If you thought the United States Supreme Court seldom decides cases in the interest of prosecutors or law enforcement, here’s a case for you!
In 2009, Maryland police arrested Alonzo Jay King for what would have been aggravated assault under Texas law.1 He had threatened a group of people with a shotgun. At the station, the officers identified King by his name (and likely his I.D.) and had him fingerprinted. At that point, King was masquerading as a man with a clean record, without any darker past to hide. And police did not know any different.
As it happened, Maryland had just started requiring DNA samples from arrestees accused of violent crimes. The state’s highest appellate court, like ours in Texas and many others throughout the country, had already permitted collection of DNA samples from convicted felons.2 But the Maryland legislature extended the program in a bold, new direction—to include the merely accused.3
As part of the routine booking process for arrestees of violent crimes, officers in the Maryland jail had King open his mouth, and they swabbed the inside of both cheeks to collect a DNA sample. This is commonly called a “buccal swab.” “Buccal” is pronounced like “buckle” and means relating to the cheek or mouth. King’s case proceeded through the initial phases of the criminal justice system. He was arraigned before a judge and a decision was made whether to release King on bail.
Then, four months after his arrest, police learned that King was not who they thought he was. Scientists had isolated King’s DNA profile and uploaded it to Maryland’s DNA database, which returned a “hit” on his profile to an unsolved 2003 rape. Police now had strong evidence that the man they had arrested for brandishing a gun was actually a violent rapist.
Six years earlier, an unidentified man had broken into the home of a 53-year-old woman and raped her at gunpoint. The case had remained unsolved until DNA from the rape kit was matched to the sample Maryland officers had taken from King at booking. King was charged in the 2003 rape. And the change in the Maryland law, allowing officers to collect samples not just from convicted felons but from arrestees of violent crimes, had made all the difference. If officers had waited on a conviction, they would never have been permitted to collect a DNA sample, as King pled the case to simple assault, a misdemeanor,4 which did not qualify for mandatory DNA collection upon conviction.5
So when King was indicted for the 2003 rape, he challenged Maryland’s DNA Collection Act that allowed police to collect DNA samples from arrestees. The trial judge ruled against King, but Maryland’s highest appellate court held that requiring a DNA sample from those who had not yet been convicted violated the Fourth Amendment and was unconstitutional.6 In a 5–4 decision, the Supreme Court of the United States reversed, upholding the constitutionality of the act.
Now, because of Maryland v. King, when police arrest anyone for a “serious offense,” they can require the arrested person to submit to a buccal swab for DNA—at least as far as the Fourth Amendment is concerned. Such a search for DNA might violate other laws, but it does not violate the Fourth Amendment. This holding alone is a tremendous victory for criminal justice. During oral argument, Justice Alito called Maryland v. King “perhaps the most important criminal procedure case” that the Supreme Court has heard in decades.7 It is significant because it now paves the way for states to expand DNA collection and unleashes a very powerful and very accurate law enforcement tool—a tool that can both “exonerate the wrongly convicted and … identify the guilty.”8
Maryland v. King is also likely to be significant for students of the law because it falls outside of the usual categories of Fourth Amendment cases. The Fourth Amendment provides a right of the people to be “secure in their persons” against unreasonable searches. Unsurprisingly, the court held that a buccal swab for DNA was a “search.”9 This would ordinarily require the police to have a warrant (or meet one of the exceptions to the warrant requirement) and develop probable cause or reasonable suspicion to believe the person they are searching is linked to criminal activity. In King’s case, there was neither a warrant nor anything particular about King to suggest he had committed another crime. But the court in King held that neither was required by the Fourth Amendment in these circumstances. There have been a handful of Supreme Court cases that required neither a warrant nor individualized suspicion, but the circumstances and rationales for these decisions have not been uniform. Some searches have been upheld because they were “designed to serve ‘special needs, beyond the normal need for law enforcement,’”10 others because of a diminished expectation of privacy or minimal intrusions,11 and still others because the requirement of a warrant would serve little purpose.12 Without claiming to be on all fours with any of the prior cases, the majority decision borrowed selectively from their rationales, ultimately adding Maryland v. King to a growing list of suspicionless—yet still reasonable—searches.
Having dispensed with the need for a warrant or individualized suspicion, the court then balanced law enforcement interests against privacy concerns. In the end, the needs of law enforcement won out. But it was not because of DNA’s importance in ferreting out crime and solving cold cases, as you might expect. Instead, the court said that it was DNA’s critical role in identifying, in a broad sense, the person taken into custody that justified a warrantless, suspicionless search. Like fingerprinting and other routine administrative procedures incident to booking, DNA’s ability to uncover an arrestee’s other crimes was a crucial part of law enforcement’s interest in knowing just whom they were handling, exposing to jail staff and other inmates, and potentially releasing on bail. Even though the DNA results in King’s case were not available for many months after his arrest, the court was aware that this may not always be the case. In the future, police agencies will likely have a hands-free instrument capable of producing a DNA profile within hours and able “to search unsolved crimes while an arrestee is in police custody during the booking process.”13 Ultimately, the court upheld the Maryland DNA collection law because a buccal swab is a minimal intrusion, people who are arrested on probable cause for a dangerous offense have a diminished expectation of privacy, and Maryland’s law provides inherent privacy protections (such as including in the profile only DNA material that would identify a person, not reveal genetic traits).
