King v. State

ap- order had his client’s that the consent negotiated court cases. more than that either those proval severe —was sanction, as severe as the disbar- though, ought be Garcia, North did not find that Judge ment ordered fraud perpetrated a crime or an actual Respondent committed Moreover, Respondent’s we do not overlook the court. upon his otherwise unblemished disci- lawyer, fine as a reputation record, by Judge of remorse found and the “modicum” plinary North. above, us to conclude that together,

All of the taken leads rule is an Respondent’s sanction for violations appropriate suspension. indefinite PAY RESPONDENT SHALL

IT IS SO ORDERED. TAXED BY THE CLERK OF THIS ALL COSTS AS TRANSCRIPTS, COURT, ALL INCLUDING COSTS OF 16-761(b), MARYLAND FOR TO RULE PURSUANT IN ENTERED FAVOR OF SUM JUDGMENT IS WHICH COMMISSION AGAINST THE ATTORNEY GRIEVANCE MCGLADE, HENRY D. JR.

42 A.3d 549 Jay KING, Alonzo Jr. Maryland.

STATE of 68, Sept. Term, 2011. No. Maryland. Appeals of

Court of April 2012. May

Reconsideration Denied (Paul Davis, Assistant Public Defender B. Celia Anderson DeWolfe, Defender, Baltimore, MD), brief, Ap- on for Public pellant. Jr., Gansler, Atty. F. Taylor, (Douglas

Robert Asst. Gen. Baltimore, MD), brief, Atty. Maryland, Appel- Gen. lee. Levick, Mikkilineni, Taylor, A.

Sandra K. Tara David Public Columbia, Washington, Defender Service for the District DC, Rocah, Foundation, Baltimore, Maryland David ACLU of MD, Defender Service for for Amici Curiae brief Public and American Civil Liberties Union of District of Columbia Jr., Maryland King, urging Alonzo J. Support Appellant, reversal. BELL, C.J., HARRELL, GREENE,

Argued before WILNER, (Retired, ADKINS, BARBERA, M. ALAN CATHELL, (Retired, and DALE R. Specially Assigned), Assigned), JJ. Specially

555 HARRELL, J. chal- as-applied constitutional facial and here

We consider Act DNA Collection Maryland of the portion that lenges local law “Act”) and (the to authorize State purports from individ- samples to collect DNA1 authorities enforcement violence,2 attempted an for a crime are arrested uals who burglary. attempted violence, burglary, or crime of Art., 2-§ Safety (2003, Pub. Repl.Vol.), 2011 Code Maryland Jr., in 2009 arrested 504(3). was Jay King, Alonzo Appellant, 2-§to Pursuant charges. second-degree assault on first- and collected, and analyzed, 504(3) Act, DNA was King’s of the convicted King was DNA database. Maryland’s into entered but, charge pending second-degree assault ultimately on the a match profile generated his DNA charge, on that his trial exami- from a sexual assault forensic collected a DNA This rape. of an unsolved 2003 on the victim nation conducted subsequent grand for a probable sole cause provided “hit” search A later-obtained King rape. for the jury indictment of an additional refer- King from ordered collection warrant which, analysis, processing after sample, ence DNA rape. King from the 2003 profile the DNA matched also in prison. to life first-degree rape and sentenced convicted of constitutionality of the upheld we Although previously Raines, felons, Md. v. 383 Act, to convicted State applied (2004), an extension present presents case 857 A.2d Thus, statute, we evaluate here present Raines. of the from, to, who have been and withdrawn citizens rights given arrested, free from unreasonable including right to be (2003, Maryland deoxyribonucleic Code means acid. 1. DNA Art., genetic Safety 2-501(g). § carrier of Repl.Vol.), DNA is the Pub. each comprises and is individual to chromosomes information comprehensive of the person, identical twins. For a review aside from State, DNA, 342 Md. 673 A.2d see Armstead v. science behind (1996). § any crime in 14-101 violence” means enumerated "Crime of Article, Meaningfully including first-degree assault. Criminal Law case, second-degree an enumerated crime of present assault is not Art., 2-501(e). (2003, § Repl.Vol.), Safety Pub. violence. Md.Code totality of the circum searches seizures. Under see United test, Knights, States balancing stances U.S. 112, 122 587, 151 (2001), conclude, S.Ct. L.Ed.2d 497 we on the case, arrested, facts this King, that who was but not convicted, collection, at the time of his first compelled DNA has a generally sufficiently weighty expecta and reasonable warrantless, privacy against suspicionless tion of searches that outweighed by purported assuring the State’s him proper identification of as to the crimes for which he was at the time. The charged (through State local law enforce ment), prior obtaining sample to a DNA from King following charges, King accurately his arrest on the assault identified confidently and It through photographs fingerprints. had legitimate sample no need for a DNA in order to confident be who it arrested or to convict him on the second-degree first-or Therefore, charges. probable assault there was no cause or suspicion supporting individualized obtention the DNA sam ple charges. por collection those We conclude that the tions of the DNA Act collection of a authorizing sample DNA from a mere arrestee is unconstitutional as to applied King. Although trepidation we have some as to the facial constitu Act, tionality of the DNA as to arrestees cannot generally, we be, exclude the there possibility may some circum stances, a need for sample the State obtain a DNA an arrestee identify accurately.

I. Background Factual and Procedural began The tale of this case on 10 when April appellant County, Maryland, was arrested in on first- and Wicomico second-degree charges charge assault unrelated to the rape underlying prosecution present case.3 Prior to the disposition charges, King charged of the assault because violence, with a the Act crime of authorized collection a Alford, King plea guilty entered and was found in the Circuit Court County September for Wicomico on 16 2009 of one misdemeanor count second-degree stemming April assault from his 10 2009 arrest. The first-degree charges prosequi. were He assault entered nolle was sen- four-years’ imprisonment, year suspended. tenced to with all but one sample. County DNA Personnel at the Wicomico Central to collect a DNA Booking facility sample4 used buccal swab King day sample from on the of his arrest.5 The was received processed by Maryland State Police Forensic Sciences analyzed by private laboratory. Division and later vendor July uploaded the DNA record6 was to the On Maryland Barry DNA Detective Tucker of the database. Salisbury Department Police received notice from the State Police, 4 August King’s that there had been a “hit” on in an case. profile rape unsolved King’s profile

The DNA database “hit” identified as a match a profile developed from a DNA collected in a rape case, 2003 unsolved Salisbury, Maryland. case on 21 man September an unidentified broke into the W., man, 53-year-old home Yonette woman. The wear- face, head, a ing scarf over his a hat his pulled over and armed bedroom, with a hand gun, entered Yonette W.’s and ordered Act, sample, 4. DNA under the means: (1) body sample by provided fluid or tissue that is: an individual felony § § who is convicted of a or a violation of 6-205 or 6-206 of Article; (2) provided by the Criminal Law an individual who is (i) charged attempt with: a crime of violence or an to commit a violence; (ii) burglary attempt burglary; crime of or or an to commit (3) system testing submitted to the statewide DNA data base for part investigation. of a criminal (2003, Art., 2-501(i). Repl.Vol.), Safety §

Md.Code Pub. requires up-and- 5. A buccal swab DNA collection the collector to swab down and rotate sterile cotton swab on the interior of the cheek in the mouth, subject’s enough pressure process with to remove cells. This repeated separate on the other cheek with a cotton swab. Forensic Sci. Div., Police, Submitting Physical Md. State Guidelines Evidence for (2010), http://icac.mdsp.org/downloads/FSDSubmission available at Guide.pdf. record, Act, 6. under means “DNA information stored system’’ CODIS or the statewide DNA data base and “includes the commonly (2003, profile.” information referred to as a DNA Md.Code Art., 2-501(h). Repl.Vol.), Safety § Pub. CODIS means “the Investigation’s System” Federal Bureau of “Combined DNA Index federal, storage exchange allows the of DNA records submitted state, (2003, and local forensic DNA laboratories.” Md.Code Art., 2-501(c). Repl.Vol.), Safety § Pub. head, to her he holding gun him. to look at While her not he left with Vonette W.’s rape, After the W. raped Vonette help. immediately daughter her W. called purse. Vonette trans- for the victim to be arranged officers Salisbury Police Center, un- where she Medical Regional to Peninsula ported was forensic examination. Semen a sexual assault derwent was processed swab. The swab vaginal collected from a DNA database. Maryland to the profile uploaded the DNA time. Vonette W. was unable resulted at that No matches say than to that he attacked her other the man who identify old, five-foot- African-American, years 20 and 25 between Police tall, physique. a light-to-medium and with six inches home and conducted around the victim’s the area searched interviews, identify the attacker. but were unable August the 4 data- presented Tucker

