« BACK  |  PRINT

RS

MEMBER DIARY

Maryland vs. King

On February 26th, the Supreme Court will hear an important case involving the Fourth Amendment’s prohibition against unreasonable search and seizure. This case arises out of Maryland, but has ramifications beyond that state. In all, 28 other states and the Federal government have practices and policies that roughly approximate those at issue in the Maryland case. This case is interesting since it pits the Constitution against modern technology, a fact not lost on the current Justices. In recent terms and decisions, the Supreme Court has had to rule on whether placing a GPS tracking device on cars that moved on public highways violated the Fourth Amendment. They have grappled with the concept of expert scientific evidence and witnesses presented at trial. Animal cruelty videos broadcast on the Internet and whether violent video games have First Amendment protection, not to mention the “fleeting expletive” case that bounced around in the courts for years were all addressed. In a case out of California involving whether text messages on cell phones can be monitored and used for disciplinary action against employees led to some interesting and humorous exchanges between the Justices and lawyers at oral argument. One could get the impression that the Justices are technological dolts when it comes to these things. And not to be outdone, the Court will likely face a couple of cases this and next term as to whether genes can be patented, or whether interpretation of gene mapping can be patented.

The challenge is how a document written in the 18th Century can be applied to 21st century science. Clearly, our Founding Fathers had absolutely no inkling of GPS devices, DNA testing, cell phones or the Internet. Yet, the main principles they set out in the Bill of Rights does not know temporal boundaries. These are timeless principles that must be applied to the world in which we live today. In the GPS case last term- United States vs. Jones- the Court at times made references to a piece of required literature in high schools today- George Orwell’s “1984.” As Justice Alito noted in that case, it was hard to conceive of an similar situation that took place in the late 18th century. In that case, the Court ruled that a warrant was required for placement of the tracking device although the reasoning for that decision differed somewhat. Scalia, who wrote the majority decision, relied heavily on the common law concept of trespass and determined that once a trespass is committed, there is a general assumption of a search. Confounding that exclusive line of reasoning is 1967’s decision Katz vs. United States which determined that placement of an eavesdropping device in a public phone booth violated the Fourth Amendment if done without a warrant. This led to a second line of reasoning which Justice Alito picked up on- the expectation of privacy argument. Finally, Sotomayor wrote a third opinion in the case finding that the issue in the Jones case could be reconciled using both arguments and that one, in fact, augmented the other. The bottom line, despite the differing rationales, was a 9-0 decision requiring a warrant for a GPS tracking device.

In the current case, Alonzo King was arrested in 2009 on assault charges. Police obtained a swab of cheek cells- the main means of collecting DNA samples as anyone who has watched any crime show is well aware. The DNA collection was required under Maryland law not for evidence in the assault charges, but it was required under state law. Three months later as he awaited trial on the assault charges, results of that DNA sample came back which linked him to DNA evidence collected from a 2003 unsolved rape. In this case, the victim of that rape was unable to positively identify King as her attacker. Nevertheless, based solely on the DNA evidence, a grand jury returned an indictment against King in the 2003 rape case. His lawyers immediately moved to suppress the DNA evidence collected. The case eventually went to the Maryland Court of Appeals, their highest state court, who ruled that the DNA evidence collected was unconstitutional since there was no warrant in the first instance. In fact, after his subsequent arrest on the rape charge, a warrant WAS obtained and a second DNA sample collected which confirmed the results of the first sample taken. The state of Maryland immediately appealed to the Supreme Court, specifically John Roberts who handles emergency appeals out of the Fourth Circuit. Roberts essentially stayed the Maryland Appeals Court decision noting (1) that DNA collection was a “valuable tool for investigating unsolved crimes” and, (2) that there was a great probability the Court would take the case. In fact, they did so which brings us to the current state of affairs. Incidentally, Alonzo King was convicted of the rape charges and sentenced to life in prison.

Because of the crime for which he was convicted, there is likely very little sympathy for King at this point. Like most others, this writer would like to see all rapists locked up and behind bars. But, that is the emotional aspect of this case. The importance of it is obvious. While many may see taking a cheek swab as some inconsequential result of being arrested, others see this as a serious intrusion into one’s personal privacy- namely, their very selves, their genetic make up.

The State of Maryland, along with the 28 other states and the Federal government, have filed briefs arguing against King and the Maryland Court of Appeals. The brief for the Federal government has an interesting argument that may hold some considerable sway here. First, they note that taking a DNA sample from a cheek swab is no different nor more intrusive than fingerprinting anyone who has been arrested. In fact, people are fingerprinted when arrested for crimes considerably less serious than assault. Secondly, using the expectation of privacy argument, they state that someone arrested has a lessened expectation. Just last term, the Court used a similar line of reasoning to decide a strip search case out of New Jersey that basically said just that. However, in that case, the safety of prison guards was the primary motivating factor while in this case, enhancement of a state DNA database is the motivating factor. The Maryland Court off Appeals noted that in the King case, with the collection of DNA samples in this manner, one’s entire genetic make up is collected and stored by the state and that the DNA collected in the first instance is not to provide evidence for a conviction for the crime for which he was originally arrested. In other words, Maryland would have had grounds to arrest King and demand a DNA sample had he been connected to the 2003 rape. The ONLY thing that connected him was the DNA sample taken for an unrelated arrest.

