Kansas Court of Appeals Rejects Post-King Challenge to DNA Collection on Arrest

This year, the Kansas Court of Appeals upheld the state's DNA-on-arrest law against a Fourth Amendment challenge. The result is not surprising in light of the Supreme Court's opinion in Maryland v. King. Still, there are some differences between the Maryland statute and the Kansas one, making the state court's decision not even to publish its opinion a little questionable.

Excerpts from the opinion and two quick comments on them follow:

State v. Biery
No. 109,344, 318 P.3d 1020 (Table)
2014 WL 802100 (Kan. Ct. App. Feb. 28, 2014)

PER CURIAM.

In the early morning hours of May 12, 2012, Hutchinson police observed a white male out walking. The officers approached, without lights or sirens activated or weapons drawn, and asked for identification. Police learned the man was [Willie] Biery and there was an outstanding arrest warrant for his failure to appear for a probation violation hearing. Biery was arrested.
At the jail, Biery emptied his pockets and revealed a small plastic baggie containing methamphetamine. Biery was charged with possession of methamphetamine and booked into the jail for both violations. Because possession of methamphetamine is a felony and his DNA was not on file, Biery was asked to provide a DNA sample, via buccal mouth swab ... . Biery refused. ...

Biery was [found guilty of] refusing to give a DNA sample , in violation of K.S.A.2011 Supp. 21–2511(e)(2). ...

On appeal, Biery's sole issue is whether the statutory scheme for the collection, handling, and storage of DNA samples ... is a violation of the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights. ...
The recent United States Supreme Court decision in [Maryland v.] King, 133 S.Ct. 1958 [2013)], addressed this issue ... As part of their standard procedure for a person arrested and charged with felony offenses, Maryland police took a DNA sample by buccal swab ...

In determining whether the warrantless search was reasonable, the United States Supreme Court held the DNA collection statute served a legitimate government interest by providing a safe and accurate way to process and identify the persons taken into custody, reducing risk to police and those in police custody, ensuring criminals are available to be tried, assessing the danger an individual might pose to the public before setting bond, and reducing the possibility of innocent persons being wrongfully held. ... The Court also noted DNA collection is a search incident to a lawful arrest which, even lacking individual suspicion, is virtually unchallenged in American jurisprudence. ...

Hmm, the Supreme Court did not uphold the DNA collection in Maryland because it fell within the "search incident to arrest" exception to the warrant requirement. That exception only allows to police to search a person and his immediate surroundings to prevent the individual taken into custody from using a weapon or destroying evidence. King applied a balancing test to recognize what is effectually a new exception.

Because the search was minimally intrusive, served a legitimate government interest, was reasonable due to an arrestee's reduced expectation of privacy, and protected against unwarranted disclosures, the Court affirmed the constitutionality of the Maryland statute. ...

... Biery claims the Maryland statute at issue in King is significantly different than the one in place in Kansas ... . Thus, ... Biery argues the Maryland statutory scheme was deemed constitutional because it provided sufficient safeguards against the accidental disclosure or misuse of such samples. Biery claims the Kansas statute lacks such safeguards and, therefore, fails to pass constitutional muster. ...

... Because ... the Kansas Bureau of Investigation (KBI) [must] comply with national standards regarding the collection and maintenance of DNA records, the State argues K.S.A.2011 Supp. 21–2511 provides sufficient statutory safeguards to be considered constitutional under King. ...

The State is correct. ... In regards to the dissemination of DNA information, Kansas law only allows release of DNA records and samples to “authorized criminal justice agencies.” ... Finally, the overall process is governed by the KBI, which “shall promulgate rules and regulations” for the collection and maintenance of samples; expungement and destruction of samples; and procedures in compliance with national standards for DNA records. ...

The Kansas statute differs in a couple of ways that the court does not mention. It applies to a broader class of crimes than the Maryland law. It does not defer the DNA profiling until after an arraignment. It does not require the destruction of samples and profiles if there is no conviction. Apparently, the Kansas court did not consider these differences significant, and it proceeds to present the weaker Kansas provision for expungement as an argument for the reasonableness of the Kansas law.

We pause to note the charges leading to Biery's felony arrest have since been dismissed following the suppression of the evidence against him. ... With the dismissal of his case, K.S.A.2011 Supp. 21–2511(j)(1)(B) provides ... for ... a procedure which allows the defendant to petition to expunge and destroy the DNA samples and profile record in the event of a dismissal of charges, expungement or acquittal at trial.

Had Biery provided a sample, he could now proceed to ask the KBI to expunge and destroy his DNA sample. ...

Biery was lawfully under arrest for a felony at the time the buccal swab was requested. K.S.A.2011 Supp. 21–2511(e) requires that any person subject to a valid felony arrest to submit a buccal swab. The statute does not violate the Fourth Amendment to the United States Constitution or § 15 of the Kansas Constitution Bill of Rights and is constitutional. ...