Detective which, on 18 County grand jury “hit” to a Wicomico base for ten against King an indictment returned October against crimes committed Vonette from the charges arising “hit” was W., The DNA database first-degree rape.7 including the indictment. supporting cause probable evidence of only a search Detective Tucker obtained November On 18 King. buccal swab from and collected a second warrant from also the collected swab matched second buccal sexual assault forensic examina- during the 2003 Vonette W. tion. an County for Wicomico filed in the Circuit Court

King evidence request suppress motion that included omnibus seizure.8 On Febru- illegal search and through obtained first-degree burglary, charges third- complete included: 7. The list first-degree rape, first-degree rape, attempted second- burglary, degree robbery, second-degree robbery, attempted rape, armed degree rape, crime, carrying handgun. handgun a use in a violent routinely boilerplate filed omnibus motions This Court has criticized 8. unsupported containing as defendants in criminal cases on behalf of State, 97, 3,n. 909 A.2d allegations.” v. 395 Md. 103 See Jones "bald 646, 660-61, State, 650, (2006); A.2d 378 Md. 837 n. Denicolis v. 3 944, (2003). vaguely requested King’s defense motion omnibus 953-54 illegal ... a of an suppression seized in this case result "[e]vidence 2010, ary the Circuit Court a hearing held on the motion. The thrust of King’s argument was that the DNA Act could not survive scrutiny under the Fourth Amendment and therefore King’s argued arrest invalid.9 He also that the State did not collect King’s first DNA sample accordance with the procedures and, specified by therefore, the DNA Act that the indictment for the charges arising from the 2003 rape was invalid. The hearing judge solicited memoranda of law on the illegal search-and-seizure issue hearing.10 raised at the 2009,

On 26 February hearing judge issued memoran dum opinion denying King’s motion to suppress. The memo opinion randum upheld constitutionality of Maryland DNA Collection Act’s authorization to collect DNA from arres tees, Raines, citing to this holding Court’s State v. 383 Md. (2004), 857 A.2d 19 and concluded that the King arrest of the 2009 charges assault and seizure of his DNA were pre lawful; therefore, sumed the defense bore the burden to prove that the warrant for the second was invalid. The judge State, noted the analysis Fitzgerald Md.App. 601, 638, (2003) Delaware, 837 A.2d Franks v. (citing 154, 160, 2674, 2678, U.S. 98 S.Ct. 57 L.Ed.2d (1978)), (2004), 384 Md. 864 A.2d 1006 which lead to aff'd a conclusion that when defendant challenges a warrant corners,” outside its “four the burden shifts the defen demonstrate, dant to by preponderance evidence, the State’s supporting allegations factual to obtain the warrant are tainted by “deliberate falsehood or disregard with reckless for the truth.” King allege Because did not or present evidence of falsehood disregard truth, or reckless for the however, search hearings, King and seizure.” At both motions articu- lated a Fourth illegal Amendment violation as the critical search and requested suppression seizure and specifically sample. of his DNA

Therefore, preserved properly. the issue before us was force, King argued alternatively, but without much that DNA was not 9. actually April collected from him on 10 after his arrest. memorandum; King submitted a the State did not. not his under judge concluded had met burden hearing King Franks. over a judge presided

On 26 March the same second to in to allow to King’s suppress King motion order hearing or evidence that the warrant was based on falsehood present Groves, King the truth. Michelle disregard reckless for called Police Maryland of the Forensics Division custodian State Lab, attempt as a to Crime witness. an show the State predicate requirements all for collection prove could not sample Maryland Act a DNA under DNA Collection 11) (i.e., person completed by approved collection must be and therefore the warrant based on that sam were observed invalid, questioned handling Groves about ple King was sample. first DNA could not custody Groves training or of the provide any qualifications records not person King’s who collected first could provide King given required affirmative evidence that expungement provisions.12 notice about Act’s The State any not countered that had adduced evidence error Kfing hearing in procedures. the DNA collection irregularity King concluded that failed to meet his burden under judge to Franks again suppress. and denied motion charges to Ultimately, King plead guilty arising W., on an agreed from the 2003 of Vonette statement of rape facts, his right appeal in order the constitutional preserve raised. was convicted and to life King issues he sentenced 12 October prison, possibility parole. without the On notice of Court timely appeal Special filed King initiative, Appeals, but we issued writ of certiorari on our State, (2011), King 422 Md. 30 A.3d 193 before the appellate appeal. Appel- court could decide the intermediate lant questions two our consideration: poses Act, procedures, are 11. Collection under the described Md.Code Art., (2003, (c). 2-504(b), Repl.Vol.), Safety § Pub. Act, Expungement provisions, under the are described Md.Code Art., (2003, § Repl.Vol.), Safety Pub. 2-511. by denying Appellant’s

1. Did the trial court err motion to suppress through DNA evidence obtained a warrantless any suspicion search conducted without individualized of wrongdoing?

2. Did the court below shift the burden of improperly to that a proof to the defense demonstrate search seizure made is suspicion without individualized unreasonable? 2-504(3) § Maryland We hold that Collection of the DNA Act, arrested, DNA from persons which allows collection but convicted, yet for burglary, crimes of violence and is unconstitutional, totality under the Amendment of Fourth the test, balancing applied circumstances as to the relevant facts of this of is King’s expectation greater case because than purported using the State’s King’s DNA to him identify purposes 10 2009 April his arrest that, assault charges. Concluding circumstances, King’s his unconstitutionally, was collected and the evidence pre- sented at trial should have suppressed been as “fruit of the poisonous tree,” we do not King’s reach second question it becomes moot. Accordingly, we reverse the judgment Circuit County Court for Wicomico and remand the case to trial, that court for a new expressed consistent with the views in this opinion.

II. Standard of Review Reviewing trial disposition court’s of motion evidence, suppress we view presented the evidence at the hearing, along any with reasonable inferences drawable there from, in light most which, the prevailing favorable to party, situation, in the present State, State. Bailey v. 412 (2010) 349, 363, 72, Md. State, 987 A.2d (citing 80 Crosby v. 408 490, 504, 894, (2009); Md. State, 970 A.2d Longshore 902 v. 486, 498, (2007)). Md. 924 A.2d reviewing court court, defers to the fact-finding hearing unless the findings however, clearly. are erroneous apply, Id. We a non- deferential standard making review when the ultimate legal determination toas whether the evidence was properly seized State, under the Fourth Amendment. Williamson 413 Md. (2010) (citing Bailey, Md. A.2d 504-05, 80; 970 A.2d at Crosby, 408 Md. 987 A.2d at 902).

III. Discussion protects the Fourth Amendment argues that Appellant arrestees, assumption of cloaked with the mere who are warrantless, unreasonable, from until proven guilty, innocence mate- genetic seizures and searches their suspicionless Act. Maryland King pursuant made Collection rial DNA Collection Act unconsti- Maryland maintains that the Amendment, and under Fourth also facially tutional facts his case. The applied statute is invalid as inter- overriding governmental is an counters there State profiles that DNA accurately, arrestees identifying est Maryland under the DNA Collection from arrestees developed (under an expan- for only purposes Act are used identification “identification”), that and arres- sive view what constitutes in their privacy identity. have no expectation tees A. Fourth Amendment The Amendment to the United States Con The Fourth provides, stitution persons, to in their be secure right people effects,

houses, against and searches unreasonable papers, violated, seizures, and no shall and shall not be Warrants cause, or issue, supported by Oath affir- upon probable but searched, mation, describing place the to be particularly and persons things to be seized. Maryland through applicable The Fourth Amendment is 643, Ohio, v. 367 U.S. Mapp Amendment. See Fourteenth 1081, (1961); 655, 1684, 1691, 1090 Owens 6 L.Ed.2d 81 S.Ct. (1991). 622, 59, State, 616, 589 A.2d 61 We 322 Md. v. under the reasonable challenges Fourth Amendment evaluate concurring Harlan in his by test articulated Justice ness States, 361, 347, U.S. 88 S.Ct. in Katz v. United 389 opinion (1967), by 507, 516, 19 576, adopted a standard L.Ed.2d 587-88 949, State, 47, 51-52, v. 279 367 A.2d Md. this Court Venner 563 (1977). requires 952 The Katz reasonableness test first that (subjective) person expectation have “actual of privacy and, second, that expectation pre- be one society ” pared recognize 361, U.S. at ‘reasonable.’ 389 88 S.Ct. 516, (Harlan, J., at concurring). 19 L.Ed.2d at 587-88 A upheld seizure or search will even if there is a be reasonable expectation privacy government “special when the has a Wisconsin, 868, 875, need.” See 483 U.S. 107 S.Ct. Griffin (1987) 3164, 3169, 709, 97 718 (upholding L.Ed.2d a warrant- less of a probationer government search because the had a “special for need” the “exercise of supervision assure observed”); restrictions are in fact Skinner v. Labor Ry. Ass’n, 602, 633, 1402, 1422, Execs. 489 U.S. 109 S.Ct. 639, (1989) L.Ed.2d (upholding suspicion- warrantless and less drug alcohol test railway employees). The State does little more than special mention the needs exception case, present reason, for good its because narrow confines do not embrace the at bar. case

