Arrestee number two, who are you? Suspicionless DNA testing of pre-trial arrestees and the Fourth Amendment implications.

• Author: Hall, Lesley A.
• Position: NOTE

Maryland v. King, 133 S. Ct. 1958 (2013)

1. Introduction

   On September 21, 2003, a man broke into the home of Vonette W., a fifty-three-year-old Salisbury, Maryland, resident, and raped her at gunpoint. (1) The crime was not solved for another six years, when a DNA test revealed the identity of her attacker. (2) That attack propelled a Fourth Amendment fight in the Maryland state court system over whether suspicionless DNA (3) testing of pre-trial arrestees was unreasonable under the Fourth Amendment, an issue ultimately resolved in the Supreme Court of the United States. (4)

   This Note discusses the resolution of that constitutional battle, Maryland v. King, where the U.S. Supreme Court held that DNA testing of pre-trial arrestees was reasonable under the Fourth Amendment as a routine booking procedure. (5) The Court also held that DNA testing's use for arrestee identification permitted its use as a tool to investigate suspicionless crimes. (6) Part II analyzes the facts and holding of Maryland v. King. Part III discusses Fourth Amendment jurisprudence, including court-established tests used to ascertain whether a particular search is reasonable. Part IV examines the United States Supreme Court's rationale in King, including Justice Scalia's dissent, joined by Justices Ginsburg, Sotomayor, and Kagan. Lastly, Part V analyzes why the majority erred in determining that suspicionless DNA tests were reasonable under the Fourth Amendment, how the holding further blurs Fourth Amendment exceptions, and how the holding diminishes the Fourth Amendment's power to protect an arrestee's expectation of privacy. This Note ends by discussing certain issues on which the Court remained silent in its opinion, issues that could prove dispositive in future cases.

2. Facts and Holding

   On September 21, 2003, a man broke into Vonette W.'s Salisbury, Maryland, home. (7) The man wore a scarf to conceal his identity and ordered Vonette W. not to look at him. (8) The attacker raped Vonette W. at gunpoint and tied with her purse. (9) An ambulance took Vonette W. to Peninsula Regional Medical Center, where she underwent a forensic examination for sexual assault. (10) Semen was collected on a vaginal swab, the swab was subsequently processed, and the DNA was uploaded to the Maryland DNA database. (11) No matches resulted from sample comparisons in the DNA database, and Vonette W. was unable to positively identify her attacker. (12)

   On April 10, 2009, approximately six years after Vonette W.'s attack, Alonzo Jay King, Jr. ("King") was arrested in Wicomico County, Maryland, after being accused of scaring a group of people with a shotgun. He was charged with first- and second-degree assault. (13) As part of their booking procedure, the Wicomico County police used a cheek swab to take a DNA sample from King, which was authorized by the Maryland DNA Collection Act ("Maryland Act"). (14)

   Prior to his April 2009 assault arrest, King was not a suspect in the Vonette W. rape. However, on August 4, 2009, the Combined DNA Index System ("CODIS") (15) provided the Salisbury police with a "hit" on King's DNA profile."' CODIS also informed the Wicomico County, Maryland, police that a DNA sample matched their sample. (17) Wicomico County police then identified the arrestee to whom that DNA sample belonged. (18)

   On October 13, 2009, Detective Barry Tucker of the Salisbury Police Department presented the DNA findings to a grand jury, which returned with an indictment against King for ten charges in the Vonette W. rape. (19) The DNA hit provided Detective Tucker with probable cause for the indictment and with probable cause for Detective Tucker to acquire a search warrant to obtain another buccal swab (20) from King. (21) King filed a motion to suppress in the Circuit Court for Wicomico County, claiming that the Maryland Act that authorized the initial post-arrest buccal swab violated King's Fourth Amendment right against unreasonable searches and seizures. The Circuit Court denied King's motion to suppress. (23) King pled not guilty to the rape charges, and after a trial was convicted and sentenced to life in prison without the possibility of parole for the rape. (24) The Maryland Court of Appeals reversed, holding that the section of the Maryland DNA Collection Act, which allowed DNA collection from pre-trial arrestees, violated the Fourth Amendment of the United States Constitution. (25)