Roberts’ reasoning for staying the Maryland Court of Appeals decision may presage the conclusion of this case. He noted, as mentioned earlier, the importance of DNA collection in solving crimes. Since, as the Federal government argues, fingerprinting someone arrested but not yet convicted is certainly constitutional, what if King’s fingerprints were found at the 2003 rape scene? If such was the case, there would be no argument now. However, the only thing linking King to that rape is the DNA evidence. Absent that evidence, there is no case since even the victim could identify King as her attacker. The circumstances of that rape are not at issue here.

Some will inevitably ask about the original charge for which he was arrested- the assault charge. In that instance, King pointed a shot gun at a group of people. Witnesses identified him as the person with the gun. King admitted he pointed the gun at the group of people and pleaded guilty and was sentenced on a reduced misdemeanor charge. In other words, there was absolutely no reason to collect his DNA sample. The only reason the DNA sample was taken from King as it is with all arrested people for certain crimes is simply to expand and enhance an existing database.

While it is true that DNA samples are collected from those accused (arrested) of serious crimes like rape and murder (remember King was arrested for assault), they are not collected for suspects of other serious crimes like burglary, robbery, or aggravated assault as part of the normal evidence-gathering procedures. There is even statistical evidence that collecting DNA samples from everyone arrested does not necessarily lead to an increase in the rate of arrests, rate of convictions, or the solving of open cases. California, for example, has a large database while those in Illinois and New York are considerably smaller yet the rate of solving crimes through DNA evidence is virtually identical between these states. Considering that nationally there are 12 million arrests every year for certain targeted crimes, obviously this massive influx of DNA samples causes delays in other areas where an investigator’s time may be better spent. Contrary to television depictions, not every city has a forensics team like those depicted on “CSI” and other programs. These random collections and analysis of everyone arrested creates a backlog in cases where rape kits often sit for weeks or months without being analyzed for DNA. Also, DNA evidence is used not only to catch criminals, but it is often used to exonerate innocent people. Such was the case of Cody Davis in Florida who was arrested and convicted for armed robbery. DNA evidence collected from a ski mask later exonerated Davis of the crime, but the fact is that while this exonerating evidence sat in the Palm Beach crime lab and untested due to a backlog of cases, an innocent man went to jail.

Furthermore, if the DNA sample had been taken from King in the current case after he pleaded guilty and was thus convicted, there likely would have been no Supreme Court case at all. No one is contesting that those convicted of certain crimes or even those convicted of non-violent crimes forfeit certain rights and expectations of privacy. In this case, King was arrested, not convicted, at the time the first sample was taken. To illustrate how odd this situation was, after his arrest for the rape based on the DNA evidence in the first sample, police then obtained a warrant for a second sample. Further, King was no angel and the question becomes why no DNA samples were taken after his arrest and conviction on at least six other occasions between 2003 and 2009.

I am all for taking rapists off the street and I have no doubt that Alonzo King is, based on his criminal record, basically a scum ball that deserves to be in jail for something. However, the whole rationale behind Maryland’s DNA sampling of those arrested is simply to enhance an existing DNA database and not based on probable cause or even suspicion, but simply because it expands the base. One’s genetic make-up cannot be altered. If the rationale is to enhance a DNA database, then why not just take a DNA sample upon being born and enter it in a database in order to solve some hypothetical future crime the newborn may commit later in life. The bottom line is that despite the specifics of this case- Alonzo King most likely did commit the 2003 rape- a person in this country is innocent until proven guilty, or until they admit their guilt. It is at that point that they forfeit certain rights and have a lessened expectation of privacy.

Some will argue that this is a case of the scales of justice being tipped too heavily in favor of the criminal. These same voices likely were leading the chorus of hypotheticals in the wake of the Miranda decision in the 1960s. Law enforcement has adapted extremely well to those demands as they likely will in this case should the Supreme Court rule in King’s favor. If I had to handicap this case and its outcome, I would expect King to prevail. Scalia likes to view individual cases through the lens of the 1700s and what would be considered a search. Certainly taking a piece of a person constitutes a search. Looking at a worse case scenario, what if the victim of this rape gave a physical description of her attacker. Would the state have the right to round up and collect DNA from everyone matching that description? Clearly in that hypothetical, it could be argued there is more probable cause to do so than in the King case. Imagine oneself placed in the unfortunate position of matching someone’s description and having to give up a DNA sample.

As stated earlier, Alonzo King is no saint and no martyr just as Ernesto Miranda was no saint or martyr. But, serious constitutional rights are at issue here, most importantly the right to be secure in one’s “effects and person” from unreasonable search and seizure. There is a constitutional guideline- probable cause and a warrant. To the state of Maryland and 28 other states, probable cause is established by virtue of being arrested (not convicted) for specified crimes. It would, to this writer, be a shame if more constitutional protection is afforded an automobile than is afforded one’s own genetic material. If the rationale behind the means is simply enlargement of an existing DNA database, then that rationale cannot survive Supreme Court scrutiny.

{Incidentally, on January 9th, the Court heard the case of Missouri vs. McNeely as to whether a warrant is required to take a blood sample to prove a case of drunk driving. Given the tone of that argument, it is obvious that a blanket approval of blood sample taking by authorities likely violates the Fourth Amendment. However, the Court was striving to find a middle ground or a hypothetical instance when it would be permissible without a warrant. If an obviously drunk driver requires a warrant to take a blood sample, then it is more likely that a not-so-obvious rapist requires a warrant to take a DNA sample.}

Get Alerts