The context for evaluating the Fourth Amendment challenges where a expectation competes reasonable with government interests was set Supreme forth Court in Knights, United States v. U.S. S.Ct. (2001). 151 L.Ed.2d 497 Knights, Supreme Court upheld a warrantless search of a probationer’s apartment, using the “totality approach the circumstances” set forth in Robinette, 33, 39, Ohio v. 417, 421, 519 U.S. 117 S.Ct. (1996). L.Ed.2d Knights, 534 U.S. 122 S.Ct. 151 L.Ed.2d at 505. Reasonableness a Fourth analysis Amendment is determined

by assessing, hand, on degree the one the it which and, upon other, privacy intrudes individual’s on the the degree to which it is for promotion needed the of legitimate government interests. 118-19, 591,

Knights, at 122 534 U.S. S.Ct. at 151 L.Ed.2d at (quoting 295, 300, 505 Wyoming Houghton, 526 U.S. 119 1300, (1999)). 1297, 408, S.Ct. 143 L.Ed.2d 414 Court The considered as a weighty Knights’s probationer, status which as incarceration, “like of is a form criminal sanction imposed by a

564 verdict, finding, plea guilty.” after of an offender upon court 119, 591, at 122 at 151 L.Ed.2d 505 at S.Ct. Knights, 534 U.S. 3168, at L.Ed.2d at 107 S.Ct. (citing Griffin, U.S. omitted). 717) (internal Probation, noted the quotation at Court, punishments a of for point one continuum was beyond curtailed may freedoms be convicted criminals whose Further, Knights’s probation Id. law-abiding those of citizens. a warrantless searches were condi clearly stated that order therefore, his the concluded of Court probation; tion his Knights, diminished. 534 U.S. at was expectation privacy of 591-92, 151 119-20, 122 at 505. at L.Ed.2d S.Ct. of circumstances” scale “totality the side the the

On other of is the inter government the interest privacy from individual’s situation, conducting Knights’s search. est a in his legitimate had interest rehabilitation government society Knights, criminal actions. from future protecting 591-92, 151 The 119, 122 high L.Ed.2d at 505. at S.Ct. at U.S. strong fueled a government rate of probationers recidivism Knights’s diminished weighed heavily against that interest at Knights, 534 122 S.Ct. privacy. of U.S. expectation Department report a (noting at 506 Justice L.Ed.2d felony a were re-arrested for 43% probationers found release). The concluded years three Court within future preventing had a government legitimate by conducting warrantless by probationers crimes committed Knights, 534 U.S. at residences. probationers’ searches of 592, 151 Knights’s 121, 122 Balancing L.Ed.2d at 506. S.Ct. probationer against expectation reduced in preventing protecting recidivism and government’s interests cause” “probable that less than public, the Court observed (in rather than individualized suspicion, the form of reasonable Knights’s residence. suspicion) required a search of Id. “totality Knights later deployed Court Supreme a suspicionless whether

the circumstances” test determine police public officer on a conducted parolee, search sidewalk, under Fourth Amendment. was reasonable 126 S.Ct. California, U.S. Samson v. (2006). that, L.Ed.2d 250 The Court concluded on the contin- uum punishments violations, imposed for criminal parolee expectations has “fewer of privacy probationers, than because ” parole is more akin to imprisonment probation.... than Samson, 850, 2198, 547 U.S. at 126 S.Ct. at 165 L.Ed.2d at subject 258. Parolees are to a wide range conditions for release, including tests, their mandatory drug restrictions on activities, personal treatment, associations and psychiatric res- approval, idence and mandatory meetings with parole agents. Samson, 851, 547 U.S. at 126 S.Ct. at 165 L.Ed.2d at in Knights, 259. Samson As heavily focused on the high recidivism parolee which, rate population, in California time, Samson, during the relevant approached 70 percent. U.S. at 126 S.Ct. at 165 L.Ed.2d at 259. The Court concluded government that the in re-integrating pa- rolees, protecting society actions, from future criminal along statutory with a prohibition against “arbitrary, capricious, or searches, harassing” outweighed the parolee’s diminished ex- pectation under the “totality the circumstances.” Samson, U.S. 126 S.Ct. at 165 L.Ed.2d at 262.

B. Maryland The DNA Collection Act The Maryland DNA Collection Act was enacted portions The of the current statute challenged by Appellant were added in 2008.13 2008 Md. Laws 337. The stated purpose of the statute is “analyze type genetic markers contained or derived from samples;” the DNA assist an official crime; investigation of a to identify human remains; identify missing persons; and for “research and administrative purposes,” including the development of a pop- 13. Maryland amendments to the DNA Collection Act directed to subject provisions. arrestees are to sunset Absent affirmative action them, Legislature 2-501, 2-504, 2-505, from the 2-506, §§ to re-enact 2-511, 2-512, 2-513, abrogated and 2-514 will be on 31 December replaced 2013 and with permit sections that do not DNA collection provisions from arrestees. The current for collection of DNA from felons, however, convicted will remain. assurance. quality and to aid Md.Code

ulation database14 Art., § 2-505. The 2008 (2003, Safety Pub. RepLVol.), (i), § primarily 2-501 Definitions15 and amendments affected 2-504, Samples.16 § of 2008 Md. Laws 337. Collection DNA profiles, usually Population "a collection of DNA database means 14. evaluation, research, race, by quality grouped used for con- statistical trol, development protocol analysis DNA No and of forensic methods.” identifying population is personal information used in database. 29.05.01.01(B)(25) (2011). Regs. Md.Code § 2-501. Definitions. (i) body sample sample. sample” a or tissue DNA means fluid —"DNA (1) by felony a a provided is: an individual who is convicted of or Article; (2) § § 6-205 6-206 of the Criminal Law violation of or (i) by provided charged is with: a crime violence an individual who of violence; (ii) burglary or an attempt an commit a crime or or to of (3) attempt burglary; or to the statewide DNA to commit submitted part system testing investigation. a base as of criminal data Art., (2003, (i) Safety (empha- § Repl.VoL), Pub. 2—501 Md.Code text). sis added to 2008 amended present § text to that is relevant to the case was: 16. The added 2-504 subtitle, (3) (i) regulations adopted this a with under accordance sample charged be an individual who is DNA shall collected from attempt to a of with: 1. a crime of violence or an commit crime (ii) violence; burglary burglary, attempt an to commit At the or 2. or sample paragraph, of the DNA under this time collection given sample shall individual from whom a collected be notice may expunged sample destroyed in DNA be and the DNA record subtitle, (iii) § this DNA evidence accordance with 2-511 of collected a a scene or collected as evidence sexual assault at from crime investigator hospital relevant to the that a law enforcement considers suspect as or exoneration of shall be tested soon identification reasonably following possible sample. collection (d) charged Testing sample with crime under from individual (a)(3).— subsection (1) charged sample A from an individual with DNA collected (a)(3) may be or of this section tested crime under subsection system prior placed in DNA data base to the first the statewide arraignment requested by or date unless consented scheduled (3) paragraph provided in of this subsection. individual as (2) unsup- qualifying charges are to be If all criminal determined (i) immediately sample ported probable cause: the DNA shall be (ii) destroyed; shall be sent to the and counsel notice defendant sample destroyed. that the of record for the defendant (3) may request or An individual consent have the individual's sample arraignment purpose processed prior to for the sole DNA (i) against sample having that: been checked has The to allow the to collect DNA purport amendments State (or samples from individuals arrested for crimes attempted crimes) burglary prior being of violence or found guilty (2003, pleading guilty. RepLVol.), Md.Code Safety Pub. 2-504(a)(3). Art., § samples collected from are arres- (or tees the individual is at a charged when correctional if the facility custody) by arrestee is authorized collector protocols by Maryland trained the collection used State (2003, Laboratory. Police Crime Md.Code 2011 Repl.Vol.), 2-504(c). Art., § Pub. Safety Samples may be collected with force, necessary, reasonable if Maryland are mailed to the Laboratory State Police Crime within 24 hours collection. 29.05.01.04(C) (M) (2011). Regs. & samples Md.Code are placed not tested or the statewide until system arrestee, arraignment first scheduled or if earlier the (2003, gives arrestee consent. Md.Code 2011 RepLVol.), Pub. 2-504(d). Art., § Safety analyzed

