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Thursday, July 3, 2014

Maclin on Maryland v. King and Terry v. Ohio

Maclin traceyTracey Maclin (Boston University - School of Law) has posted Maryland v. King: Terry v. Ohio Redux (2013 Supreme Court Review 359) on SSRN. Here is the abstrct:

In Maryland v. King, the Supreme Court addressed whether forensic testing of DNA samples taken from persons arrested for violent felonies violated the Fourth Amendment. The purpose behind DNA testing laws is obvious: collecting and analyzing DNA samples advances the capacity of law enforcement to solve both "cold cases" and future crimes when the government has evidence of the perpetrator's DNA from the crime scene. 

In a 5-4 decision, the Court, in an opinion by Justice Kennedy, upheld Maryland's DNA testing statute, and presumably the similar laws of twenty-seven other states and the federal government. 

Although Justice Kennedy's opinion suggests otherwise, Maryland v. King has the potential to fundamentally alter Fourth Amendment law. Indeed, it is analogous to Terry v. Ohio. Like Terry, King alters the "rules of the game" and significantly expands the government's authority to search persons subject to custodial arrest. Just as a balancing test made it easy for the Court to extend Terry's rationale to different scenarios between police and suspicious persons, King's reasoning can be used to support collection and analysis of DNA samples from other persons subjected to governmental restraint, or from those who possess diminished privacy interests vis-a-vis the government.

Indeed, because King approved suspicionless searches of persons under a free-form balancing analysis, it will be difficult to cabin the Court's logic when government officials seek innovative search powers contexts in which individuals arguably possess limited privacy interests. 

Put simply, King is an important ruling. This article explains why. The article demonstrates why the Court's precedents do not support the decision. It also addresses the implications of King's reasoning, and explains why the holding will not be confined to persons arrested for violent felonies. Finally, the article explores the similarities (as well as one important difference) between the judicial styles exhibited by the Court in King and Terry.

http://lawprofessors.typepad.com/crimprof_blog/2014/07/maclin-on-maryland-v-king-and-terry-v-ohio.html

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