Friday, June 07, 2013

U.S. Supreme Court’s Maryland v. King DNA collection landmark

Alonzo King was arrested April 10, 2009 for menacing a group of people with a shotgun and charged with first- and second-degree assault. As part of his being processed at the Wicomico County Central Booking facility personnel took a DNA sample pursuant to provisions of Maryland’s DNA Collection Act (or Act), and , upon that record’s being uploaded to Maryland’s DNA database, matched to a sample collected in an unsolved 2003 rape case.

The initial match linking King to the rape was presented to a grand jury which indicted him for the rape. Detectives obtained a search warrant and took a second DNA sample from King, which again matched the evidence from the rape.

King moved to suppress the DNA match on the grounds that Maryland’s DNA collection law violated the Fourth Amendment. The Circuit Court upheld Maryland’s statute with King then pleading not guilty, but being convicted of the rape charges and sentenced to life in prison without the possibility of parole.

That appealed, a divided Maryland Court of Appeals struck down the portions of the Maryland act authorizing collection of DNA from felony arrestees as unconstitutional; the majority concluding that a DNA swab was an unreasonable search in violation of the Fourth Amendment.

The case then proceeded to the U.S. Supreme Court with Justice Kennedy handing down his decision this past Monday, June 3rd. ( here ), holding in pertinence that “When officers make an arrest supported by probable cause to hold for a serious offense and bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment… and, (by citing District Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U. S. 52, 55, 129 S.Ct. 2308), that DNA testing may ‘significantly improve both the criminal justice system and police investigative practices by making it possible to determine whether a biological tissue matches a suspect with near certainty.’”

Kennedy was joined by Justices Thomas, Breyer, Alito, and Chief Justice Roberts, while Justice Scalia dissented, joined by Ginsburg, Sotomayor, and Kagan.

An important case that’s attracted much scrutiny from the media and legal & political communities for over a year, the majority opinion is obviously favorable to the twenty-eight states already having DNA-collection laws on their books --- and the Ohio Supreme Court, last year in State v. Emerson, 134 Ohio St.3d 191, 2012-Ohio-5047 , extends that even further in its holding that “…a person does not have standing to object to the retention of his or her DNA profile or the profile’s use in a subsequent criminal investigation, and the state is authorized to retain the DNA profile and to use it in a subsequent investigation even though the profile was obtained from a sample taken during the investigation of a crime of which the person was acquitted” --- but Justice Scalia’s dissent here is an ominous warning as well.

“…while the Court is correct to note that there are instances in which we have permitted searches without individualized suspicion,” he wrote, ‘[i]n none of these cases. . . did we indicate approval of a [search] whose primary purpose was to detect evidence of ordinary criminal wrongdoing.’ Indianapolis v. Edmond, 531 U. S. 32, 38 (2000). That limitation is crucial. It is only when a gov¬ernmental purpose aside from crime-solving is at stake that we engage in the free-form “reasonableness” inquiry that the Court indulges at length today.

“… The objects of a search incident to arrest must be either (1) weapons or evidence that might easily be destroyed, or (2)evidence relevant to the crime of arrest. See Arizona v. Gant, 556 U. S. 332, 343–344 (2009); Thornton v. United States, 541 U. S. 615, 632 (2004) (SCALIA, J., concurring in judgment). Neither is the object of the search at issue here.

“…The Court repeatedly says that DNA testing, and entry into a national DNA registry, will not befall thee and me, dear reader, but only those arrested for ‘serious offense[s].’ … I cannot imagine what principle could possibly justify this limitation, and the Court does not attempt to suggest any. If one believes that DNA will ‘identify’ someone arrested for assault, he must believe that it will ‘identify’ someone arrested for a traffic offense. This Court does not base its judgments on senseless distinctions. At the end of the day, logic will out. When there comes before us the taking of DNA from an arrestee for a traffic violation, the Court will predictably (and quite rightly) say, ‘We can find no significant difference between this case and King.’ Make no mistake about it: As an entirely predictable conse¬quence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.

“Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an air¬plane (surely the Transportation Security Administration needs to know the ‘identity’ of the flying public), applies for a driver’s license, or attends a public school. Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection… “

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