DNA are samples accordance with FBI stan- requirements. dards and CODIS Regs. Md.Code 29.05.01.09(A)(2011). case, present the King’s DNA sam- ples were sent to an approved laboratory vendor for analysis. specific While the type analysis scientific to employed be is prescribed statute, not by the the polymerase chain reaction (“PCR”) method is used commonly by laboratories to analyze samples. Mary DNA I McCarthy, Am My Keeper?: Brother’s Familial DNA Searches in the Twenty-first Century, 86 (2011). Notre Dame L.Rev. In DNA analyses per- formed comply standards, to with PCR is used to FBI/CODIS replicate 13 core short-tandem-repeat loci. Id. These 13 loci by CODIS, were chosen the FBI for in response to congres- processed (ii) from the crime hospital; scene or the is related to charges against the the individual. (e) sample. sample Second DNA second DNA shall be taken if —A needed to obtain sufficient DNA for the statewide DNA data base system by good or if ordered the court for cause shown. (f) provide sample. Failure to DNA of an individual who is —Failure imprisonment not provide sentenced to a term of sample a DNA days by within 90 after probation. notice the Director ais violation of (2003, Art., RepLVol.), Safety § Md.Code Pub. 2-504. they are protections, concern because

sional over that are not to reveal “non-coding” thought DNA considered (2000) (codi- 106-900(1), H. at 27 Rep. information.17 private (2012)) (stating §§ at 42 13701-14223 the fied U.S.C. any information medical relating do “reveal records trait”). analyzed, the sample or other Once is condition (a the informa- representation DNA record numerical the loci) at each is statewide searchable uploaded tion identify- FBI CODIS No electronic database or the database. information, history, fingerprints criminal or photographs, ing in either DNA record supposedly alongside are stored Sheet, and DNIS Fact Fed. Bureau DNA database. CODIS Investigation, http://www.fbi.gov/about-us/lab/codis/codis- (last 2012). April visited 19 When the and-ndis-faet-sheet (a “hit”) arres- produces a match between an DNA database database, in a sample previously tee’s one stored the law enforcement officer who Maryland notify State Police sample. original may “hit” be used sample provided cause to obtain a warrant to obtain only thereafter as probable at trial. and is not admissible as evidence second Art., (2003, § Safety Pub. 2-510. RepLVol.), Md.Code charges or charge If an arrestee not convicted arrest(s), samples lead to the DNA qualifying which his/her destroyed are to be required expunged and records (2003, Art., Repl.Vol.), Safety authorities. Md.Code Pub. 2-511(a). allowed, however, if expungement § There is no are charges against placed or an arrestee precipitating charge probation the stet docket or the arrestee received before on (2003, Art., Repl.Vol.), Safety 2011 Pub. judgment. Md.Code 2-511(2). for misuse of penalties § The Act also for provides records, or wilful testing samples, DNA unauthorized DNA (2003, destroy Repl. 2011 samples. failure DNA Md.Code Art., Vol.), § 2-512. Safety Pub. is, however, current whether these There considerable debate as to

17. "junk” provide predictive genetic "non-coding” or no informa- Bunk?, Cole, Designation 102 See Simon A. Is the “Junk" DNA tion. 54, (2007) (highlighting U.L.Rev. 54 an academic debate Nw. DNA). significance non-coding

569 Raines, 25, 33, plurality In 383 Md. at 857 A.2d at this constitutionality, against a Fourth Amend- upheld Court statutory of the then-extant DNA collection challenge, ment scheme, which, amendments, for prior provided the 2008 samples only collection of DNA from individuals convicted of felonies, fourth-degree burglary, breaking entering and into Court, however, a vehicle. The divided deeply reaching was that result. The plurality opinion by Judge was authored judge majority Cathell. Two members the four authored separate concurring opinions.

Raines was convicted of separate two robberies committed 1999, in 1996. In serving prison while a sentence for a robberies, crime unrelated to the his DNA was collected existed, pursuant to the Act as it then because the 1996 Raines, 5, qualifying robberies were felonies. 383 Md. at 5 n. 2002, 857 A.2d 22 (plurality opinion). n. 5 profile from a 1996 rape uploaded unsolved to the state- wide database and found to match profile Raines’s DNA Raines, collected 22 383 Md. at 857 A.2d at (plurality opinion). Using the DNA hit probable database cause, the State obtained a search warrant to obtain a saliva Raines, sample from Raines in February 2003. 383 atMd. 6- A.2d 22 (plurality opinion). As result of the second victim, DNA profile testimony match and the of the 1996 rape grand jury against returned indictment Raines first- Raines, second-degree rape robbery. atMd. A.2d at Prior (plurality opinion). to his trial on the rape charges, evidence, Raines suppress moved to the DNA asserting original search was unconstitutional. Raines, 383 Md. at (plurality A.2d at 23 opinion). The motions court agreed. plurality opinion, Id. The on appeal, evidence, reversed the suppression noting nearly every federal and state court that had an analogous decided question upheld against Fourth Amendment attack the collec- Raines, tion of DNA from convicted felons. atMd. 857 A.2d at 25 (plurality opinion). test Using balancing for determining whether a search is reasonable under the Amendment, Fourth the plurality upheld constitutionality Act, as to convicted applied of the DNA Collection Maryland Raines, Md. at at 29. felons. A.2d balancing side of the scales of the privacy On the interest test, considered Raines’s status as a convicted and the Court person “severely expecta- incarcerated as one with diminished Raines, at 857 A.2d at 33 tion of 383 Md. privacy.” diluted further plurality opinion (plurality opinion). by crediting purpose that the expectation privacy Raines’s felons; convicted no “identify” of the DNA collection was in his or expectation privacy incarcerated individual has an the interest in identity. distinguished her Id. The Court from individ- searching searching “ordinary for “identification” in evidence them purpose gathering against uals for the very crimes that the search prosecute order to them for test, concluded Using Knights reveals.” Id. Court that there is cannot reasonable absent an why

no reason search be in the limited circumstances of this suspicion individualized case, expectation privacy was even where individual’s intrusion, government than in Knights, more limited swab, minimal at most and the government buccal in objective strong Knights. is as as Raines, at A (plurality opinion). 383 Md. at 857 A.2d identify was to highlighted Raines government crimes, recidivists, persons involved with unidentified (plurality opinion). bodies. 383 Md. at 857 A.2d at 31 concurring opinion disagreed plural- Raker’s with the Judge ity opinion severely expecta- as to its conclusion of the limited fluids, bodily tion of a convicted felon has his/her analogy her upheld acceptance but the statute based on fingerprints profiles providing purely between and DNA Raines, 44-45, 857 A.2d identifying information. 383 Md. to the assertion that a DNA (nodding profile State’s number). numbers, just similar to a social security series In a criticized the separate concurring opinion, Judge Wilner characterization of the State’s interest plurality opinion’s identification, “misleading it even to simply calling the DNA as hold, program designed much less that this for suggest, purpose providing criminality.” the evidence predominant Raines, 51, conceded, however, at 857 A.2d 49. He 383 Md. criminals a rate of recidivism and high that convicted have the in reliability government’s that DNA’s serves in way fingerprints photographs identification the same and Raines, 51-52, (Wilner, J., do. 383 Md. at 857 A.2d at 49 concurring).

In our next relevant case to consider the Fourth Amend- Act, State, implications ment the Williamson 413 Md. 521, 526, 626, (2010), 993 A.2d a told in 1994 police woman A raped that Williamson had her. sexual assault examination (but and no performed vaginal was swab collected DNA was analyzed). ultimately Id. plea Williamson entered Alford 2002, in In battery the case. Id. a different woman told her, that an unknown police raped assailant a sexual assault performed, vaginal forensic examination was and a swab was Williamson, 526, collected. 413 Md. at 993 A.2d at 629. The database, analyzed uploaded DNA was to the but there Williamson, profile were no DNA matches. 413 Md. at 526- 2005, In 993 A.2d at 629-30. Anne Arundel County Police grant received a financial be used solve cold cases. Williamson, 413 Md. at 993 A.2d at 630. Pursuant to the grant, police analyzed vaginal the the swab from the 1994 alleged rape, which resulted in a match to the DNA profile the 2002 Id. rape. suspected rapes. Police Williamson of both Id. being open After arrested on an unrelated warrant and room, police interrogation while he was held a Williamson a given by police. McDonald’s meal18 Id. He drank from the drink cup left the debris behind when he was taken from the room. Id. police The recovered the discarded cup and swabbed it for DNA. Id. DNA thus obtained was database, and the analyzed uploaded yielding results to the match to the specimens obtained from the 1994 and 2002 specify provided 18. The record does not whether Williamson was with a received, appears McDonald’s Extra Value Meal. If that was what he it value,” that the State received the "extra not Williamson. Williamson, 993 A.2d at 630. William- 413 Md. rapes. from jury charges stemming grand son was indicted Williamson, A.2d at 631. 413 Md. at rape. the 2002 Katz, test from the Court concluded two-part Applying cup police abandoned McDonald’s Williamson and, therefore, that the expect reasonably police could station Williamson, 413 Md. at investigate cup. might collect and that, even if the 536-37, argued at 635. Williamson 993 A.2d analysis of his DNA lawfully, seized cup was search and seizure for subsequent a second and constituted Amendment, required which of the Fourth purposes Williamson, A.2d at 637. 413 Md. at warrant. the dicta, police compelled suggested “[h]ad the Court detainee, sample pre-trial a DNA give Williamson to Wil- may weight.” have had some argument Williamson’s liamson, 540, at on the Relying 413 at 993 A.2d Md. the declaration Raines profiles produced in that DNA under Act identi- Maryland provide of the DNA Collection authority only, being the rather than concerned with person fication of within the genetic amount of information contained the vast that, because sample, actual the Court concluded Wil- DNA there was no Fourth Amendment cup, the liamson abandoned Wil- the by analysis sample. the of implicated search liamson, A.2d at 641 (analogizing 413 Md. at 993 garbage bag to a left outside cup abandoned DNA on the home). curtilage of a State, 209, 29 A.3d recently, Raynor Md.App. 201

