- The Foundry: Conservative Policy News Blog from The Heritage Foundation - http://blog.heritage.org -
Maryland Court of Appeals to the Left of Liberal 9th Circuit
Posted By Forrest Hunt On May 11, 2012 @ 1:15 pm In Legal | Comments Disabled
In a recent 5-2 decision , the Maryland Court of Appeals (Maryland’s highest court) ruled that the state’s 2008 DNA Collection Act was unconstitutional because collecting DNA after an arrest, rather than post-conviction, violates the defendant’s constitutional rights. This decision is troublesome for a number of reasons.
The use of forensic DNA has revolutionized the investigation of crimes. Not only has it been used to solve past “cold cases,” but it has also exonerated suspects under investigation, and those wrongfully convicted of committing a crime.
Using the FBI’s Combined DNA Index System (CODIS), more than 10.6 million DNA samples  have been collected by federal, state, and local participating forensic laboratories; these samples have, in turn, aided over 169,000 investigations nationwide. 
Through their respective legislatures, each state determines what qualifying offenses must be committed by the offender in order to collect a DNA sample. Broadly speaking, there are two categories: felons already convicted, or arrestees charged with an enumerated felony.
As to the first category, every single state collects DNA samples from convicted felons. Consequently, several state and federal courts have upheld the constitutionality of state DNA collection laws post-conviction:
More recently, there is a growing trend among the states for the second category (post-arrest DNA collection). To date, 26 U.S. states  have passed laws authorizing the collection of DNA from arrestees who have been charged with a violent crime to include murder, rape, robbery, or aggravated assault. Twelve other states allow the DNA sampling of anyone charged with a felony.  These state laws have also been challenged in court, and subsequently ruled constitutional:
All of this is to say just how far outside the mainstream the Maryland Court of Appeals was in its outlandish decision in Alonzo Jay King, Jr. v. State.
The facts of the case are straightforward. In April 2009, King was arrested in Wicomico County on first- and second-degree assault charges. This was not his first arrest. Dating back to 2001, King had numerous run-ins with the law  for multiple assaults, possession of marijuana with intent to distribute, paraphernalia, concealment of a deadly weapon, burglary, reckless endangerment, disorderly conduct, and resisting arrest.
While awaiting trial for the assault charges, King’s sample was entered into the statewide database. Sure enough, it matched the DNA recovered from an unsolved 2003 home invasion, armed robbery, and forcible rape of a 53-year old woman in Salisbury, Maryland. Based on this DNA “hit,” he was charged with first-degree rape. Upon his conviction, King was sentenced to life in prison.
The Maryland Court of Appeals overturned King’s rape conviction because “his DNA was collected unconstitutionally, and the evidence presented at trial should have been suppressed as ‘fruit of the poisonous tree.’” 
The Court further reasoned that since 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, officers had no legitimate need for a DNA sample in order to be confident who they arrested. Therefore, using the totality of circumstances balancing test, the Court concluded:
“[King] 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.” 
Within the majority opinion, though, the Court admits to having some trepidation as to ruling the state DNA collection law, under any and all circumstances, unconstitutional. For example, if an arrestee had altered his fingerprints or facial features, the State would need to obtain a DNA sample to identify him accurately. 
However, the Court maintains that the law was unconstitutional “as-applied” to this case because King’s identity was not the evidence that served as probable cause for his grand jury rape indictment. The majority does not equate the biological match between King’s 2009 mouth swab and the evidence collected from his 2003 rape victim, to other identifying information such as his name or address.
Thus, any DNA sample taken to simply identify an arrestee is constitutional. But if that sample is then compared with another in the state database, it has been unconstitutionally collected for “investigative purposes,” and is not admissible in court. 
Maryland Attorney General Douglas F. Gansler should ask the United States Supreme Court to hear this case, and the Supreme Court should take the case to resolve the disagreement in interpretation offered by the Maryland Court of Appeals and the other courts—including the Ninth Circuit—that have heard this issue. In so doing, the Supreme Court should clarify that the Fourth Amendment does not prohibit a state from requiring a violent felon from saying “ahh,” and the use of that information to solve crimes.
