In 1994, the State of Maryland established a DNA database to catalogue samples from convicted sex offenders. Five years later, the list of persons required to contribute to the DNA database was expanded to include all those convicted of violent crimes. Three years later, it was expanded to include all those convicted of felonies. On January 1, 2009, Maryland once again expanded the reach of DNA collection to all persons arrested (not convicted) for violent crimes.
Later in 2009, Alonzo King was arrested for assault. Pursuant to Maryland’s DNA collection statute, the State extracted DNA from his mouth, and found it matched DNA taken from the victim of a 2003 rape. Mr. King was subsequently indicted and convicted of rape, and sentenced to life without parole. On appeal, Maryland’s highest court ruled that the practice of taking DNA from those who have not been convicted, but merely been arrested for certain crimes, violated the Fourth Amendment’s proscription of unreasonable searches and seizures. The United States Supreme Court disagreed.
In a 5-4 decision, the Supreme Court found Maryland’s expanded DNA collection procedures constitutional, likening the extraction of DNA from an arrestee’s mouth to standard identification techniques like: finger-printing, comparing the arrestee to wanted posters, and looking at external tattoos of the arrestee. The Supreme Court recognized that the intrusion associated with a swab of an arrestee’s mouth is necessarily greater than a visual inspection of their person, but reasoned that the intrusion was slight compared to the state interest served.
Let’s take a step back and consider how DNA samples are collected. The inside of the mouth is rubbed with a cotton swab, also known as a buccal swab. Cheek cells adhere to the swab, which is then marked with the party’s identification and sent to a laboratory for testing. The timetable for results varies but can take up to two weeks.
Results are then registered in DNA databases, making it possible for law enforcement laboratories to electronically search and compare collected DNA profiles to crime scene evidence. The Combined DNA Index System (CODIS) links all local, state, and national databases and contains more than 5 million records.
All 50 states take cheek swabs from convicted criminals to check against federal and state databanks, with the court’s blessing. The Supreme Court issue revolved around whether that DNA collection could come before conviction and without a judge issuing a warrant. Currently, the federal government and 29 states, including Maryland, take DNA swabs upon arrest. Of these states, 13 limit DNA collection to people arrested for a felony, while the others limit it to those accused of certain felonies.
The practical impact of the decision is that Maryland’s legislators have been vindicated by crafting a crime-fighting statute that has survived the highest level of federal constitutional scrutiny. With every cold-case solved, politicians are re-writing their campaign speeches to emphasize their involvement with the passage of such a monumental law.
But where does it end? Currently, anyone arrested for certain crimes, like assault, rape, arson, etc. are subject to mandatory DNA extraction. As the brief history of Maryland’s DNA database has shown, the persons subject to such DNA extraction continues to grow. It isn’t long before a legislator, seeking to appear “tough on crime,” proposes such extraction for an even broader cross-section of the community.
Soon, “you have the right to remain silent” may pale in ubiquity to “open wide and say ‘Ah’.”