In MARYLAND V. KING, 569 U.S. ___ (2013), the United States Supreme
Court decided that "when officers make an arrest supported by probable
cause to hold for a serious offense and 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 ." The majority opinion, written by Justice Anthony
Kennedy , described Maryland's law as follows:
The Act authorizes Maryland law enforcement authorities to collect
DNA samples from "an individual who is charged with... a crime of
violence or an attempt to commit a crime of violence; or... burglary
or an attempt to commit burglary."
Maryland law defines a crime of violence to include murder, rape,
first-degree assault, kidnaping, arson, sexual assault, and a variety
of other serious crimes. Once taken, a
DNA sample may not be processed
or placed in a database before the individual is arraigned (unless the
individual consents). It is then that a judicial officer ensures that
there is probable cause to detain the arrestee on a qualifying serious
If "all qualifying criminal charges are determined to be unsupported
by probable cause... the
DNA sample shall be immediately destroyed."
DNA samples are also destroyed if "a criminal action begun against the
individual... does not result in a conviction,... the conviction is
finally reversed or vacated and no new trial is permitted "or "the
individual is granted an unconditional pardon."
133 S.Ct. at 1967 (citations to the Maryland statute omitted).
The majority balanced state interests relating to detaining and
charging arrestees against the affected individuals' interests in
their bodily integrity and informational privacy. It concluded that it
is constitutionally reasonable for the state to undertake the
"negligible" physical intrusion of swabbing the inside of the
legitimately detained arrestee's cheeks and using limited data from
DNA to determine whether the individual might be associated with a
crime scene or victim.
* 1 Background
* 2 Decision
* 3 Genetic and law enforcement technology used
* 4 Implications
* 5 Briefs
* 6 Criticism
* 7 References
* 8 Further reading
* 9 External links
The case was heard before the Supreme Court in February 2013, and a
verdict was released four months later, in June 2013. Dr. Steven D.
Schwinn's article titled "Fourth Amendment," published by the American
Bar Association, best gives a full detailed progression of the case.
Alonzo Jay King Jr. was arrested for first- and second-degree assault.
As according to Maryland police protocol, the Maryland
DNA sample was taken from King at the time of the arrest and
entered into Maryland's database. It was matched to an unsolved rape
case in 2003.
A Maryland officer presented the evidence to a Wicomico County grand
jury, which called for an indictment, procured a warrant to obtain a
DNA sample that could be used as incriminating evidence
for the 2003 rape case.
King filed a motion to suppress the
DNA evidence, stating that it
infringed upon his Fourth Amendment rights, which prohibit
unreasonable searches and seizures, in the Circuit Court for Wicomico
County. His motion was denied, and King pleaded not guilty to the
charge of rape and appealed the ruling. The Maryland Court of Appeals
then reversed the original ruling, agreeing that the
DNA sampling was
a violation of the Fourth Amendment and could not be used as evidence.
The State of Maryland then appealed the ruling and called for the
case to be reviewed by the Supreme Court of the United States.
The decision was close, 5-4 in favor of Maryland. Justice Antonin
Scalia , joined by Justices
Ruth Bader Ginsburg
Ruth Bader Ginsburg ,
Sonia Sotomayor ,
Elena Kagan , filed a scathing dissenting opinion. The justices
maintained that "categorically" and "without exception," "The Fourth
Amendment forbids searching a person for evidence of a crime when
there is no basis for believing the person is guilty of the crime or
is in possession of incriminating evidence" (133 S.Ct. at 1980). Some
Supreme Court cases seem to contradict the claim.
The dissent also warned that "because of today's decision, your DNA
can be taken and entered into a national database if you are ever
arrested, rightly or wrongly, and for whatever reason" (133 S. Ct. at
Justice Scalia took the rare step of reading his dissent from the
bench, "signaling deep disagreement" on the Court.
GENETIC AND LAW ENFORCEMENT TECHNOLOGY USED
DNA database laws began in 1994 and continued to expand
until 2002. All felonies and some misdemeanors would result in that
DNA is entered into the State CODIS (Combined
System) database. The
DNA is collected using a buccal swab, which is
a brush inside of the cheek. The
DNA from the cheek cells in the swab
is replicated, is given a restriction enzyme digest, and is
DNA segments by their size, and different
people have unique sizes of segments of
DNA because of variations in
DNA sequence. The sequence modification allows governments, like
Maryland's, to identify the alleles, versions of some loci or gene, of
a person in the DNA. The collection of genetic markers allows for high
precision identification of a suspected criminal from the
found at crime scenes or on victims.