Most (2011), of Special Appeals our on the Court colleagues 617 of analyzing expectation a reasonable tackled another facet jurispru- Fourth Amendment in one’s DNA under privacy in an unsolved Raynor suspect became Appellant dence. Police to come to the local case and was asked State rape investigation. Raynor, Md.App. 201 to talk about the barracks 214-15, Raynor for a police at 620. The asked at 29 A.3d Raynor, at 29 Md.App. 201 sample; he refused. interview, however, Raynor rubbed During A.3d at 621. the arm-rests of the chair up his hands and down repeatedly interview, Id. After police in which he was seated.

573 swabbed the arm-rests and obtained a DNA sample viable that, analyzed, once matched the taken from a kit rape Raynor, obtained from the victim. at Md.App. refused, motion, A.3d at 621. trial court Raynor’s suppress Raynor, Md.App. DNA evidence. at appeal, Raynor’s argument A.3d at 621-22. On the thrust of (similar Williamson’s, supra) was that he had a reasonable cells, expectation privacy despite the DNA within his skin having gathered lawfully by police the latter been from the Raynor, Md.App. aim-rests. 29 A.3d at 622. The Special Appeals, relying principally reasoning Court of on the Raines, Judge concurring opinion Raker’s concluded if appellant subjective “even could demonstrate a expectation privacy in his DNA he no profile, objective nonetheless had ly expectation reasonable in it because it used was for identification purposes only.” Raynor, Md.App. 222, 29 A.3d at 625. The appellate intermediate court rea soned analogous that collection DNA from the chair was and, therefore, fingerprint to collection of a latent not a constitutionally-protected search. Id.

C. The State of Fourth Amendment Challenges

Analogous Federal and other State Statutes upheld Courts have overwhelmingly against Fourth challenges Amendment federal and authorizing state statutes warrantless, suspicionless DNA collection from convicted criminals, including incarcerated prisoners, parolees, pro- and divided, however, bationers. Federal and state courts are on the constitutionality requiring of mere arrestees to submit to (and DNA sample collection. At the heart of this debate case) present is the of presumption cloaking innocence arres- tees and legitimate government whether outweigh interests rights of a who person adjudicated guilty has been of crime, charged and along is somewhere closer the contin- person uum to a who is not charged with a crime than he or she is to someone convicted of a crime. Buza,

In People Cal.Rptr.3d 755 (Cal.Ct.App.2011), — Cal.4th —, granted, rt. Cal.Rptr.3d ce Two, District, Division (2011), Appellate First P.3d 854 facially held unconstitutional California Appeal the Court Database Identification Forensic the section of California’s Act”) (“California Collection DNA Data Bank Act of 1998 and (2011)), taking of a (CahPenal § that authorized Code charged arrested or with from all adults sample DNA arrested for arson and vandalism Mark Buza was felony.19 by the required sample, a DNA provide and asked to that, informed Act; Id. Buza was he refused. California Act, sample a DNA provide refusal under the California Buza, 129 offense. itself a misdemeanor after arrest was information, Buza, on charged 756. The State Cal.Rptr.3d at vandalism, sample a DNA arson, provide refusal to with Buza moved for Act. Id. DNA Collection under the California sample, a DNA provide of failure to charge acquittal a suffi- felony was not being charged with contending that Id. His sample. a DNA require for the state to cient basis denied, provide to refuse to he continued yet motion was Id. The charges. convicted on all Id. Buza was sample. DNA force” to to use “reasonable law enforcement court ordered sentenced to 16 Id. Buza was sample. extract the DNA provide refusal to DNA. months, months for his including six into the uploaded would informed his DNA be Id. He was Id. database. a DNA provide for failure to

Buza his conviction appealed that, arrestee, entitled to the as an he was arguing sample, Fourth right, had the under the innocence and presumption of and seizures. Amendment, free of unreasonable searches to be Buza’s facial Buza, analyzing Cal.Rptr.3d at 755. arrestees, Act, is as to its treatment California DNA Collection 19. The same 13 substantially Maryland’s DNA Collection Act. The similar database, uploaded which analyzed to the state loci are identifying with the information is included to CODIS. No connected against use statutory protections unauthorized profile. ture There differ, howev- database information. The statutes’ disclosure of the or er, arraign- waiting require until a scheduled California does not in that request expunge- must analysis and arrestees ment ment, Maryland DNA procedures in the than the automatic rather Collection Act.

575 attack on the constitutionality authorizing the statute arrestees, collection from the court relevant summarized cases offenders, DNA collection of upholding highlighting convicted grounds the narrow on which these cases were decided or the Buza, expressed by deciding divided views courts. Cal.Rptr.3d (noting at 762 the “limited nature” of the holding Kincade, (9th 813, Cir.2004), in United States v. 379 F.3d applying only “lawfully adjudicated criminals whose proven substantially conduct heightens government’s interest in them,” monitoring and the Ninth in Circuit United States v.

Kriesel, (9th 941, Cir.2007), 508 F.3d 948-49 because its arrestees). did holding apply

The Buza court looked also to opinions that evaluated DNA collection from arrestees or pre-trial detainees. 129 Cal. Boucher, Rptr.3d at 763. In Friedman v. 580 F.3d (9th Cir.2009), a Montana law enforcement officer requested (under a Montana statute collection authorizing felons) from convicted from a pre-trial detainee who had been convicted, sentenced, and served time to completion Nevada previously for an unrelated crime.20 The Friedman court that, despite concluded the state’s assertions that pretrial detainees expectation have a limited of privacy and that the government a legitimate has in collecting DNA sam ples database, DNA, its forcible extraction of without a warrant the absence of individualized suspicion, or for purposes crimes, of solving unsolved was unconstitutional applied to Boucher. 580 F.3d at 856. The court noted government interests that would offset expectation certain (prison circumstances security supervi or integration sion and of parolees) are not present pre-trial with and, additionally, detainees Montana’s provides constitution greater privacy protections than the Fourth Amendment. Friedman, 580 F.3d at (citing government interests in Samson, 547 U.S. at 126 S.Ct. at 165 L.Ed.2d at 20. Friedman was convicted and served his sentence in Nevada and was parole probationary not under supervision by Montana. Friedman v. Boucher, (9th Cir.2009). 580 F.3d

262). argument the government’s In to the response privacy rights of the reduced search was reasonable because the detainees, responded noting the court pre-trial pre suspicionless has not allowed searches Supreme Court Fried prison security. reasons other than trial detainees for man, Quoting 856-57. from Schmerber v. 580 F.3d at Califor nia, 1826, 1835, 16 L.Ed.2d 919 S.Ct. U.S. informed, (1966), importance the emphasized “[t]he court determinations of the issue whether detached deliberate and is guilt in search of evidence of body or not invade another’s Friedman, The 580 F.3d at 857. indisputable great.” holdings the in Kincade distinguished Friedman court Kriesel, those cases addressed con supra, because discussed only pre-trial a detainee victed criminals and Friedman was the Id. purposes for the of Montana statute. (9th Pool, Cir.2010), a v. 621 F.3d 1213 United States a holding of panel of the Ninth Circuit affirmed the

