Do Not Assume: Court Of Appeals Of Maryland Upholds "As Applied" Challenge To Statute Authorizing DNA Collection From Arrestees

A few weeks ago, I posted an entry about a terrific recent article, A Better Balancing: Reconsidering Pre-Conviction DNA Extraction from Federal Arrestees, North Carolina Law Review Addendum, Vol. 90, p. 157 (2012), by Kevin Lapp & Joy Radice. In the article, Lapp and Joy Radice argue against a federal law authorizing officers from automatically being able to collect DNA from individuals "arrested, facing charges, or convicted." In its recent opinion in King v. State, 2012 WL 1392636 (Md. 2012), the Court of Appeals of Maryland reached a similar conclusion with regard to Maryland's DNA collection law.

In King,

Alonzo Jay King Jr., was arrested in 2009 on first- and second-degree assault charges. Pursuant to § 2–504(3) of the [Maryland Public Safety] Act, King's DNA was collected, analyzed, and entered into Maryland's DNA database. King was convicted ultimately on the second-degree assault charge but, pending his trial on that charge, his DNA profile generated a match to a DNA sample collected from a sexual assault forensic examination conducted on the victim of an unsolved 2003 rape. This "hit" provided the sole probable cause for a subsequent grand jury indictment of King for the rape. A later-obtained search warrant ordered collection from King of an additional reference DNA sample, which, after processing and analysis, matched also the DNA profile from the 2003 rape. King was convicted of first-degree rape and sentenced to life in prison.

§ 2–504(3) provides that

(i) In accordance with regulations adopted under this subtitle, a DNA sample shall be collected from an individual who is charged with:

1. a crime of violence or an attempt to commit a crime of violence; or

2. burglary or an attempt to commit burglary.

(ii) At the time of collection of the DNA sample under this paragraph, the individual from whom a sample is collected shall be given notice that the DNA record may be expunged and the DNA sample destroyed in accordance with § 2-511 of this subtitle.

(iii) DNA evidence collected from a crime scene or collected as evidence of sexual assault at a hospital that a law enforcement investigator considers relevant to the identification or exoneration of a suspect shall be tested as soon as reasonably possible following collection of the sample.

After he was convicted, King appealed, claiming that § 2–504(3) is facially invalid in authorizing collection of a DNA sample from a mere arrestee and that it was invalid as applied to him. The case thus presented a question of first impression for the Court of Appeals of Maryland, which previously found no constitutional problem with the collection of DNA samples from convicted felons in State v. Raines, 857 A.2d 19 (Md. 2004).

In addressing this issue, the court noted that

Courts have upheld overwhelmingly against Fourth Amendment challenges federal and state statutes authorizing warrantless, suspicionless DNA collection from convicted criminals, including incarcerated prisoners, parolees, and probationers. Federal and state courts are divided, however, on the constitutionality of requiring mere arrestees to submit to DNA sample collection. At the heart of this debate (and the present case) is the presumption of innocence cloaking arrestees and whether legitimate government interests outweigh the rights of a person who has not been adjudicated guilty of the charged crime, and is somewhere closer along the continuum to a person who is not charged with a crime than he or she is to someone convicted of a crime.

Then after rigorously laying out a good deal of this conflicting precedent, the court distilled the issue down to the following: 

To evaluate King's as-applied challenge, we analyze the totality of the circumstances, using the Knights balancing test that weighs King's expectation of privacy on one hand and the state's interests on the other, keeping in mind that the "touchstone" of Fourth Amendment analysis is reasonableness. 

And, in conducting this analysis, the court kept two things in mind:

-"Our analysis is influenced also by the precept that the government must overcome a presumption that warrantless, suspicionless searches are per se unreasonable;" and

-"As other courts have concluded, we look at any DNAcollection effort as two discrete and separate searches. The first search is the actual swab of the inside of King's mouth and the second is the analysis of the DNA sample thus obtained, a step required to produce the DNA profile."

King's Expectation of Privacy

Like Lapp and Radice, the Court of Appeals of Maryland disagreed with the analogy between compulsory fingerprinting of arrestees and compulsory DNA collection from arrestees. According to the court,

We do not embrace wholly the analogy between fingerprints and DNA samples advanced in Judge Raker's concurring opinion in Raines and by the State in the present case. As aptly noted, fingerprints are a physical set of ridges on the skin of a person's fingers that, when exposed to ink (or other medium) and the resultant imprint placed on paper or electronic records, can determine usually and accurately a person's identity by matching the physical characteristics to a known set of fingerprints. DNA, on the other hand, is contained within our cells and is collected by swabbing the interior of a cheek (or blood draw or otherwise obtained biological material). While the physical intrusion of a buccal swab is deemed minimal, it remains distinct from a fingerprint. We must consider that "[t]he importance of informed, detached and deliberate determinations of the issue whether or not to invade another's body in search of evidence of guilt is indisputable and great."...

