Genetic profiling: DNA case possibly headed to the Supreme Court

The Supreme Court may hear a case next term reminiscent of George Orwell’s book 1984. Chief Justice John Roberts indicated this week that the Court may reverse the Maryland Court of Appeals’ decision on the state’s DNA Collection Act, thereby permitting police officers to collect arrestees’ DNA samples without warrants. A Supreme Court reversal would also significantly narrow Fourth Amendment protections against unreasonable searches and seizures.

According to the Maryland DNA Collection Act, once you are arrested, the police can take a warrantless sample of your DNA before you are even convicted, and permanently enter it into a DNA crime database. However, in April, the Maryland Court of Appeals — the highest court in the state — held that the law was unconstitutional under the Fourth Amendment. Since then, Maryland prosecutors have appealed the case to the Supreme Court. The Supreme Court has not yet agreed to hear the case, but Chief Justice Roberts stayed the Maryland court’s judgment and mandate on Monday, strongly suggesting that the Court will hear and reverse the case. The stay also means that the DNA Collection Act is back in force until and unless the Supreme Court denies the government’s petition to hear the case.

The case, King v. Maryland, was brought by Alonzo King after a DNA search permitted by the DNA Collection Act led to his conviction for first-degree rape. In 2009, King was arrested for first- and second-degree assault. On the day of his arrest, his cheek was swabbed and his DNA was entered into the Maryland DNA database. Before he was convicted on the assault charges, a match was found between King’s DNA and evidence collected from the unrelated 2003 rape of a 53-year-old Salisbury, Maryland, woman. In April 2012, Maryland Court of Appeals Judge Glenn Harrell held that an arrestee’s expectation of privacy not to be subjected to warrantless searches outweighed the state’s general interest in swabbing presumably innocent persons to solve cold cases. Therefore, the DNA Collection Act was unconstitutional under the Fourth Amendment.

Prosecutors appealed and requested that the Supreme Court stay the judgment while the Court decides whether it will hear the case. In order to stay a judgment, the petitioner has to demonstrate that there is a reasonable probability that the Court will hear the case, a fair prospect that the decision will be reversed, and a likelihood of irreparable harm should the stay not be granted. Roberts agreed with the prosecutors that all of these conditions were met. Principally, Roberts was concerned with how the Maryland court’s outcome varies from other states that have upheld their DNA collection laws.

However, while harmonizing state law is important, so too is the Fourth Amendment. Unconstitutional state laws should be overturned, not replicated. Indeed, just because collecting arrestees’ DNA samples is easy does not make it constitutional.

Moreover, if the Supreme Court reverses the Maryland Court of Appeals’ decision, there could be dire consequences for Fourth Amendment rights. The Fourth Amendment protects against unreasonable searches and seizures and requires probable cause to obtain a warrant. Yet, Maryland law allows police officers to “search” a person’s biological identity at their discretion without a warrant. In a 1980 case, Walter v. United States, the Supreme Court held that the police need to have probable cause to search containers. Thus, a reversal in King would mean that police officers need more articulable reasons to search a limited physical area than they need to “search” the core of one’s biological identity.