Maryland's Highest Court's Opinion on Arrestee DNA Is an Outlier

Maryland's highest court is its Court of Appeals. Two days ago, in King v. State [1], this court became the first supreme court of any state to hold that taking a DNA sample from an arrestee is unconstitutional. But you would not know this from the court's opinion.

Instead, the Maryland court purports to follow "the Minnesota Supreme Court in C.T.L." Considering that the Minnesota Supreme Court did not decide C.T.L. and that it has yet to consider the routine practice of taking DNA prior to arrest [2], this is no small feat.

The majority opinion in King, penned by Judge Glenn T. Harrell, Jr., contains additional gaffes. It refers to Judge Marjorie Rendell of the U.S. Court of Appeals for the Third Circuit as a man, and it asserts that "Fourth Amendment analyses" are "more stringent" than "a First Amendment 'rational basis' review" -- whatever that may mean.

Of course, these infelicities do not mean that the opinion is wrong -- although it is long on description and short on analysis. The balancing of state and individual interests that is pivotal to the opinion is less than lucid. We can get a sense of the court's approach from its discussion of the individual interests that the opinion seeks to protect. To begin with, the Maryland court gives more weight than other courts do to the interest in being free from an unwanted but painless and relatively minor intrusion into one's body. Judge Harrell writes that DNA

is collected by swabbing the interior of a cheek (or blood draw or otherwise obtained biological material). While the physical intrusion of a buccal swab is deemed minimal, it remains distinct from a fingerprint. We must consider that “[t]he importance of informed, detached and deliberate determinations of the issue whether or not to invade another's body in search of evidence of guilt is indisputable and great.” Schmerber, 384 U.S. at 770.

The puzzle here is that, if the physical intrusion is indeed minimal, why is it of “great importance” to have a “detached . . . determination” in the form of a judicial warrant? It cannot be the peculiar notion that laboratory analysis to produce an identifying profile is a separate search requiring a warrant. If that were so, the laboratory analysis of “abandoned” DNA of a suspect also would require a warrant. This might be a reasonable position—but the King court does not retreat from State v. Williamson, 993 A.2d 626 (Md. 2010). There, the police recovered and then analyzed DNA from a drinking cup given to a suspect at a police station, and the Maryland Court Appeals flatly rejected the separate-search argument. Furthermore, if the “physical invasion” aspect of the DNA collection were of such great importance, the state could avoid the impact of King by changing the method for collecting the DNA. Instead of a buccal swab, the arrestee could be asked to place his fingers on a sticky pad to which some cells would adhere.

The interest that actually seems to be driving the opinion is not that the arrestee is compelled open his mouth so that some cells can be scraped from the inside of his cheek. It is, in the King court's words, the possibility that “the vast genetic treasure map that remains in the DNA sample retained by the State” will be read or released in violation of state law. But the opinion utterly fails to address whether the state’s possession of that unread map (the physical sample kept under lock and key) unreasonably interferes with a defined privacy interest. And even if it does, could not Maryland acquire the identification profiles -- data that are nothing like "[a] person's entire genetic makeup and history" -- and then destroy the physical sample to satisfy the court's oddly applied balancing test?

Despite its problems, both superficial and fundamental, King is not devoid of all redeeming value. For example, the court correctly distinguishes between the use of a biometric identifier for identification and its use of it for intelligence purposes. But the opinion sheds no new light on the constitutional issue and casts some grotesque shadows. Readers seeking a deeper analysis will have to look elsewhere [3].

References

1. King v. State, No. 68, 2012 WL 1392636 (Md. Apr. 24, 2012)
2. In re Welfare of C.T.L., 722 N.W.2d 484 (Minn. Ct. App. 2006)
3. David H. Kaye, A Fourth Amendment Theory for Arrestee DNA and Other Biometric Databases, University of Pennsylvania Journal of Constitutional Law, Vol. 15 (in press)

Postscript

Alan Lazerow pointed out that the court's opinion does not have the superficial flaws that caused my jaw to drop and pen to move. Thankfully, the opinion as now posted on Maryland's website and Westlaw have these blemishes removed.

Cross-posted to the Double Helix Law Blog.