Maryland DNA Collection Law Turned on Its Head

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The Maryland Court of Appeals ruled today that significant portions of a law authorizing police to collect DNA samples at the time of arrest for suspects of violent crimes are unconstitutional.

Facts of King v. State

In April 2009, the appellant was arrested on charges of first- and second-degree assault in Wicomico County, Maryland, which were unrelated to the rape charge underlying the prosecution of the present case. As King was charged with a crime of violence, the Act authorized the collection of a DNA sample, and personnel at the Wicomico County Central Booking facility used a buccal swab to collect a DNA sample from King on the day of his arrest. The DNA sample was received and processed by the Maryland State Police Forensic Sciences Division and later analyzed by a private vendor laboratory. On July 13, 2009, the DNA record was uploaded to the Maryland DNA database, and on August 4, 2009, Detective Barry Tucker of the Salisbury Police Department received notice from the State Police that there had been a “hit” on King’s DNA profile in an unsolved rape case.

The DNA database “hit” identified King’s DNA profile as a match to a profile developed from a DNA sample collected in a 2003 unsolved rape case in Salisbury, Maryland. In that case, an unidentified man broke into the home of a 53-year-old woman named Vonette W. on September 21, 2003. The man, wearing a scarf over his face, a hat pulled over his head, and armed with a hand gun, entered Vonette W.’s bedroom, and ordered her not to look at him. While holding the gun to her head, he raped Vonette W.

After the rape, he left with Vonette W.’s purse. Vonette W. called her daughter immediately for help, and Salisbury Police officers arranged for the victim to be transported to Peninsula Regional Medical Center, where she underwent a sexual assault forensic examination. Semen was collected from a vaginal swab. The swab was processed, and the DNA profile was uploaded to the Maryland DNA database. No matches resulted at that time, and Vonette W. was unable to identify the man who attacked her other than to say that he was African-American, between 20 and 25 years old, five-foot-six inches tall, and with a light-to-medium physique. Police searched the area around the victim’s home and conducted interviews, but were unable to identify the attacker.

Detective Tucker presented the August 4, 2009, DNA database “hit” to a Wicomico County grand jury which, on October 13, 2009, returned an indictment against King for ten charges arising from the crimes committed against Vonette W., including first-degree rape. The DNA database “hit” was the only evidence of probable cause supporting the indictment. On November 18, 2009, Detective Tucker obtained a search warrant and collected a second buccal swab from King, which matched the sample collected from Vonette W. during the 2003 sexual assault forensic examination.

King filed a motion in the Circuit Court for Wicomico County to suppress evidence obtained through an illegal search and seizure. The thrust of King’s argument was that the DNA Act could not survive scrutiny under the Fourth Amendment, and therefore King’s arrest was invalid. He argued also that the State did not collect King’s first DNA sample in accordance with the procedures specified by the DNA Act and, therefore, that the indictment for the charges arising from the 2003 rape was invalid.

The hearing judge held a hearing on the motion and solicited memoranda of law on the illegal search-and-seizure issue raised at the hearing. In a memorandum opinion issued on February 26, 2009, the hearing judge denied King’s motion to suppress, upholding the constitutionality of the Maryland DNA Collection Act’s authorization to collect DNA.

Court’s Holding

The court found that if you are only arrested – as opposed to charged and processed – and there is no warrant, you should be free from “unreasonable” searches. Accordingly, the court tossed a significant portion of the Maryland DNA Collection Act which authorizes law enforcement to collect DNA samples from suspects who have been arrested.

So the court held that § 2-504(3) of the Maryland DNA Collection Act, which permits the collection of DNA from individuals who have been arrested for but not yet convicted of crimes of violence and burglary, is unconstitutional.

The court reached this decision by applying the Fourth Amendment totality of the circumstances balancing test to the facts of the case, which found that King’s expectation of privacy was greater than the state’s purported interest in using his DNA to identify him for his arrest on assault charges in 2009. As a result of this ruling, King’s DNA was collected unconstitutionally, and the evidence presented at his trial should have been suppressed as “fruit of the poisonous tree.”  Therefore, the court reversed the judgment of the Circuit Court for Wicomico County and remanded the case for a new trial in accordance with the opinion expressed in the ruling.

Why I Disagree with the Court’s Holding

Judges Barbera and Wilner dissented from the majority opinion. These judges believe that the majority decision to hold that the police violated King’s Fourth Amendment rights by taking a DNA sample via a buccal swab is incorrect. The dissenting judges believe s that the majority overemphasized King’s privacy interests and underestimated the state’s interest in collecting arrestee DNA. The dissenting opinion asserts that the buccal swab is a minimal intrusion and that the DNA collection statute prohibits the plundering of genetic information. The dissenting opinion concludes that the majority’s decision was flawed and that the DNA evidence presented at trial should not have been suppressed.

I would dissented, too. I just don’t think DNA is an unreasonable search, I really don’t.