The information derived from a fingerprint is related only to physical characteristics and can be used to identify a person, but no more. A DNA sample, obtained through a buccal swab, contains within it unarguably much more than a person's identity. Although the Maryland DNA Collection Act restricts the DNA profile to identifying information only, we can not turn a blind eye to the vast genetic treasure map that remains in the DNA sample retained by the State. As Judge Wilner noted in his concurring opinion in Raines,

A person's entire genetic makeup and history is forcibly seized and maintained in a government file, subject only to the law's direction that it not be improperly used and the prospect of a misdemeanor conviction if a custodian willfully discloses it in an unauthorized manner. No sanction is provided for if the information is non-willfully disclosed in an unauthorized manner, though the harm is essentially the same.

According to the court, it was "the State's interest regarding DNA collection from convicted felons overwhelmed these considerations." But the court found that the equation changes when the individual is merely an arrestee and that

The State underestimates, in seeking to apply conclusively our holding in Raines to the present case, the power of a conviction. Raines's conviction was critical to our analysis there, that convicted felons have a "severely reduced expectation of privacy"; the difference regarding a mere arrestee is critical here. Although arrestees do not have all the expectations of privacy enjoyed by the general public, the presumption of innocence bestows on them greater protections than convicted felons, parolees, or probationers. A judicial determination of criminality, conducted properly, changes drastically an individual's reasonable expectation of privacy. The expungement provisions of the Act recognize the importance of a conviction in altering the scope and reasonableness of the expectation of privacy. If an individual is not convicted of a qualifying crime or if the original charges are dropped, the DNA sample and DNA profile are destroyed. The General Assembly recognized the full scope of the information collected by DNA sampling and the rights of persons not convicted of qualifying crimes to keep this information private. This right should not be abrogated by the mere charging with a criminal offense: the arrestee's presumption of innocence remains.

Government Interest

Again, like  Lapp and Radice, the Court of Appeals of Maryland disagreed with the State's labeling of its purpose in DNA collection from arrestees as identifying individuals. Instead, the court found that

Courts upholding statutes authorizing DNA collection from arrestees rely on an expansive definition of "identification" to sweep-up "cold case" crime-solving as a government purpose recognized and approved previously by courts in other contexts. This expanded definition of identity encompasses the traditional name, date of birth, address, and physical characteristics, but also "what that person has done," including his/her past known criminal record and as-yet-unsolved crimes....Although the State does not advance directly this argument here, it is implicated by the State's heavy reliance on forms of "identification"(or evidence, as the case may be) that may have been collected from previous crimes and compared to the "identification" of an arrestee. Such an argument stretches the bounds of reasonableness under our view of proper Fourth Amendment analysis. We decline to accept it in light of its impacts on an arrestee's expectations of privacy in his or her genetic material, unless that material is deemed properly abandoned.

The State argues that it has a legitimate purpose in identifying accurately arrestees. Accepting this argument arguendo, the State presented no evidence that it had any problems whatsoever identifying accurately King through traditional booking routines. King had been arrested previously, given earlier fingerprint samples, and been photographed. There is no claim that King presented false identification when arrested or had altered his fingerprints or appearance in any way that might increase the State's legitimate interest in requiring an additional form of identification to be certain who it had arrested. The FBI's fingerprint database is a reliable method for law enforcement to identify (or confirm the identities of) arrestees promptly and accurately. When an arrestee's fingerprints are uploaded to the database, the results (which include a photograph, fingerprints, and a criminal history) are returned within minutes. This system contains not only criminal records, but also fingerprints uploaded voluntarily by citizens. This database is essential to law enforcement during routine booking of arrestees. On the other hand, the FBI's DNA database contains no personal identifying information, no names, no birth dates, no social security numbers, and no criminal histories. A "hit" may take months to return. The DNA sample is not analyzed until after the first scheduled arraignment date. The profile must be uploaded and the database searched. The laboratory must return theDNA profile. When a "hit" arises, a law enforcement officer is notified, who must request the additional information.

King was arrested on 10 April 2009. The "hit" was returned on 4 August 2009. At this point, King had been identified accurately via other methods. There is no evidence that the DNA "hit" bolstered or clarified his already confirmed identity.

The court thus upheld King's "as applied" challenge. And while it didn't quite grant his facial challenge, it made clear that almost any arrestee raising an "as applied" challenge in the future would be successful. According to the court,

We conclude that King's facial challenge to the statute fails because there are conceivable, albeit somewhat unlikely, scenarios where an arrestee may have altered his or her fingerprints or facial features (making difficult or doubtful identification through comparison to earlier fingerprints or photographs on record) and the State may secure the use of DNA samples, without a warrant under the Act, as a means to identify an arrestee, but not for investigatory purposes, in any event.

-CM