   Maryland appealed, and on June 3, 2013, the U.S. Supreme Court granted certiorari. (26) In a 5-4 decision, the Court held that "DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure." (27) Specifically, the Court held that when officers made an arrest supported by probable cause to hold for a serious crime, taking and analyzing a buccal swab of the arrestee's cheek was a legitimate booking procedure that assisted officers in identifying the arrestee. (28) Justice Scalia wrote the dissenting opinion, joined by Justices Ginsberg, Sotomayor, and Kagan. (29) The dissent stated that DNA testing of pre-trial arrestees did not identify arrestees as part of the booking procedure and instead was an unconstitutional suspicionless search for criminal investigatory purposes. (30)

3. Legal Background

   The Fourth Amendment is an essential source of individual protection against illegal state intrusion, especially protecting those individuals accused of committing criminal acts. (31) The Fourth Amendment to the U.S. Constitution states as follows:

   The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (32) The touchstone of Fourth Amendment analysis has been the question of reasonableness. (33) Whether the government is investigating a crime or performing a noncriminal investigation determines what must be demonstrated to "search" and "seize" without violating the Fourth Amendment. (34) Section A discusses the standard for determining whether a governmental action constitutes a Fourth Amendment search. Section B considers the standard required of law enforcement officers investigating a crime. Section C analyzes the government's burden in noncriminal administrative searches. Section D examines the totality of the circumstances test that courts often use to determine Fourth Amendment reasonableness. Section E discusses DNA testing of arrestees and what federal courts have held. Finally, Section F discusses the Maryland DNA Act.

   1. The Fourth Amendment and the Reasonable Expectation of Privacy Standard

      To determine whether a search was reasonable, the initial question must be whether a governmental act was actually a Fourth Amendment search. DNA testing, according to the Court in King, was a search governed by the Fourth Amendment. (35) In Katz v. U.S., (36) Charles Katz was convicted of transmitting wagering information by telephone from California to Florida and Massachusetts. (37) The federal government recorded Katz's telephone conversation while in a public telephone booth using an electronic listening and recording device placed on the outside of the telephone booth. (38) The Court held that the government's eavesdropping into the public telephone booth violated the Fourth Amendment, explaining that the Fourth Amendment "protects people--and not simply 'areas'--against unreasonable searches and seizures." (39)

      In Katz, Justice Harlan's concurrence established a two-part test: first, that a person exhibited an actual, subjective expectation of privacy, and second, that the expectation of privacy was one that society recognized as reasonable. (40) Jurisprudence extending from Katz further defined the test and provided instructions for courts and governmental actors on whether a person or her actions are protected from governmental intrusion under the Fourth Amendment. (41)

   2. The Fourth Amendment Probable Cause Standard

      Fourth Amendment case law has interpreted the "reasonableness" requirement of the Fourth Amendment to mean that, while pursuing a criminal investigation, law enforcement officials must have probable cause to execute a warrantless arrest and search. (42) In King, the Court analyzed whether the Fourth Amendment required probable cause of a particular crime before law enforcement swabbed King's cheek. (43) The Fourth Amendment speaks only to warrants requiring probable cause, stating that "no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." (44) The Court in Henry v. United States interpreted the Fourth Amendment to require that a police officer have probable cause to arrest a suspect and perform a search incident to that arrest. (45)

      The Fourth Amendment has been interpreted to require a finding of probable cause to arrest a suspect and perform a search incident to that arrest because the Amendment's text included a prohibition on the unreasonable "search and seizure" of persons. (46) In Tennesee v. Garner, the Court held that when a police officer restrained the freedom of a person to walk away, he has seized that person. (47)

      The Court has interpreted the Fourth Amendment to require a finding of probable cause to arrest a suspect. (48) In Wong Sun v. United States, the Court held that probable cause created a reasonable person standard and that the police officer must have "evidence which would warrant a man of reasonable caution and belief that a [crime] has been committed." (49) The Court also held that probable cause is fact-specific and established the minimum standard applicable to warrantless arrests. (50) The objective of the probable cause standard was to prevent unfounded arrests, or arrests on...