divided constitutional, an judge against who found magistrate federal of the Bail Reform Act of 1966 as-applied challenge, provisions (18 3142(b), (c)(1)(A) (2009)), Finger- and the DNA § U.S.C. (2009)) (42 Pool, requiring § U.S.C. 14135a print Act of 2005 arrestee, a as a of his provide sample DNA condition as release.21,22 Pool, majority opinion adopting The pre-trial the totality the magistrate judge’s approach, applied granted rehearing en banc that the The and directed Ninth Circuit 21. Pool, (9th opinion, judge panel United States v. 621 F.3d 1213 three Pool, Cir.2010), precedent by any as court. United States not be used Cir.2011). (9th rehearing pend en banc 646 F.3d While the judge pleaded guilty, ing, and the Ninth Circuit vacated the three Pool Pool, opinion appeal moot. States v. panel and dismissed United Cir.2011). (9th 659 F.3d 761 judge that an Act of 1966 allows to order 22. The Bail Reform recogni- charged, her but is released his or individual who has been trial, awaiting "cooper- appearance while zance or bond an unsecured facing sample" or of a DNA if he or she arrested ate in collection (2009). 3142(b) Fingerprint § Act charges. U.S.C. The DNA federal authority persons provided samples DNA from to collect of 2005 arrested, facing charges, from States are or convicted non-United "who authority under States.” persons detained United who are (2009). 14135a(a)(l)(A) § U.S.C. “judicial circumstances test and concluded that a grand jury- finding probable cause” is a “watershed event” that tips scales favor of “the government’s interest in definitively determining identity,” defendant’s at the expense of a “defendant’s privacy interest giving sample as a ” condition of pre-trial release.... 621 F.3d at magistrate likened the requirement to other pre-trial conditions of release that limit liberty, including monitoring Pool, electronic and mandatory curfews. 621 F.3d at 1217. The appeals-court-panel majority concluded that Pool any greater had not shown privacy interest in his DNA (a convict), than had Kinkade supra, because the DNA statute required only identifying numbers be used in report the Pool, ing system. 621 F.3d at 1222. The competing govern ment allowing interests included “the government to ensure that the defendant did not crime[;] commit some other .. . discouragetd] a defendant from violating any condition of his release”; or her pretrial and served the purpose same identifying potentially dangerous individuals to the public, Pool, whether arrestees or convicts. 621 F.3d at 1223. dissent, In Judge Schroder countered that United States v. Brown, (9th Cir.2009), F.3d 414-15 required that the government bear the burden of showing that searches and seizures are reasonable under a Fourth Amendment excep- Pool, tion. 621 F.3d at 1237. Under application its test, balancing the dissent concluded that Pool’s expectation of privacy had not and, been reduced aby therefore, conviction the government’s asserted interest in Pool was obliged, in order to overcome Pool’s expectation, to be even signifi- more cant than those recognized with regard convicts; gov- the ernment may rely on a “generalized in preventing the by Pool, commission of crimes pretrial defendants.” F.3d at 1238. The dissent remarked also on the differ- ence between profile the DNA and the DNA sample; although the former contains numeric only, identifiers the latter con- tains genetic the entire makeup of an individual. Id. Mitchell, (3rd United States v. 652 F.3d Cir.2011), — denied, —,

cert. U.S. 132 S.Ct. 182 L.Ed.2d 558 (2012), Circuit, banc, en reached sitting Third divided Pool, the Mitch- majority supra.23 as did similar conclusion attempted with possession ell was indicted for one count of Mitchell, cocaine. 652 F.3d at 398. While intent distribute detention, he to give refused a DNA pre-trial (42 to the DNA Collection Act pursuant demanded federal (2011)). 14135a(a)(l)(A) upheld § Id. His refusal was U.S.C. Mitchell, 652 398. On the court. F.3d at federal district Mitchell, 652 F.3d at 402. Third Circuit reversed. appeal, arres- argued that collection of DNA from samples Mitchell the DNA Act pre-trial tees and detainees under Collection seizure, violating constituted an unreasonable search parties disagreed Id. The whether Fourth Amendment. as-applied had constitutional Mitchell mounted facial court, court, appellate following trial challenge so Marcavage, F.3d in United States v. guidance Mitchell, (3rd Cir.2010), types challenge. both considered court, following the direction in 652 F.3d 405.24 Holder, Distributing Co. v. 557 F.3d 327-28 Connection (6th Cir.2009), judicial practice is to usual address “[t]he challenge challenge,” before a facial considered as-applied constitutionality of the statute as to the facts applied first Mitchell, (internal quota- 652 F.3d at 405 in Mitchell’s case. omitted) omitted). (internal citation tion test, the Using totality of the circumstances Knights separate that there two majority Mitchell court concluded are Mitchell, when DNA is collected. 652 F.3d 406. searches collection, via or usually The first is a buccal swab physical physical Id. The court concluded that a blood draw. petition for on 22 23. Mitchell filed a writ of certiorari November 2011 84) Supreme (application 11A3 United States Court. The number petition 19 March was denied on 2012. (3rd Cir.2010), Marcavage, F.3d In United States v. as-applied Marcavage ambiguity was as to whether advanced an there Marcavage’s attack. court concluded that or facial constitutional The "hybrid” approach advancing permissible and both attacks was challenge proceeded analyze the facial first the burden was because him) (against "significantly quickly. and could be decided Id. heavier” so) and, therefore, (relatively quick painless was intrusion favor. invasion, weigh not the defendant’s minimal and did Skinner, 625, 109 Mitchell, 489 U.S. at (citing 652 F.3d at 407 Goord, 665; 1417, 103 Nicholas v. 430 F.3d L.Ed.2d at S.Ct. at (2d Cir.2005)). process search is the 656 n. 5 The second the DNA profile. and creation of ing sample of the DNA Mitchell, challenge pointed Mitchell’s to the 652 F.3d at 407. contained within a DNA personal vast amount of data court, for misuse of the data. Id. The potential and the however, relying by argument, Mitchell’s persuaded of the data and the statutory protections on the numerous profile. create the Mitch “junk” nature of the 13 loci used to ell, analogy The court embraced an between 652 F.3d at 408. both as routine book profiles, treating and DNA fingerprints detainees have a ing procedures, pre-trial and concluded interest relative to means to ascertain and diminished (“[I]t Mitchell, 652 F.3d at 411 is confirm their identities. fingerprinting of individuals who ‘elementary’ that blanket charged with a crime does not lawfully have been arrested or Amendment.”) (quoting run afoul of the Fourth Smith (D.C.Cir.1963)). States, United 324 F.2d inter- government’s in Mitchell conceded that the court strong arrestee are not as obtaining ests DNA from an convicts, or 652 F.3d at 413. probationers, parolees. with in law enforcement Mitchell maintained that the interest “equally by collecting samples post-convic- well served tion,” however, government’s persuaded the court was in identifying arres- argument strong that there is Sczubelek, Id. from United States v. 402 F.3d Quoting tees. (3rd Cir.2005), court reiterated that a the Mitchell only to conceal not his may steps criminal take “unusual conduct, identity” by using disguises, changing his but also names, 652 F.3d at 414. changing physical or features. Such amplify to obfuscate their identities attempts by criminals accurately government’s identify pre-trial need to use DNA arrestees, majority, concluded the court. Id. The detainees however, no mention of that Mitchell had made evidence had identity government to conceal his or that the attempted identity without resort- any determining difficulties Mitchell’s profile. to a DNA ing Brown, majority, quoting

The Mitchell from Haskell v. (N.D.Cal.2009), F.Supp.2d perceived compo- two (the name, identity: person person’s nents to “who that is date (whether etc.) birth, person and what that has done record, a criminal whether he is the same individual has town, as-yet committed an unsolved crime across person who etc.).” placed great weight Id. The court on the second impor- that a criminal record has component, noting person’s release considerations. pre-trial tant ramifications for Id. conceded, however, “in comparison probation- court to the cases, supervision prevention the interests in of recidi- er diminished, absent, if not vism are much the context of Mitchell, 652 at 415 n. pretrial arrestees and detainees.” F.3d (9th Scott, States v. 450 F.3d (quoting United Cir.2006) (“That cannot, an individual is with a crime charged rise to inference that he is give any as a constitutional matter crime if he likely any more than other citizen to commit a custody.”)). Concluding government’s released from render the identifying interest arrestees was sufficient to constitutional, Mitchell, applied DNA Act the court failed. challenge resolved that Mitchell’s facial statute Mitchell, 652 F.3d at 415-16.