So what does the case mean for Texas?
Right now, Texas law does not allow DNA collection for a person in King’s situation: an arrestee with no prior convictions. If King had been in Texas when he committed his rape and was later arrested for brandishing a shotgun, the rape would have remained unsolved.
Under our DNA database law (Government Code §411.1471), to compel a DNA sample of an arrestee at the time of booking, the person must have a prior conviction or deferred adjudication, and only certain prior offenses (for the most part, sex offenses) count.14 Now that Maryland v. King has authorized DNA collection for persons arrested for (and not yet convicted of) serious crimes, our legislature may decide to follow suit and expand DNA collection to include arrestees with no known criminal history.
While Texas does not authorize DNA collection at the time of arrest, DNA can be compelled at the time of indictment for one of the enumerated sex offenses (which are likely to be considered “serious” under King).15 A prior conviction is not required once a person has been indicted for one of these offenses. And after King, the legislature may decide to expand the list of offenses to include “serious” offenses such as murder and aggravated assault, which do not currently qualify for DNA collection.
Strictly speaking, compelling a sample at the time of indictment differs from booking, which is when King’s sample was taken. One could argue that the timing of DNA collection at booking was a vital part of justifying the search in King because booking was the time of other administrative identification procedures incident to the arrest. But the court upheld the search in King even though under the Maryland statute, officers had to wait until after arraignment before they could begin processing a DNA sample.16 Given the majority’s tolerance for this delay (as well as the four-month lag in identifying King as the rapist he was), it is likely that collecting DNA at the time of indictment (and perhaps even later) will also be found constitutional. In any case, many of the individuals who would have had their DNA collected at the time of indictment will have already provided a DNA sample because the Code of Criminal Procedure requires such a sample as a condition of bond for these same accused offenders.17
Because the Texas statute, generally speaking, is more limited than Maryland’s, the court’s decision in King is unlikely to have any immediately effect on when officers can compel a suspect to provide a DNA sample in Texas. But by approving other states’ expansion of the pool of known offenders entered into DNA databases such as CODIS, Maryland v. King may already begin to have some impact on Texas cases. A larger pool will aid in solving cold cases, capturing escapees, and collecting evidence that could later identify perpetrators of crimes yet to be committed. Who knows? The DNA of these arrestees, those who are presumed innocent, may one day help exonerate those who are actually innocent.
1 Maryland v. King, No. 12-207, 133 S.Ct. 1958 (2013).
2 State v. Raines, 857 A.2d 19 (Md. 2004); Segundo v. State, 270 S.W.3d 79 (Tex. Crim. App. 2008); United States v. Mitchell, 652 F.3d 387, 402 (3d Cir. 2011) cert. denied, 132 S. Ct. 1741, 182 L. Ed. 2d 558 (U.S. 2012).
3 Md. Code, Public Safety §2-504(a)(3).
4 Md. Code, Crim. Law §3-203.
5 King v. State, 42 A.3d 549, 555 n.2 (Md. 2012); Md. Code, Public Safety, §2-504(a)(1) (allowing collection of DNA samples for those convicted of a felony, misdemeanor burglary of a building or vehicle).
6 King, 42 A.3d at 580.
7 Maryland v. King oral argument transcript, available at http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-207-lp23.pdf. A recording of oral arguments is also available at http://www.supremecourt.gov/oral_arguments/argument_audio.aspx
8 King, 133 S. Ct. at 1966.
9 Id. at 1968-69.
10 See New Jersey v. T.L.O., 469 U.S. 325, 351, 105 S. Ct. 733, 748, 83 L.Ed.2d 720 (1985) (Blackmun, J., concurring in judgment); Veronia Sch. Dist. 47J v. Acton, 515 U.S. 646, 654 (1995) (upholding drug testing of student athletes); Ferguson v. City of Charleston, 532 U.S. 67, 86 (2001) (striking down state hospital’s reporting pregnant women’s drug test results to law enforcement).
11 Samson v. California, 126 S. Ct. 2193, 2197-2202 (2006) (permitting warrantless searches of parolees without cause); Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 620 (1989) (upholding suspicionless drug testing of railroad employees).
12 Treasury Employees v. Von Raab, 489 U.S. 656, 680 (1989) (permitting susicionless drug testing of government employees).
13 CODIS and NDIS Fact Sheet, available at http://www.fbi.gov/about-us/lab/biometric-analysis/codis/codis-and-ndis-fact-sheet.
14 Tex. Gov’t Code §411.1471(a)(2). Please note that Texas does require DNA sample following conviction for a felony (see Tex. Gov. Code §411.148 ) or placement on probation (see Tex. Code Crim. Pro. art. 42.12, §11(e)(2)).
15 Tex. Gov’t Code §411.1471(a)(1).
16 Md. Code, Public Safety, §2-504(d)(1).
17 Tex. Code Crim. Proc. art. 17.47(b).