearing arguments in Maryland v. King (docket 12-207), even while letting on that he has no difficulty making up his mind on it as the Supreme Court returned to the idea of how much leeway the Constitution gives police to adopt new technology to solve crimes. Amid much fretting on the bench about 'cold cases' not yet wrapped up, the Justices examined closely whether routine warrantless police sampling of DNA of persons arrested for serious crimes will be allowed."

Denniston found that the Justices hearing Maryland were "closely divided" and that "the deeply contested nature of the case was evident from its opening minutes," an observation that didn't go unnoticed by other writers. Tony Mauro at Law.com/National Law Journal noted "the libertarian streak of some of the court's conservatives was on display, with justices expressing worry about the implications of a Maryland law—similar to those in 27 other states—that does not require a search warrant before police can use a swab to take a DNA sample from inside the mouths of those arrested for serious crimes."

Kentucky, by the way, is in the process of passing their own "time of arrest" legislation now.

Mauro had also noted that "the attacks from the court seemed to leave the Maryland law in tatters until Deputy Solicitor General Michael Dreeben rose in support of DNA sampling. Dreeben, the long-time expert on criminal law for the SG's office, changed the dynamics of the argument when he told the court, 'The future is near where there will be rapid DNA analyzers that are devices that can analyze and produce the identification material in the DNA within 90 minutes. And the design of the program is to put them at the booking station so that DNA can be taken and within 90 minutes that information is known.' Suddenly, DNA sampling began to look to the justices like fingerprinting, which has long been viewed as constitutional. If the DNA sample could be processed that quickly, then it could be justified as a method of verifying the identification of the suspect and of informing the bail decision."

CNN.com pointed out that "the DNA Identification Act of 1994 created a national database in which local, state, and federal law enforcement agencies can compare and share information on DNA matches from convicted felons, but courts have been at odds on just when such samples can be collected and the information distributed."

In that regard, we came across the footnote in Wikipedia's entry on the Katie Sepich Enhanced DNA Collection Act of 2010, which Congress passed last December,which provides funding to states to implement minimum and enhanced DNA collection processes for felony arrests…. "The Eighth Circuit U.S. Court of Appeals, in the United States v. Pool, upheld that the federal statute allowing collection of DNA samples prior to conviction for inclusion in the national DNA database does not represent a violation of constitutional rights. In issuing its ruling, the court specifically held that the collection does not represent a violation of 4th Amendment rights. The court also dismissed claims of violations of 5th and 8th amendment rights. High courts in Maryland,in 2003 and Virginia in 2007, also ruled that DNA upon arrest does not violate the Fourth Amendment. Maryland's supreme court, however, in April of last year with this case, Maryland v. King, reversed itself.


King's petition for a writ of certiorari is here, and the State of Maryland's reply in opposition here.