The genetic markers from an individual are searched against all other
felons and arrestees in the database when police are attempting to
compile evidence by the use of blood, saliva, skin, or other bodily
Maryland v. King
Maryland v. King presented competing issues regarding social ethics
and the law. The case deals with the issue of consent, because King
did not give consent to a cheek swab that led to his
DNA being entered
into the Maryland CODIS database. However, King did not find that to
be an issue until after his arrest for a rape that took place nearly a
decade earlier, predicated on the fact that his
DNA matched DNA
acquired from the original rape victim. Regardless of how the evidence
was obtained, King was considered a danger to society because of his
association with a prior violent crime.
King and his lawyers argued that even a rapist is still a rightful
citizen of society, who deserves equal protection according to the
The Fourth Amendment declares that no person shall be subject to an
unreasonable search or seizure, which may be assumed to include DNA
tests. Furthermore, after King was apprehended because his
matched with a sample collected from a rape case, King's appeal meant
DNA analysis was unlawful and could not be used as evidence.
However, after a successful appeal from Maryland, the charge was
The extent to which the case is a move toward replacing the rule
(warrants must be based on probable cause), normally required with a
general standard of reasonableness in Fourth Amendment jurisprudence,
has been debated. Instead of obtaining a warrant or tying the DNA
swabbing to an individualized suspicion, taking
DNA soon after an
arrest is justified based on reasonableness by weighing "the promotion
of legitimate governmental interests" against "the degree to which
intrudes upon an individual's privacy" (133 S.Ct. at 1970).
In later cases, the Court has continued to maintain that a warrant is
required unless a well-defined categorical exception to the warrant
requirement applies or the search is "special needs," "administrative"
or "regulatory" one (such as random drug testing of student athletes)
whose primary purpose is something other than the production of
evidence for the investigation or prosecution of a crime. King thus
remains one of only a handful of cases that stands outside this
For the state of Maryland to be able to rightfully obtain and use the
buccal sample from the defendant, King must first be arrested for a
violent or serious crime. Then, an indictment for a court order would
be placed to get a second
DNA sample to use for the rape case. If he
was not convicted, his
DNA would have been destroyed.
DNA sample offers more insight than a simple fingerprint, aiding
the police and protecting the arrestee from being wrongly convicted.
Additionally, the sample serves the purpose of determining if the
release of the arrestee poses a risk to the community, the victim, or
the arrestee. At the conclusion of this case, the Supreme Court ruled
in favor of Maryland in that there is no real difference between "the
practice of how
DNA samples are used, and fingerprints, other than the
DNA provides." The overall ruling is that it not
a violation of the Fourth Amendment in that these samples are part of
the protocol when a person is arrested for a serious or violent crime,
DNA get placed in the system and not be removed except on
The future implication of the ruling set the future precedent of
allowing policing bodies to obtain buccal
DNA samples from arrested
criminals. It can then be used to match convicts with other dangerous
crimes, giving solace to families and protecting society.
In the eyes of the defendant, Alonzo Jay King Jr., there was no
evidence to link him to any pre-existing crimes. By taking a buccal
sample without informed consent is against the law in that it is an
unwarranted analysis of his
DNA sample, which is prohibited by the
DNA testing is not analogous to fingerprinting but
an invasion of privacy that citizens have the "right to secure their
persons, houses, papers, and effects." There cannot be exceptions for
searches of parolees or a special needs exception, which does not
require a warrant, because those arrested maintain reasonable
expectations of privacy until conviction. Taking into account the
balance of securities, the privacy interests outweigh the government's
interests. The Maryland police officers did not follow due process and
violated the right to privacy as guaranteed in the Bill of Rights.
