King – Maryland and the Supreme Court – Part 1
This is the first of two parts published on www.warnkenlaw.com this week. Together, they make up one section of an article to be published in the Maryland Association of Justice’s Trial Reporter Magazine. To the read the whole article, subscribe to the MAJ.
King in Maryland and the Supreme Court
King v. State, 425 Md. 550 (2012).
The Maryland DNA Collection Act authorized the taking of a DNA sample from the Defendant because he was arrested and charged with first degree assault. Police collected a buccal swab from the Defendant, developed the Defendant’s DNA profile, and uploaded the profile to the statewide DNA database.
The Defendant’s DNA profile was linked to a DNA profile developed from semen found on a rape victim in 2003. The Defendant was indicted for rape based solely on the DNA match. Police extracted a second DNA sample from the Defendant pursuant to a search warrant, which also matched the DNA from the 2003 rape. The Defendant was convicted.
The Defendant contended that the first DNA sample collected and analyzed pursuant to the Collection Act, a “warrantless search conducted without any individualized suspicion of wrongdoing,” was an illegal search and seizure. The Court of Appeals concluded that it was illegal, as applied to the Defendant, because his expectation of privacy was greater than the State’s interest in using the Defendant’s DNA for the purpose of confirming the Defendant’s identity.
The Court made several observations about the Collection Act. Samples were taken from mere arrestees by authorized personnel pursuant to standards developed by the FBI. Samples could not be tested until the Defendant’s first scheduled arraignment. The subset of DNA strands chosen for testing by the FBI, known as “loci,” were thought to not reveal private information, but that point was debatable. When processed, samples were uploaded to state or federal databases. They were not accompanied by identifying information, criminal history, photographs, or fingerprints of the person to whom the sample belonged. The database was culled for matches between new entries and entries previously collected from crime scenes. Matches were not admissible at trial; they could only be used to support probable cause for a search warrant to take a second sample. Samples were required to be destroyed if the Defendant was not convicted. There were penalties for misuse and unauthorized testing.
The Court of Appeals determined whether the Defendant had an objectively reasonable expectation of privacy in his genetic material under Katz, 389 U.S. at 361, and balanced the Defendant’s privacy expectation against the government’s interests under United States v. Knights, 534 U.S. 112, 122 (2001).
The Court noted that, in Knights, a warrantless search of a probationer’s home could be conducted based on reasonable suspicion of wrongdoing because (1) the probationer’s expectation of privacy was diminished as a result of conviction; and (2) the government had a weighty interest in preventing recidivism and protecting the public from future crimes. Likewise, the Court noted that, in Samson v California, 547 U.S. 843 (2006), a warrantless search of a parolee in public was permitted because (1) parolees’ privacy expectations were diminished more than that of probationers as a result of stricter parole conditions; and (2) the government had a strong interest in preventing recidivism, given the higher rate of recidivism among parolees than probationers.
The Court then discussed State v. Raines, 383 Md. 1 (2004), in which a plurality of the Court of Appeals upheld the constitutionality of the Collection Act as applied to convicted felons. The Court stated that in Raines the Collection Act was constitutional as applied to convicted felons based on (1) the Defendant’s severely diminished expectation of privacy; (2) the lack of an expectation of privacy in the convicted person’s identity; and (3) the government’s interest in preventing recidivism and protecting the public. The Court noted that the Raines plurality distinguished identifying convicted felons from “searching ‘ordinary individuals for the purpose of gathering evidence against them in order to prosecute them for the very crimes that the search reveals.” Id. at 570 (quoting Raines, 383 Md. at 25).
The Court of Appeals noted that Judge Raker’s concurring opinion in Raines did not believe that the Defendant’s privacy expectation in his bodily fluids was severely diminished. However, Judge Raker agreed that DNA was like a fingerprint in that it only identified the Defendant. The Court also noted Judge Wilner’s concurring opinion, which stated that the Collection Act was designed to gather evidence of a crime rather than merely identify felons. Judge Wilner would have upheld the Act based on convicted persons’ high recidivism rates and the utility of DNA in identification.
The Court then discussed Williamson v. State, 413 Md. 521 (2010), in which the Court of Appeals upheld the seizure and analysis of DNA taken from a cup that the Defendant discarded. There was no search because the cup and the DNA it contained were abandoned.
The Court of Appeals concluded that the Knights balancing test weighed in favor of the Defendant. The Court focused on the “nature of the search,” even though the Collection Act restricted the use of the Defendant’s genetic material. The Defendant had “an expectation of privacy to be free from warrantless searches of his biological material and all of the information contained within that material.”
The search at issue was distinguishable from fingerprinting because (1) the police physically intruded into the Defendant’s body to take a buccal swab; and (2) DNA unquestionably provided much more than identifying information about an individual. The Court refused to turn a “blind eye to the vast genetic treasure map” contained in DNA, even though the Collection Act by its terms restricted improper use of such information.
According to the Court, the Defendant’s status as a mere arrestee increased his privacy expectation vis-à-vis convicted persons, and reduced the strength of the State’s interests. Additionally, it was not wise to blindly compare DNA to fingerprints and routine booking procedures when those procedures had not undergone Fourth Amendment scrutiny by the Supreme Court.
The Court held that conviction—not arrest and not formal charging—was the event that severely decreased an individual’s privacy expectation. This conclusion was supported by the fact that the Collection Act, by its terms, ordered expungement of DNA records if the individual was ultimately not convicted. The Court stressed that there were a significant number of individuals who were charged, but never convicted. Thus, the Collection Act permitted a significant number of samples to be taken without a judicial determination of guilt.
The Court distinguished the strength of the State’s identity interest in King vis-a-vis Raines. In Raines, the State had a strong interest in protecting the public and keeping a record of convicted felons, parolees, and probationers. In the context of mere arrestees, the Defendant’s genetic material was used only to solve a cold case. A warrantless, suspicionless search could not be based on such a generalized interest. The State’s asserted interest in accurate identification, through DNA analysis, was not strong enough to overcome the Defendant’s privacy expectations because the State could accurately identify the Defendant through traditional booking procedures. The State’s interest in accurate identity was further undermined by the fact that DNA analysis was complex and took about 30 days. This more intrusive practice could wait until the Defendant was found guilty because DNA profiles do not change over time.
The Court struck down the Collection Act as applied to most mere arrestees. However, it rejected the Defendant’s facial challenge because the State could obtain DNA samples without a warrant if an arrestee rendered traditional booking procedures useless by altering his or her fingernails or facial features. Such samples could be used only for identification.
