Maryland High Court: (Usually) No Warrantless DNA Seizures from Arrestees

From today’s King v. State (Md. Ct. App. Apr. 24, 2012) (some paragraph breaks added):

We consider here facial and as-applied constitutional challenges to that portion of the Maryland DNA Collection Act (the “Act”) that purports to authorize State and local law enforcement authorities to collect DNA FN1 samples from individuals who are arrested for a crime of violence,FN2 an attempted crime of violence, a burglary, or an attempted burglary. Appellant, Alonzo Jay King Jr., was arrested in 2009 on first- and second-degree assault charges. Pursuant to § 2–504(3) of the Act, King’s DNA was collected, analyzed, and entered into Maryland’s DNA database. King was convicted ultimately on the second-degree assault charge but, pending his trial on that charge, his DNA profile generated a match to a DNA sample collected from a sexual assault forensic examination conducted on the victim of an unsolved 2003 rape. This “hit” provided the sole probable cause for a subsequent grand jury indictment of King for the rape. A later-obtained search warrant ordered collection from King of an additional reference DNA sample, which, after processing and analysis, matched also the DNA profile from the 2003 rape. King was convicted of first-degree rape and sentenced to life in prison.

Although previously we upheld the constitutionality of the Act, as applied to convicted felons, in State v. Raines, 383 Md. 19 (2004), the present case presents an extension of the statute, not present in Raines. Thus, we evaluate here rights given to, and withdrawn from, citizens who have been arrested, including the right to be free from unreasonable searches and seizures. Under the totality of the circumstances balancing test, see Knights v. United States, 534 U.S. 112 (2001), we conclude, on the facts of this case, that King, who was arrested, but not convicted, at the time of his first compelled DNA collection, generally has a sufficiently weighty and reasonable expectation of privacy against warrantless, suspicionless searches that is not outweighed by the State’s purported interest in assuring proper identification of him as to the crimes for which he was charged at the time.

The State (through local law enforcement), prior to obtaining a DNA sample from King following his arrest on the assault charges, identified King accurately and confidently through photographs and fingerprints. It had no legitimate need for a DNA sample in order to be confident who it arrested or to convict him on the first-or second-degree assault charges. Therefore, there was no probable cause or individualized suspicion supporting obtention of the DNA sample collection for those charges.

We conclude that the portions of the DNA Act authorizing collection of a DNA sample from a mere arrestee is unconstitutional as applied to King. Although we have some trepidation as to the facial constitutionality of the DNA Act, as to arrestees generally, we cannot exclude the possibility that there may be, in some circumstances, a need for the State to obtain a DNA sample to identify an arrestee accurately.