As for the plaintiff, the Maryland
DNA Collection Act serves as a
well-established, legitimate booking procedure for all individuals
indicted on charges of violence or burglary. The act and the Maryland
state CODIS database were established to keep communities safe by
improving the criminal justice system and police investigation
practices. A buccal swab is a painless, non-invasive medical
procedure and all genetic information is determined from the CODIS
regions of the genetic sample, which are commonly used in DNA
identification procedures. It is not a violation of the Fourth
Amendment because no other genetic information other than the CODIS
regions are collected. Individuals give consent for their genetic data
to be entered into the state of Maryland’s CODIS database and may
request their data to be destroyed upon exoneration or dropped
charges. The defendant did not request for his
DNA to be removed from
the system until his
DNA matched with that of another crime that had
been committed 10 years prior to the alleged assault.
There are many critics of this case in response to the decision. The
dissenting view claims that the potential benefits of finding actual
perpetrators of cold cases and the possibility of freeing those
wrongly convicted do not outweigh the critical privacy concerns. On
the other hand, those in favor of the ruling see this case as an
important weapon in fighting future crimes.
However, many Maryland citizens disagree with the ruling of this
case, as they feel it is an invasion of privacy and Fourth Amendment
DNA samples is still viewed as an infringement
greater than the costs that accompany finding true perpetrators by the
general public. The people fail to understand the justification of
DNA samples without following the proper procedure for the
DNA to be used in the case has caused some of the
public to view the course of action as a direct violation of their
Fourth Amendment right, as it is an unjust search without probable
* ^ Schwinn, Steven D, "Fourth Amendment." Preview of United States
Supreme Court Cases (2013): 215. American Bar Association.
* ^ David H. Kaye,
Maryland v. King
Maryland v. King Per Se Unreasonableness, the
Golden Rule, and the Future of
DNA Databases, 127 Harv. L. Rev. F. 39,
40, 42-43 (2013)
* ^ Adam Liptak (3 June 2013). "Justices Allow Police to Take DNA
Samples After Arrests".
The New York Times
The New York Times . Retrieved 3 June 2013.
* ^ A B Maryland Government, "Governor's Office of Crime Control
and Prevention in Maryland." History of Maryland's
DNA Database. State
of Maryland Government.
* ^ Compare Erin Murphy, License, Registration, Cheek Swab: DNA
Testing and the Divided Court, 127 Harv. L. Rev. 161 (2013), with
David H. Kaye,
Maryland v. King
Maryland v. King Per Se Unreasonableness, the Golden
Rule, and the Future of
DNA Databases, 127 Harv. L. Rev. F. 39, 40,
* ^ Little, Roy. "Supreme Court Summaries." American Bar
Association: Criminal Justice Section (2013): p.2. American Bar
Association. Web. 6 Nov. 2015.
* ^ A B C State of Maryland, Petitioner v. Alonzo Jay King, Jr. 54.
Supreme Court of the United States. Jan. 2013. American Government .
* ^ Cornell University Law School. "Fourth Amendment." LII / Legal
* ^ Sherkow, Jacob. "Maryland versus King: A Mouthful of
Contradictions". Stanford Law School. N.p., June 3, 2013.
* ^ A B Lempert, Richard. "Maryland v. King: An Unfortunate Supreme
Court Decision on the Collection of
DNA Samples". The Brookings
Institution. N.p., June 6, 2013.
* Kaye, David H. (2014). "Why So Contrived? The Fourth Amendment and
DNA Databases After Maryland v. King". Journal of Criminal Law and
Criminology. 104 (3): 535–596. SSRN 2376467 .
* Kaye, David H. (2013). "Maryland v. King: Per Se Unreasonableness,
the Golden Rule, and the Future of
DNA Databases". Harvard Law Review
Forum. 127 (1): 39–48. SSRN 2340456 .
* Kaye, David H. (2013). "A Fourth Amendment Theory for Arrestee DNA
and Other Biometric Databases". University of Pennsylvania Journal of
Constitutional Law. 15 (4): 1095–1160. SSRN 2043259 .
* Murphy, Erin (2013). "License, Registration, Cheek Swab: DNA
Testing and the Divided Court". 127 (1): 161–196.
* Roth, Andrea (2013). "
Maryland v. King
Maryland v. King and the Wonderful, Horrible
DNA Revolution in Law Enforcement" (PDF). Ohio State Journal of
Criminal Law. 11 (1): 295–309.