In 2003, New Mexico college student Katie Sepich, 22, was brutally raped and murdered.  DNA was collected but there was no match in the national database.  Three years later, New Mexico passed a DNA collection law, authorizing the collection of a buccal DNA swab at the time a person was arrested for certain crimes.  Over the past few years about half the states have enacted similar statutes. 

Eventually, New Mexico authorities were able to match the unknown DNA sample to that of a man arrested for another crime, years after the murder. Known as Katie’s Law, about half the states now allow DNA swabs to be taken from persons arrested (but not yet convicted) for certain crimes, mainly violent felonies.  These statutes have greatly enlarged the number of DNA profiles in the national database.

Now those laws will be tested in Maryland v. King, a case to be heard by the U.S. Supreme Court.  The issues are very similar to the New Mexico case.

Alonzo King was arrested in Maryland for a first degree assault in 2009.  Pursuant to the Maryland DNA Collection Act, a DNA sample was collected from him by using a buccal swab and entered into the database.  His DNA sample was matched to an unsolved 2003 sexual assault case.

Based upon the “hit,” King was indicted.  His motion to suppress was heard and denied.  He later pled guilty, reserving his right to appeal the constitutionality of the statute.  Both the Maryland Court of Appeals and Maryland Supreme Court agreed with King and set aside his conviction.  Their reasoning was that the DNA collection was not necessary to identify who was arrested; the fingerprints and photos sufficed for that.  The swab was done to investigate other crimes, and for that a warrant was needed for the bodily intrusion.  They only declared the statute unconstitutional as applied to King, as there might be some instances where DNA was necessary to identify the arrestee.

The State of Maryland petitioned the U.S. Supreme Court to review this Fourth Amendment question.

The issues are:

Maryland argues that DNA is just an extension of fingerprinting and other tools for identifying suspects, “the Fourth Amendment legitimacy of which has never been seriously doubted.”  It is also argued that the swabbing is not such a bodily intrusion as to be unreasonable under the Fourth Amendment.

But opponents argue that taking DNA from people upon arrest is to help in other investigations, not to identify the person already under arrest, thus errrors in the collection and evaluation may lead to false convictions.

The 49 other states have signed a brief supporting Maryland’s appeal.  That brief argues that “Behind every number is a human story, a case in which a buccal swab sample collected from a felony arrestee played a crucial role in solving a violent crime.”

Those of us in this business for a while realize that the results of the search can never justify the search.  Either it is permissible at the time or not. 

According to the Maryland Supreme Court, “King, as an arrestee, had an expectation of privacy to be free from warrantless searches of his biological material and all of the information contained within that material.  A DNA sample, obtained through a buccal swab, contains within it unarguably much more than a person’s identity.”

What will happen remains to be seen.  The “Rule of Four,” requires the court to hear the appeal if four justices so rule.  How they, or the other justices will ultimately vote, is another question.  However, there is one hint.

Chief Justice Roberts stayed the opinion below pending review by the full court, stating, “Collecting DNA from individuals arrested for violent felonies provides a valuable tool for investigating unsolved crimes and thereby helping to remove violent offenders from the general population.” 

The full court will have to apply the standard “balancing test” employed in Fourth Amendment cases;  the privacy interests of the individual against the legitimate government interests promoted by the search.  To be considered is that persons arrested go through the indignity of searches (of his person and personal possessions), possible strip-searches (and body cavity searches), constant observation (by police and cellmates) and pre-trial incarceration. Regardless of the level of personal interference, there is clearly a diminished expectation of privacy.  To this we compare the “invasiveness” of the buccal swab, called “perhaps the least intrusive of all seizures,” in the scientific literature.

David M. Waksman, J.D., is a nationally known former homicide prosecutor with vast experience in trying violent offenders and a former sergeant with the NYPD. He served for 35 years with the Miami-Dade (Fla.) State Attorney’s Office, primarily in the Major Crimes Division. He teaches Case Preparation and Courtroom Presentation, Police Involved Shootings, Injury and Death Investigation and Criminal Law at the Miami Dade College School of Justice, In-Service Training Unit and at various police departments in South Florida.  His specialty is Fourth and Fifth Amendment issues. He has tried almost 200 jury trials, including 79 for first-degree murder. He is the author of the Search and Seizure Handbook, 3/ed.  It was cited by the United States Supreme Court in Hudson v. Michigan, 547 U.S. 586 (2006), available from Prentice Hall. He can be reached at [email protected], or thru LET.