Even the most casual observer of the Supreme Court recognizes that an opinion authored by Justice Scalia and joined by Justices Ginsburg, Sotomayor and Kagan is not common. And yet in Maryland v. King, it was this combination of Justices that dissented from the Court's decision that upheld the warrantless practice of taking and analyzing a cheek swab of a suspect's DNA when the person is arrested based upon probable cause for a serious offense.
Maryland's DNA Collection Act permits state law enforcement officers to collect DNA samples from persons charged with crimes of violence or attempts to commit crimes of violence as well as burglaries and attempted burglaries. Murder, rape, first-degree assault, kidnapping, arson and sexual assaults are among the crimes that constitute crimes of violence. Although the DNA sample may be taken before the arraignment, absent consent it cannot be processed before arraignment. If probable cause is not found at arraignment for at least one of the qualifying offenses the sample must be destroyed.
The collection and processing of DNA pursuant to the Maryland statute is only for identification purposes, and, in fact, the statute provides that the DNA records relating to only "the identification of individuals shall be collected and stored." §2–505(b)(1). For example, tests for familial matches are prohibited.
Alonzo King was arrested in Maryland in 2009 and charged with first and second degree assault after he menaced a group of people with a shotgun. Pursuant to the Maryland DNA Collection statute, during his arrest processing a DNA sample was taken from King using a buccal swab, which involves the painless procedure in which a swab is rubbed against the inside of a person's mouth in order to collect skin cells. Approximately three months later, King's DNA record was put into the Maryland DNA database. Three weeks after that, it was determined that King's DNA match a DNA sample that had been collected from the victim of an open rape from 2003 that had occurred in Salisbury, Maryland.
Maryland v. King, 133 S. Ct. 1958 (2013) [enhanced version available to lexis.com subscribers].
Jay Shapiro is a partner in the New York office of White and Williams LLP. Jay has more than 30 years experience concentrating his practice in litigation matters. He began his legal career as a prosecutor in the Bronx County District Attorney's Office (1980-1988) and later joined the King's County District Attorney's Office (1990-2002) where he became the Deputy District Attorney in charge of the Rackets Division before going into private practice. Mr. Shapiro has tried more than thirty-five cases in state and federal court. In private practice, he has handled litigation involving insurance fraud, white collar crime and Lanham Act (trademark) violations.
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