“Why isn’t this the fingerprinting of the 21st century?”
So posed United States Supreme Court Justice Samuel A. Alito, Jr. in recent oral arguments challenging the warrantless sampling of DNA from individuals arrested for serious crimes.
InMaryland v. King, the defendant, Alonzo Jay King, was arrested for first- and second-degree assault in 2009. Pursuant to the Maryland DNA Collection Act, the police, without a warrant, took a sample of Mr. King’s DNA by swabbing his cheek (also called a buccal swab). His DNA profile matched evidence from an unsolved rape case in 2003. Ultimately, Mr. King was convicted of first-degree rape and sentenced to life in prison without parole.
Mr. King contested the ruling, arguing that the buccal swab was taken without a warrant thereby constituting an unreasonable search and violating his Fourth Amendment rights.
But if, as Justice Alito rhetorically suggested, DNA samples are simply “the 21st Century fingerprint”, what’s the big deal? Those who are arrested for crimes must routinely submit to fingerprinting. Why is a simple cheek swab so different?
Both fingerprints and DNA samples are valuable forensic tools for personal and criminal identification. While the swabbing of a cheek is seemingly a “minimal” intrusion, the taking of a fingerprint is undoubtedly less intrusive than the collection and analysis of DNA samples – contact with a part of the body exposed to public view versus an intrusion into the body. More importantly, DNA samples are certainly not limited to establishing identification, but may be used to determine whether that individual had committed other crimes in the past. A simple swab of the cheek will potentially implicate an individual where there was not even a reasonable suspicion that person was the perpetrator of a wholly different crime.
DNA sampling of convicted individuals is legal in all 50 states. However, only 28 of those states allow DNA samples to be taken without a warrant from individuals who have only been arrested. All 50 states are no doubt paying attention to what Justice Alito would later describe as, “perhaps the most important criminal procedure case that this court has heard in decades.”
It also poses important questions about the manner in which states can interpret the Fourth Amendment. As part of an ongoing battle between increasingly invasive technologies for crime-solving purposes and our right to privacy, our protection against unreasonable searches and seizures continues to be eroded by a number of exceptions. Will the Court develop yet another exception to established Fourth Amendment rules based on new technology?
This is one of many questions placed before the U.S. Supreme Court recently, and we are eager to hear the opinion they ultimately hand down, not only because of its immediate implications for Maryland criminal procedure, but for the Fourth Amendment rights of citizens throughout the country.