A blog of the Philadelphia Bar Association’s Criminal Justice Section

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By Burt Rose

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The SUPREME COURT OF THE UNITED STATES has issued an Opinion in the matter of MARYLAND, PETITIONER v.ALONZO JAY KING, JR., No. 12–207 (June 3, 2013). Justice KENNEDY delivered the opinion of the Court, in which ROBERTS, C. J., and THOMAS, BREYER, and ALITO, JJ., joined. Justice SCALIA filed a dissenting opinion, in which GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined.

In 2003 a man concealing his face and armed with a gun broke into a woman’s home in Maryland. He raped her. The police were unable to identify or apprehend the assailant based on any detailed description or other evidence they then had, but they did obtain from the victim a sample of the perpetrator’s DNA. In 2009 Alonzo King was arrested in Maryland and charged with assault for menacing a group of people with a shotgun. As part of a routine booking procedure for serious offenses, his DNA sample was taken by applying a cotton swab or filter paper—known as a buccal swab—to the inside of his cheeks. The DNA was found to match the DNA taken from the Salisbury rape victim. King was tried and convicted for the rape; it was the DNA from the cheek sample taken at the time he was booked in 2009 that led to his first having been linked to the rape. The Court of Appeals of Maryland, on review of the rape conviction, ruled that the DNA taken when King was booked for the 2009 charge was an unlawful seizure because obtaining and using the cheek swab was an unreasonable search of the person, and set the rape conviction aside. See 425 Md. 550, 42 A. 3d 549.

Today, the U.S. Supreme Court reversed the judgment of the Maryland court.

The DNA swab procedure used here presented a question the Court had not yet addressed. The Maryland DNA Collection Act provides that, in order to obtain a DNA sample, all arrestees charged with serious crimes must furnish the sample on a buccal swab applied to the inside of the cheeks. Justice Kennedy noted that an arrestee will be already in valid police custody for a serious offense supported by probable cause. The fact of a lawful arrest, standing alone, authorized this search. Furthermore, a buccal swab involves a brief and minimal intrusion; “a gentle rub along the inside of the cheek” does not break the skin and involves virtually no risk, trauma, or pain.

Like a fingerprint, the DNA collected from arrestees is an irrefutable identification of the person from whom it was taken. Present capabilities make it possible to promptly complete a DNA identification that provides information essential to determining whether a detained suspect can be released pending trial. The Court said that the State may use an accepted database to determine if an arrestee is the object of suspicion in other serious crimes, as that may provide a strong incentive for the arrestee to escape and flee.

Thus the Court concluded that DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure. When officers make an arrest supported by probable cause for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.

Note: Justice Scalia wrote in dissent that the Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, “taxes the credulity of the credulous”. When it comes to the Fourth Amendment, this guy is strong.

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