Maryland v. King: Is Big Brother Coming to Get Your DNA?

Yesterday I discussed whether the massive data mining efforts of the U.S. government presaged a Big Brother like invasion of privacy.

Today I’ll consider the implications of government efforts to develop massive DNA databanks in order to solve crimes.

In 2003 a man broke into a woman’s home in Maryland and raped her at gunpoint. Because his face was concealed she was unable to identify him. The police however, were able to recover the perpetrator’s DNA.

Six years later Alonzo King was arrested for assault. As part of a routine booking procedure, his jailers applied a cotton swab to the inside of Mr. King’s mouth in order to collect his DNA and add Mr. King’s DNA profile to a databank. Mr. King’s DNA matched that of the perpetrator of the 2003 rape and eventually Mr. King was convicted of that crime.

The Fourth Amendment of the US Constitution provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The issue decided by the Supreme Court in Maryland v. King is whether the taking of Mr. King’s DNA by means of the application of a cotton swab as part of the routine booking procedure violates the protections of the Fourth Amendment.

The Supreme Court stated that although the swabbing the inside of Mr. King’s cheek clearly constituted a “search” for the purpose of the Fourth Amendment, it found the search to be “reasonable” despite the fact there was no probable cause to believe Mr. King committed the rape when the search occurred. The Court held, “rather than employing a per se rule of unreasonableness, we balance the privacy-related and law enforcement-related concerns to determine if the intrusion was reasonable.” Citing, Illinois v. McArthur (2001). The Court found there is a legitimate government interest to “process and identify the persons and possessions they must take into custody.” The Court stated, “The DNA collected from arrestees is an irrefutable identification of the person from whom it was taken.” The Court reasoned the taking of the DNA not only identified that person, but also would inform the prison of his prior criminal history, solved and unsolved, and better permit the arresting agency access the danger to the community presented by his release. Also, in 1932 the Supreme Court held that it was permissible to take the fingerprints of arrestees, and the present Court considered taking the arrestee’s DNA to be the twenty-first analog to the collection of fingerprints.

Four of the nine justices dissented from this ruling. Justice Scalia noted that although in limited instances the Court has permitted searches without individualized suspicion, it has never done so when the purpose of the search was to gather evidence to solve crimes. The dissenters scoffed at the assertion that the DNA is gathered in order to identify the arrestee. They noted that currently the bond determination of the arrestee is made months before the arrestees’ DNA is analyzed in the laboratory. With respect to the fingerprinting analogy Scalia argues that fingerprinting really is about identifying the suspect. (It is important to get John Doe’s fingerprints in order to make sure he is not confused with another John Doe.) Scalia also expressed concern that the Court’s decision will eventually result in the taking of DNA just because someone is stopped for a traffic offense.

Certainly, the Court’s decision in Maryland v. King is a positive development for solving crimes. However, the basis of the decision, that such DNA collection is necessary for the identification of the prisoner, is almost laughable. The “real” holding is that the Court believes that taking DNA is such a minimal intrusion that the laudable goal of solving crimes outweighs such an intrusion. The proverbial “slippery slope” seems to apply with force here, and one is left to wonder what will eventually stop the government from collecting the DNA of all of its citizens in order to advance its interests in the never-ending war on terror. If such a government databank were to ever exist, the idea that the keys to such an enormous bank were to ever fall into the hands of a personality such as that of President Nixon, is truly the stuff of an Orwellian nightmare.

Mick Mickelsen is a nationally recognized criminal trial attorney with more than 30 years of experience defending people charged with white-collar crimes, drug offenses, sex crimes, murder, and other serious state and federal offenses.