A strongly majority’s worded dissent criticized the Mitchell conclusions, asserting gave that it “short shrift” to arres- it to an interest privacy by reducing only tee’s interest (Rendell, J., Judge identity. dissenting). 652 F.3d at on the use of statutory Rendell maintained that limitations irrelevant, are not profiles, “though wholly panaceas, not privacy ... and cannot offset the severe invasion of that takes DNA is seized and searched.” Id. place when an arrestee’s arrestees, “while The dissent described certain, situations, very diminished in circumscribed are so to intrude into their bodies permit weak as to Government in their and extract sensitive information coded highly Mitchell, (Rendell, J., dissenting). 652 F.3d at 421 genes.” government to the characterization of the Objecting majority’s “identification,” countered Judge Rendell simply as detainee pre-trial arrestee and collecting of purpose the that allowing of law in the sense the arrestee “identify” not to has been person the correct confirm that to enforcement in federal has been records of who keeping or arrested they the information profiles and to use those custody, but to solve addition- in prosecution the as evidence provide crimes. al and future past (Rendell, J., Quoting

Mitchell, dissenting). at 422-23 652 F.3d Kincade, that argued Rendell Judge in dissenting opinion an ‘identify’ ... not sample does collection of a DNA “[t]he than a search his any more detainee] or pre-trial [arrestee more information more and merely collects home does—it to that can be used detainee] or pre-trial that [arrestee about Mitchell, crimes.” or future past unsolved investigate Kincade, 379 (Rendell, J., dissenting) (quoting F.3d at (Reinhardt, J., Relying on the dissenting)). n. 16 F.3d at 857 statute, expungement provision of the presence “identifica- simplistic a argument against its dissent bolstered interest, stating that being government the sole purpose tion” maintaining interest were real the Government’s [i]f identifies, no need to there would be of arrestees’ records failure to file acquittal upon those records expunge Indeed, statutory provi- this the arrestee. charges against conviction, fact of that the sion serves as an admission has a arrest, finding a that an individual justifies mere in his DNA. expectation diminished J., Mitchell, (Rendell, dissenting). Attacking 652 F.3d at 423 usage of the DNA only” “identification purported further the likened Judge Rendell offered-up by government, medical seizing] personal to “the Government process of that only us[ing] ... the subset you information about but Mitchell, F.3d identify you.” that information serves (Rendell, J., dissenting). analogy fingerprints between dissected also dissent 197-98, Sczubelek, which DNA, 402 F.3d at from quoting collecting “requires production of evidence opined view,” body subject below the surface which is not public which are on the opposed fingerprints readily accessible Mitchell, (Rendell, J., of the 652 F.3d at surface skin. 424-25 (internal omitted). dissenting) Judge rejected citation Rendell Pool, for reasoning majority probable cause event,” particular observing crime is “watershed that Pool explains why finding probable “never cause in connection particular justifies with a crime the collection of DNA profiles which, use in with crimes connection other for defini- tion, or, indeed, finding probable there has been no cause Mitchell, (Rendell, J., any suspicion at all.” 652 F.3d at 427 dissenting). Finally, the dissent attacked the foundation of Fourth majority’s analysis by noting the Amendment that clearly there are defined to the exceptions general prohibition searches, on warrantless reasonable including suspicion Mitchell, danger prison jail imminent and and searches. 652 (Rendell, J., Ohio, F.3d at 428 dissenting) (citing Terry v. 392 1, 27, 1868, 1883, (1968); 88 20 U.S. S.Ct. L.Ed.2d 909 (3rd Cnty., Cir.2010); Florence v. 621 F.3d Burlington 307 822-24). Kincade, generally Concluding see 379 F.3d at exceptions applicable majority none of those were and that the should not have opinion accepted nonspecific, govern- broad goals fighting justify ment crime to a Fourth Amendment analysis under an violation that seemed more like a First review, Amendment “rational basis” the dissent advocated more stringent approach required for Fourth Amendment Mitchell, (Rendell, J., analyses. dissenting). 652 F.3d at 428 major The final case considered the Buza court was Haskell, 677 at which denied a F.Supp.2d preliminary injunction enjoin to collection of a sample pursuant Buza, the California DNA Collection Act. 129 at Cal.Rptr.3d in challenge 753. Plaintiffs Haskell mounted a facial to the California Act under the Fourth Amendment. 677 F.Supp.2d court, at 1192. The tracking reasoning generally Haskell Kriesel, that, of Kincade and concluded arrestees although greater have a interest than that interest is privacy prisoners, general less than that of a member of the there- population;

583 of restrictions. range a broad subject to fore, are arrestees adopted 1196. The court Haskell, F.Supp.2d and con- other courts accepted by analogy fingerprint/DNA weighty.” “is not interest an arrestee’s cluded that reasoning Following Haskell, F.Supp.2d has that identification Mitchell, concluded court the Haskell legitimate has government and components two arrestee, of birth of name and date only (even yet acts as criminal history criminal his or her but also Haskell, The court undiscovered). at 1199. F.Supp.2d at some might gloves wear individual “[a]n concerned that was mask, identification, or wear thwarting fingerprint point, and, therefore, DNA sam- photographs,” use of thwarting the form of identifica- necessary a more accurate pling tion. Id. cases, rejected the Buza court the relevant sifting its Mitchell, Pool, upon relied analogy DNA/fingerprint to the Buza, at 768. Similar Cal.Rptr.3d Haskell. the use of the Mitchell, on whether Buza focused

dissent the search that the “full extent of overcome profile could Buza, (citing Mitch- at 768 Cal.Rptr.3d place.” has taken J., (Rendell, The search ell, dissenting)). 652 F.3d at genome, of the entire human the extraction referred to was develop profile uploaded the DNA necessary which court, Buza, although Cal.Rptr.3d at 769. CODIS. thought DNA” is not “junk that the so-called acknowledging information, predicted advances genetic to code for currently which, preser- technology along perpetual with in scientific (not creates just profile), the DNA sample of the DNA vation requiring fingerprinting that Noting Id. privacy concerns. Amendment scruti- undergone Fourth after arrest has never simply notion that because rejected court ny, the Buza place take its that DNA should commonplace is fingerprinting additional booking procedure, without as a routine readily scrutiny.25 Id. relatively interpretive facile concern the

25. The court noted with some (certain occurring convicted between Kincade DNA Act evolution of the As to the governmental “identification” touted court, the Haskell the court in Buza countered that purpose of DNA sampling investigation actually. 129 at Cal.Rptr.3d Fingerprints 770-71. taken for identification that the who “verify person fingerprinted really is who he is,” says he while those taken for investigatory are purposes taken “to connect person fingerprinted] [the to a crime with Buza, he not already which was connected.” 129 Cal.Rptr.3d Garcia-BeItran, (quoting at 770 United States v. 389 F.3d (9th Cir.2004)). Fingerprints obtained for identification court, are admissible while those obtained for investigatory if purposes suppressed must be their purpose was “connect criminal alleged activity.” [the arrestee] Id. (quoting Gar cia-Beltran, 865; Florida, 389 F.3d at citing Hayes v. (1985); U.S. 105 S.Ct. 84 L.Ed.2d 705 Davis v. Mississippi, 394 U.S. 89 S.Ct. 22 L.Ed.2d 676 (1969)). Addressing the far-reaching, two-component defini Haskell, tion of “identification” advanced in the Buza court (the reasoned that the very component nature the second of, criminal history as-yet-unsolved crimes by, committed that person) implies “investigatory” an purpose. 129 Cal. Rptr.3d 753. The realities of the DNA processing system that happen mean identification does not immediately (noting average days) time of 31 and the processing DNA database Buza, does not contain identification information. 129 Cal. Rptr.3d 772-73. Collection and processing samples in California requires fingerprints alongside be used “identify subject” specifically, lending support further to the conclusion purpose Buza, collection is not identification. Cal.Rptr.3d at 773 FAQs: Mechanics, 1.1, (quoting question http://ag. Collection (last ca.gov/bfs/content/faqphp#mechanics visited 4 Aug. 2011)). The identity-obscuring initiatives of concern in Has kell and the comment in way Kincade that there is no to avoid offenders), (all offenders), (individu-

felony felony Kriesel convicted Pool offenses), (arrestees charged felony als with and then Haskell who have cause). Buza, judicial probable People not had a determination of Cal.Rptr.3d (Cal.Ct.App.2011). 770 were deemed the crime at the scene of leaving DNA that concluding in favor of heavily weighing Buza court purposes, as these investigatory for actually sampling DNA Buza, 129 Cal. investigation. to crime scene directly relate cannot mask his or an “arrestee (noting that at 773-74 Rptr.3d being fingerprinted” while wearing gloves identity by her during routine being photographed a mask while by wearing concluded, from the text of court The booking procedures). the Act Act, purpose of DNA Collection the California of component the second with “unquestionably was consonant” essentially. process identification, investigatory is an which a Buza, California Act “involves at 774. The Cal.Rptr.3d DNA, with of all arrestees’ search warrantless programmatic judicial determi prior any and suspicions out individualized Buza, cause, 129 Cal. guilt.” much less probable nation of wheth is “to determine purpose Because Rptr.3d crime and past to a unsolved can be connected er the arrestee or in may he or she now through which to create a databank offense,” DNA the California connected to a new the future be exceptions needs any special not meet of Act did Collection fighting outweigh in crime did not a generalized and Id. of mere arrestees. interests on the weighed-in topic, Minnesota Appeals of The Court context, unconstitutional finding facially question in a certified charged defendants to required a Minnesota statute judicial finding probable a after provide sample, a C.T.L., In re cause, a conviction. prior but Welfare C.T.L., juvenile a (Minn.Ct.App.2006). N.W.2d abetting fifth-degree aiding assault charged with of Minneso robbery. Id. The State first-degree aggravated biological specimen juvenile provide ta ordered § (Supp.2005)26 299C105 to Minn.Stat. analysis pursuant question certifying for an order juvenile Id. The moved provides the DNA for destruction of Minnesota DNA statute 26. guilty charges against person or the person is found not if the C.T.L., 722 N.W.2d are later dismissed. In re Welfare (Minn.Ct. App.2006). 586

