Maryland v. King: SCOTUS’ Suspect Opinion on DNA Swabs

I wanted to talk today about a case that was decided in June 2013 by the United States Supreme Court, Maryland v. King. King is an important decision with regard to Fourth Amendment rights. Factually, King involved the conviction of Alonzo King for a rape that occurred in 2003. In 2009, King was arrested on charges of assault after using a shotgun to menace a group of people. Incident to the 2009 assault arrest, the police took a DNA sample from King and ran it through a national database. The DNA taken from King matched DNA taken from the 2003 rape case, and a grand jury then indicted King for that rape. King was arrested and ultimately convicted for the rape.

King appealed, arguing that the police violated his Fourth Amendment right of freedom from unreasonable searches and seizures by taking his DNA sample. The Maryland Court of Appeals (their highest court) agreed and overturned the rape conviction. The U.S. Supreme Court, on certiorari, splintered in a 5-4 decision to reverse the court of appeals and uphold the rape conviction. I will now turn to the majority opinion’s logic, and compare it with the stern and impassioned dissent written by Justice Scalia.

The majority opinion essentially created a broad definition of what it means for law enforcement officers to “identify” a criminal. Because the majority defined “identify” so broadly, taking a DNA sample qualifies as “identification” of a criminal and, according to the majority, is comparable to taking fingerprints, or other criminal booking procedures. This jump in analysis is already the subject of some scrutiny.

Further, the majority reasoned that there is a balancing test that must be performed, one where the privacy interests of the criminal are weighed against the interests of the government. This balancing test is nothing new, however, the King decision, in this writer’s opinion, sets a new standard for governmental interests trampling privacy rights. The Court opined that criminals do not have much expected privacy interest, and thus the procedure of taking DNA itself is not very intrusive. Further, the government has a substantial interest in identifying criminals, and this interest outweighs the arrestee’s privacy interests in their own DNA.

Therefore, the Court concluded that the actual “search” (i.e. the DNA swab) was reasonable and did not violate King’s Fourth Amendment rights. Clearly, the broad inclusion of DNA swabs as a means of “identifying” a criminal is crucial to the analysis, for if DNA collection was deemed to not be part of identifying the criminal then the entire chain of logic fails. Justice Scalia made this precise point in his dissent.

In his dissent, Justice Scalia stated at the outset that, to equate DNA swabs with fingerprinting, and thus as a method of identifying a criminal, “taxes the credulity of the credulous.” Or in other words, it is ridiculous. He then stated that the founding fathers were sternly opposed to “general warrants” executed by the British and would never have “opened their mouth” for a procedure such as DNA swabbing. According to Justice Scalia, the purpose of the DNA swab is clear: to solve cold cases. Justice Scalia then pointed out the singular logical inconsistency of how can the police not know the identity of a criminal when he is in their custody? In all practicality, when the police arrest somebody, they already know, or soon discover, the identity of the arrestee. There is no need to run a DNA test to discover the arrestee’s identity. Therefore, the collection of DNA samples from arrestees in reality has nothing to do with “identifying” a suspect or the booking process.

Justice Scalia stated it is against the very principles of the Fourth Amendment to allow these DNA swabs, for the police cannot possibly have probable cause to link the arrestee to an unknown and unknowable cold crime. In fact the very nature of the situation and the purpose of taking the DNA is that the police have no idea who committed the cold crime or what cold crime they are even looking for. The police certainly have no viable reason to suspect a random arrestee committed a cold crime – specific or non-specific. The undeniable fact is that the police only have probable cause after they perform the search and seizure – that is after taking the DNA and running it through a database.

In conclusion, the Court has articulated that DNA swabs are a useful part of identifying a suspect, and that the privacy interests of the arrestee do not outweigh the substantial interest of the government in identifying criminals. The implications are clear: with the growing use of DNA testing, more crimes may be solved that otherwise wouldn’t have while the legal restraints on solving these crimes continue to be debated.

In this writer’s opinion this is an ends justified decision. As Justice Scalia pointed out, this type of physical restraint and seizure of a person is precisely the type of thing the framers wanted to prevent. Despite the majority’s rationale, DNA swabs are not simple booking procedures. The act of sticking a Q-Tip in someone’s mouth without a reason and without their consent is the very definition of unreasonable. The government, through the police, are restraining a citizen and forcing them to open their mouth and provide a sample of DNA – the very data of a person’s existence. There is no more personal or confidential information.

This is being done without probable cause and due process. There is not and cannot be, by definition, any probable cause for the search and seizure. Further, there are no exigent circumstances because the police are not aware of any other crimes the arrestee may have committed. Thus, this is a clear violation of Fourth Amendment rights without any of the required justification. The fact that the police have a supposed interest in identifying criminals should not trump citizens’ right to their bodily integrity.

Ultimately, the King decision sanctions a police procedure that is a pretext for obtaining specific, immutable and personal information from an arrestee for purposes of a fishing expedition. The implications are considerable. Who keeps a record of the DNA? Is the database secure? What happens if the DNA database is breached and the information is stolen (think credit cards…)? How does the government protect citizens from the “ultimate identity theft”? More importantly, is the forced procurement of DNA justified if the database search comes back clean? Or, has the Court justified its decision because King was a rapist and the DNA swab solved a cold case?