Last week, the Supreme Court of the United States weighed in for the first time on DNA cheek swabs collected incident to arrest before conviction. Maryland v. King, 133 S. Ct. 1958 (2013), held 5–4 that such a practice was akin to standard and routine identification procedures and therefore constitutionally permissible. Justice Scalia offered a scathing and ridiculing dissent (even for Scalia). This post explores the decision, the dissent, and the ultimate impact on Washington law.
Maryland v. King: Facts
Alonzo King raped a woman in 2003 and left behind his DNA. Police collected the DNA and put it into an “unsolved crimes” nationwide database, but had no other leads and did not match the DNA to anyone at that time. On April 10, 2009, police arrested Mr. King on first-degree assault charges. As part of a routine booking procedure incident to arrest, law enforcement obtained his DNA via cheek swab under state law authorizing procurement for anyone arrested for a “crime of violence” (first-degree assault qualifies). Four months later, authorities ran Mr. King’s DNA against the national database and matched his DNA to the 2003 unsolved rape. Mr. King appealed his conviction for that rape.
Maryland v. King: Kennedy’s Majority
The majority begins by acknowledging a DNA cheek swab as a search and seizure within the ambit of the Fourth Amendment, despite its negligible intrusion. However, the Court applies a pure “reasonableness” analysis, forsaking the need for individualized suspicion under these circumstances because the need for a warrant is greatly diminished where the arrestee is already in valid police custody supported by probable cause. The majority glosses over the fact that the DNA is collected before a judge determines that probable cause supports the arrest. Reasonableness analysis balances the promotion of legitimate government interests with the degree to which the search intrudes on a person’s privacy.
Ultimately, the majority finds routine collection of DNA is no different from searches incident to lawful arrest and routine collection of fingerprints or photographs during booking. Since DNA is so precise, it is the ultimate tool in properly identifying individuals and serves legitimate police concerns by accurately identifying individuals. This interest is not outweighed by privacy interests where the intrusion is so minimal. The intrusion is therefore reasonable.
Maryland v. King: Scalia’s Dissent
In a rabid dissent, Scalia argued individualized suspicion is an absolute must in cases where police conduct a search predominantly for normal law enforcement purposes (solving crimes and prosecuting offenders). DNA collection under the facts in King’s case is predominantly collected to solve unsolved crimes, and not, as the majority puts it, for identification purposes at all. This is so because the state did not process King’s DNA until four months after arrest. DNA collection is nothing like a search incident to arrest because those searches are allowed only for weapons, evidence that might easily be destroyed, or evidence relevant to the crime of arrest. Further, DNA collection is not tantamount to fingerprinting or photographing an arrestee. A person has no privacy interest in being photographed. And fingerprinting is legitimately used for identification purposes, unlike DNA, which is only purported to be used for that purpose. Finally, although the majority kept referring to the practice of DNA collection as it applies to those arrested for “serious” crimes, Scalia correctly pointed out there is nothing in the majority’s analysis that would prevent routine DNA collection for even the most minor offenders. Scalia closed his opinion by wishing for future repudiation of the majority’s holding and noting his doubt “that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.”
Although the state Supreme Court has approved DNA sampling of convicted felons without individualized suspicion in State v. Surge, 160 Wn.2d 96, 156 P.3d 208 (2007), the court has never expressly dealt with the issue in Maryland v. King. However, given our courts’ persistent insistence on individualized suspicion in pre-conviction searches under Article I, Section 7, it is an almost certainty that Washington courts would strike down the practice of pre-conviction DNA collection absent court order or warrant. See York v. Wahkiakum School Dist. No. 200, 163 Wn.2d 297, 178 P.3d 995 (2008) (recounting extensive case law requiring individualized suspicion); CrR 4.7(b)(2)(vi) (the court, on motion of either party and subject to constitutional limitations, may order the defendant to provide a biological sample as part of the pre-trial discovery process); CrRLJ 4.7(c)(1)(vi) (same for courts of limited jurisdiction).