Forrest Hunt is a member of the Young Leaders Program at the Heritage Foundation. For more information on interning at Heritage, please visit: http://www.heritage.org/about/internships-young-leaders/the-heritage-foundation-internship-program 
  For more NDIS statistics, see the FBI’s website, available at http://www.fbi.gov/about-us/lab/codis/ndis-statistics  (last viewed on May 8, 2012).
  For information on the states’ DNA Database laws, see Nathan James’s CRS report entitled, “DNA Testing in Criminal Justice: Background, Current Law, Grants, and Issues” (Dec. 7, 2011) available at: http://www.fas.org/sgp/crs/misc/R41800.pdf .
  See page 2, King v. State majority opinion.
  See page 58, King v. State majority opinion.
  See page 58, King v. State majority opinion.
Article printed from The Foundry: Conservative Policy News Blog from The Heritage Foundation: http://blog.heritage.org
URL to article: http://blog.heritage.org/2012/05/11/maryland-court-of-appeals-to-the-left-of-liberal-9th-circuit/
URLs in this post:
 decision: http://mdcourts.gov/opinions/coa/2012/68a11.pdf
 10.6 million DNA samples: http://www.fbi.gov/about-us/lab/codis/ndis-statistics
 : http://blog.heritage.org/2012/05/11/maryland-court-of-appeals-to-the-left-of-liberal-9th-circuit/#_ftn1
 held: http://www.denverda.org/DNA_Documents/Raines.pdf
 ruled: http://scholar.google.com/scholar_case?case=1231145567205604078&hl=en&as_sdt=2&as_vis=1&oi=scholarr
 held: http://caselaw.findlaw.com/nj-supreme-court/1250339.html
 ruled: http://caselaw.findlaw.com/or-court-of-appeals/1181966.html
 26 U.S. states: http://dnasaves.org/states.php
 : http://blog.heritage.org/2012/05/11/maryland-court-of-appeals-to-the-left-of-liberal-9th-circuit/#_ftn2
 decided: http://www.courts.state.va.us/opinions/opnscvwp/1062051.pdf
 ruled: http://caselaw.findlaw.com/mn-supreme-court/1592320.html
 held: http://www.ca9.uscourts.gov/datastore/opinions/2012/02/23/10-15152.pdf
 run-ins with the law: http://casesearch.courts.state.md.us/inquiry/inquiry-results.jsp?action=Search&d-16544-s=7&filingDate=&filingStart=&courtSystem=B&d-16544-o=2&filingEnd=&firstName=ALONZO&company=N&lastName=KING&site=00&d-16544-p=1&partyType=&countyName=&middleName=JAY
 : http://blog.heritage.org/2012/05/11/maryland-court-of-appeals-to-the-left-of-liberal-9th-circuit/#_ftn3
 : http://blog.heritage.org/2012/05/11/maryland-court-of-appeals-to-the-left-of-liberal-9th-circuit/#_ftn4
 : http://blog.heritage.org/2012/05/11/maryland-court-of-appeals-to-the-left-of-liberal-9th-circuit/#_ftn5
 : http://blog.heritage.org/2012/05/11/maryland-court-of-appeals-to-the-left-of-liberal-9th-circuit/#_ftn6
 http://www.heritage.org/about/internships-young-leaders/the-heritage-foundation-internship-program: http://www.heritage.org/about/internships-young-leaders/the-heritage-foundation-internship-program
 : http://blog.heritage.org/2012/05/11/maryland-court-of-appeals-to-the-left-of-liberal-9th-circuit/#_ftnref1
 : http://blog.heritage.org/2012/05/11/maryland-court-of-appeals-to-the-left-of-liberal-9th-circuit/#_ftnref2
 http://www.fas.org/sgp/crs/misc/R41800.pdf: http://www.fas.org/sgp/crs/misc/R41800.pdf
 : http://blog.heritage.org/2012/05/11/maryland-court-of-appeals-to-the-left-of-liberal-9th-circuit/#_ftnref3
 : http://blog.heritage.org/2012/05/11/maryland-court-of-appeals-to-the-left-of-liberal-9th-circuit/#_ftnref4
 : http://blog.heritage.org/2012/05/11/maryland-court-of-appeals-to-the-left-of-liberal-9th-circuit/#_ftnref5
 : http://blog.heritage.org/2012/05/11/maryland-court-of-appeals-to-the-left-of-liberal-9th-circuit/#_ftnref6
Copyright © 2011 The Heritage Foundation. All rights reserved.