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Maryland v. King: DNA ID of Arrestee is Constitutional

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By William Peacock, Esq. on June 03, 2013 2:48 PM

In 2009, Alonzo King allegedly menaced a group of people with a shotgun. He was arrested and charged with first- and second-degree assault. During booking, officers swabbed his cheek for purposes of DNA identification. His DNA matched an unsolved 2003 rape case. After additional samples were obtained from King, the match was verified and he was convicted of the cold-case rape.

The FBI DNA identification standard used, which is required of all laboratories participating in the 50 state and federal Combined DNA Index System (CODIS), tests 13 CODIS loci from non-identifying “junk DNA,” which contain sufficient information to identify a person to a near-certainty (about 1 in 100 trillion). This minimizes privacy concerns, as the junk non-coding DNA is only useful for identification purposes, and contains no information on genetic traits, disorders, or dispositions.

In an ideologically-odd 5-4 decision, with conservative and liberal members on both sides of the split, the court reversed the Maryland Supreme Court and reinstated King’s conviction, finding DNA identification to be a reasonable search and an evolution of traditional police identification procedures.

Fourth Amendment Reasonableness

Justice Kennedy's opinion began and ended with a discussion of the Fourth Amendment's requirement of a reasonable search.

DNA swabs are arguably minimally intrusive. It's a Q-tip rubbed in your mouth, not a surgical operation or even a blood draw. At the same time, the results have vast benefits, such as protecting officers from a violent or mentally-ill person using false identification, or in making bail determinations.

The court also repeatedly referenced the restrictive Maryland statute, which only allows swabbing of those arrested for "serious" and "violent" offenses, such as assault, murder, or sexual assault. Furthermore, if the person is not convicted, all traces of their DNA in the system are destroyed.

Rogues' Gallery Evolved

Mugshots became common as soon as photography was invented. Police forces eventually adopted the Bertillon System, which is a set of bodily measurements (height, facial description, scars, etc.). The Bertillon cards, with photos, were kept (and shared with other departments) as part of each station's "Rogues' Gallery."

Then came fingerprinting. The court quoted Judge Augustus Hand, who approved the use of fingerprinting as a "very certain means devised by modern science to reach the desired end ..." The same argument is made by the majority. DNA identification is a scientifically-proven means of identification and merely an evolution of the Bertillion, mugshot, and fingerprint methods.

Dissent

Scalia, who authored last week's key dissent, was again the voice of the minority. Joined by Ginsbug, Sotomayor, and Kagan, his dissent argued that the DNA was being used for investigative purposes, not identification. Investigative searches require an additional justifying motive in order to comply with the Fourth Amendment's restrictions.

Under the Maryland law, the DNA isn't tested until after arraignment. By then, even if King was a violent psychopath with a past, it would've been too late. In fact, it took four months to find a match, long after King was released and awaiting trial. Finally, his DNA was ran against the unsolved crimes database in CODIS, which is no help whatsoever in identifying him. It only helps investigation.

And that same Maryland statute? It explicitly states that one of the purposes is to investigate unsolved crimes. Nowhere does it mention identifying arrestees.

"Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches. The Fourth Amendment must prevail.

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