In a recent 5-2 decision, the Maryland Court of Appeals (Maryland’s highest court) ruled that the state’s 2008 DNA Collection Act was unconstitutional because collecting DNA after an arrest, rather than post-conviction, violates the defendant’s constitutional rights. This decision is troublesome for a number of reasons.
The use of forensic DNA has revolutionized the investigation of crimes. Not only has it been used to solve past “cold cases,” but it has also exonerated suspects under investigation, and those wrongfully convicted of committing a crime.
Using the FBI’s Combined DNA Index System (CODIS), more than 10.6 million DNA samples have been collected by federal, state, and local participating forensic laboratories; these samples have, in turn, aided over 169,000 investigations nationwide.
Through their respective legislatures, each state determines what qualifying offenses must be committed by the offender in order to collect a DNA sample. Broadly speaking, there are two categories: felons already convicted, or arrestees charged with an enumerated felony.
As to the first category, every single state collects DNA samples from convicted felons. Consequently, several state and federal courts have upheld the constitutionality of state DNA collection laws post-conviction:
- In 2004, the Maryland Court of Appeals held in State v. Raines that its law did not infringe upon a convict’s 4th Amendment rights because the method of collection was reasonable and minimally intrusive.
- In 2005, the Federal Court of Appeals for the Second Circuit ruled that the state of New York’s DNA Collection statute, which required certain classes of felons to provide DNA samples to be maintained in a state database, was constitutional.
- In 2007, the Supreme Court of New Jersey (New Jersey’s highest court) held that their state law to collect DNA from all persons convicted of an indictable crime was constitutional in accordance with both the New Jersey and the U.S. Constitution.
- In 2007, the Court of Appeals of Oregon (Oregon’s intermediate appellate court) ruled that its DNA collection law was constitutional, stating that taking a mouth swab from a convict was akin to taking a fingerprint of a person in custody.
More recently, there is a growing trend among the states for the second category (post-arrest DNA collection). To date, 26 U.S. states have passed laws authorizing the collection of DNA from arrestees who have been charged with a violent crime to include murder, rape, robbery, or aggravated assault. Twelve other states allow the DNA sampling of anyone charged with a felony. These state laws have also been challenged in court, and subsequently ruled constitutional:
- In 2007, the Supreme Court of Virginia (Virginia’s highest court) decided in Anderson v. Commonwealth that taking a DNA sample upon arrest was not an unlawful search under the Fourth Amendment, and therefore, analogous to the taking of a suspect’s fingerprints upon arrest.
- In 2012, the highest court in the state of Minnesota, its Supreme Court, ruled that their DNA collection statute, which authorized the sampling of those charged with felonies including violent crimes, sex crimes, or burglary, did not violate either the Minnesota State Constitution or the Fourth Amendment of the U.S. Constitution.
- Just three months ago, in February 2012, the reliably-liberal Federal Court of Appeals for the Ninth Circuit held that California’s DNA collection law, which requires law enforcement officers to collect DNA samples from all adults arrested for felonies, was constitutional.
All of this is to say just how far outside the mainstream the Maryland Court of Appeals was in its outlandish decision in Alonzo Jay King, Jr. v. State.
The facts of the case are straightforward. In April 2009, King was arrested in Wicomico County on first- and second-degree assault charges. This was not his first arrest. Dating back to 2001, King had numerous run-ins with the law for multiple assaults, possession of marijuana with intent to distribute, paraphernalia, concealment of a deadly weapon, burglary, reckless endangerment, disorderly conduct, and resisting arrest.
While awaiting trial for the assault charges, King’s sample was entered into the statewide database. Sure enough, it matched the DNA recovered from an unsolved 2003 home invasion, armed robbery, and forcible rape of a 53-year old woman in Salisbury, Maryland. Based on this DNA “hit,” he was charged with first-degree rape. Upon his conviction, King was sentenced to life in prison.
The Maryland Court of Appeals overturned King’s rape conviction because “his DNA was collected unconstitutionally, and the evidence presented at trial should have been suppressed as ‘fruit of the poisonous tree.’”
The Court further reasoned that since local law enforcement (prior to obtaining a DNA sample from King following his arrest on the assault charges) identified King accurately and confidently through photographs and fingerprints, officers had no legitimate need for a DNA sample in order to be confident who they arrested. Therefore, using the totality of circumstances balancing test, the Court concluded:
“[King] has a sufficiently weighty and reasonable expectation of privacy against warrantless, suspicionless searches that is not outweighed by the State’s purported interest in assuring proper identification of him as to the crimes for which he was charged at the time.”
Within the majority opinion, though, the Court admits to having some trepidation as to ruling the state DNA collection law, under any and all circumstances, unconstitutional. For example, if an arrestee had altered his fingerprints or facial features, the State would need to obtain a DNA sample to identify him accurately.
However, the Court maintains that the law was unconstitutional “as-applied” to this case because King’s identity was not the evidence that served as probable cause for his grand jury rape indictment. The majority does not equate the biological match between King’s 2009 mouth swab and the evidence collected from his 2003 rape victim, to other identifying information such as his name or address.
Thus, any DNA sample taken to simply identify an arrestee is constitutional. But if that sample is then compared with another in the state database, it has been unconstitutionally collected for “investigative purposes,” and is not admissible in court.
Maryland Attorney General Douglas F. Gansler should ask the United States Supreme Court to hear this case, and the Supreme Court should take the case to resolve the disagreement in interpretation offered by the Maryland Court of Appeals and the other courts—including the Ninth Circuit—that have heard this issue. In so doing, the Supreme Court should clarify that the Fourth Amendment does not prohibit a state from requiring a violent felon from saying “ahh,” and the use of that information to solve crimes.
Forrest Hunt is a member of the Young Leaders Program at the Heritage Foundation. For more information on interning at Heritage, please visit: http://www.heritage.org/about/internships-young-leaders/the-heritage-foundation-internship-program
 For more NDIS statistics, see the FBI’s website, available at http://www.fbi.gov/about-us/lab/codis/ndis-statistics (last viewed on May 8, 2012).
 For information on the states’ DNA Database laws, see Nathan James’s CRS report entitled, “DNA Testing in Criminal Justice: Background, Current Law, Grants, and Issues” (Dec. 7, 2011) available at: http://www.fas.org/sgp/crs/misc/R41800.pdf.
 See page 2, King v. State majority opinion.
 See page 58, King v. State majority opinion.
 See page 58, King v. State majority opinion.