the statute’s facial constitutionality.27 began Id. The court its analysis premise with the that of “a specifically outside few exceptions,” established and well-delineated searches conduct judicial ed “outside the process, prior approval without aby C.T.L., judge magistrate^] are per se unreasonable.” 722 (quoting Coolidge N.W.2d at 488 v. New Hampshire, 403 U.S. 454-45, 443, 2022, 2032, 564, (1971)). 91 S.Ct. 29 L.Ed.2d Schmerber,28 Drawing holding on the the Minnesota court concluded that “establishing probable cause to a person arrest not, itself, to permit biological specimen sufficient to be taken from the person obtaining without first a search war C.T.L., rant.” 722 N.W.2d at 490 (noting holding Schmerber, 769-70, 384 U.S. at 86 S.Ct. at 16 L.Ed.2d at 919, that interests in human dignity “[t]he and privacy which the Fourth Amendment protects any forbid such intrusions obtained”). the mere might chance that desired evidence be The State in C.T.L. advanced a Pool “watershed event” argument regards cause, as the initial finding probable to which the Minnesota court responded “argument that the fails ... recognize probable that cause to support a criminal charge is not the same thing probable cause to issue a search warrant.” 722 N.W.2d at 490. The court explained that “probable charging purposes] cause ... [for exists when question 27. The certified was 299C.105, 1(a)(1) (3) § portions Do the of Minn.Stat. subd. and (Supp.2005), personnel biologi- that direct law-enforcement to take a offense, specimen person charged cal from a who has been with an convicted, but not violate the Fourth Amendment to the United States I, Constitution and Article Section of the Minnesota Constitution?

C.T.L., 722 N.W.2d 486-87. driving Schmerber involved a defendant who was arrested for drunk blood-shot, probable based on the cause of the smell of alcohol and his 757, 769, watery, glassy eyes. California, Schmerber v. 384 U.S. 1826, 1835, (1966). Supreme S.Ct. 16 L.Ed.2d Court upheld drawing special of blood from Schmerber on the narrow waiting circumstances for a search warrant would have allowed thus, system disappear, exigent alcohol his circumstance Schmerber, pivotal reasoning. to the Court’s 384 U.S. at “emergency” S.Ct. at at 919. Outside of this situa L.Ed.2d tion, body “by a warrant to invade the should be obtained neutral magistrate.” detached Id. charge against brings the worthy of consideration evidence (internal cita- Id. probability.” within reasonable prisoner omitted). hand, support cause probable the other On tions probability fair when there is “a is found a search warrant in a particular be found of a crime will evidence contraband omitted). (internal of the two Conflation citation Id. place.” concluded, dis- cause, court the C.T.L. probable standards that, requirement the Fourth Amendment penses with search, must personnel conduct a “law-enforcement order to magistrate’s and detached based on a neutral obtain a warrant that the search probability there is a fair that determination crime.” 722 N.W.2d or evidence of a contraband produce will in the Minne- provision Relying expungement 491. on the at (which guilty ultimately allowed those found statute sota samples DNA de- to have their charges dropped had found not persons those the court reasoned stroyed), than State’s expectation privacy greater guilty had an therefore, applied and, this interest should be DNA need for yet. but not convicted persons charged, to all reasonably court C.T.L., Finally, the C.T.L. at 491-92. N.W.2d charged, is person of a who privacy that the concluded convicted, the state’s interest outweighed by is not but not 722 N.W.2d at collecting samples. DNA 8:05CR204, 2005 WL Purdy, No. States v. United (D.Neb.2005), 40433, 3465721, *1, *1 Dist. LEXIS 2005 U.S. court, mag- of its against the recommendation federal district suppress a defendant’s motion judge, granted istrate Personal Identifying under the Nebraska evidence collected (“Nebraska Act”), law en- which allowed Act Characteristics order, from forcement, samples to collect DNA without a court outstanding on an warrant was arrested Purdy arrestees.29 "physical from evidence Act allowed collection 29. The Nebraska identifying perpetrators of criminal them in individuals to aid offenses,” palm prints, footprints, measure- including "fingerprints, ments, samples, printing, handwriting exemplars, lineups, hand voice samples, compara- samples, samples, samples, saliva hair blood urine Purdy, United States photographs.” personal appearance, tive and, arrest, at to possess Purdy, found a firearm. WL 3465721, *1, 40433, at Dist. U.S. LEXIS at *3. After his arrest, correctional forcefully samples, officers collected injuries causing physical Purdy required medical treat- Id. Conceding ment. that the Fourth Amendment does not protect person “characteristic that a knowingly exposes likeness, like public,” fingerprints or visual court DNA as not distinguished exposed public to the and able to reveal medical facts for which individuals have a reasonable privacy. Purdy, 2005 WL *3-4, expectation at Dist. U.S. LEXIS at *11. with the Beginning Katz premise that a per search without warrant se unreasonable, the court concluded that none of the “special exceptions needs” were applicable totality and used the circumstances balancing Purdy’s test to evaluate challenge. Purdy, 2005 WL *4-5, at 2005 U.S. Dist. LEXIS 40433, at *13-15. The Act provide Nebraska did not a consti- Purdy tutional basis the search of because the statute arrested, would sampling anyone allow warrantless DNA showing “without the of any alleged nexus between the crime Purdy, and the information that a DNA test would reveal.” *6-7, WL 2005 U.S. Dist. LEXIS *21-22. Comparing expectation and the gov- convicts, ernment parolees, probationers and to arrestees, that of the court resolved that an arrestee’s expec- privacy outweighs tation of the government desire war- Purdy, 3465721, *6-7, rantless searches. 2005 WL at 40433, U.S. Dist. probable LEXIS at *20-21. Because cause search, for arrest is not the as required person same for a “[a] arrested, convicted, but not for a certain crime cannot be provide forced to DNA “identification” evidence without a showing that such evidence would him the identify perpe- 3465721, *7, Purdy, trator of the crime.” at WL 40433, U.S. Dist. LEXIS at *22. The court noted also that its holding did not all arrestees from prevent being subjected 8:05CR204, 3465721, *1, 40433,

No. 2005 WL 2005 U.S. Dist. LEXIS (D.Neb.2005). *3-4 rather, law officers would need sampling; enforcement to obtain a search warrant from a “neutral and detached *7, Purdy, 2005 U.S. judicial officer.” WL Dist. LEXIS at *23. fractured, three-judge

A of the Arizona intermediate panel allowing judge an Arizona statute appellate upheld court upon sample. collection of a DNA pre-trial condition release (Ariz.Ct.App. 228 Ariz. 265 P.3d 389 Kaipio, Mario W. 2011). “advisory” an court juveniles charged30 Five were charges. the probable bringing concluded there was cause for W., Pre-trial was conditioned Mario 392. release P.3d W., 265 P.3d at 395. giving samples. on the of DNA Mario juveniles contended that the Arizona statute violated the protections against United States and Arizona constitutional priva unreasonable and seizures and their rights searches test, cy. Using totality Id. the of the circumstances the Court Arizona, One, weighed following Appeals Division in balancing juveniles’ privacy rights against factors government interest: judicial finding probable

whether there was a cause that juvenile offense, charged committed the the level of intrusion in pre-adjudicative proce- relation to the other dures, degree required and nature of intrusion physical test, results, restricting statutes the use of test any regarding improper evidence the record uses of the results. W.,

Mario 265 P.3d at Agreeing with the conclusion in Pool, event,” finding that a of probable cause is a “watershed the court juveniles distinguish determined the five were able from general public way such a permitted exception prohibition against to the Fourth war Amendment’s rantless searches. Id. Other statutory placed restrictions arrested, juveniles judicial 30. Two additional were but there was no Kaipio, finding probable cause as to them. Mario W. v. 228 Ariz. Therefore, (Ariz.Ct.App.2011). 265 P.3d court the con- pre-trial the cluded condition of DNA collection was unconstitutional Id. applied to the facts of their cases. detainees, tracking, supported the including GPS pre-trial expectation a reduced juveniles that the had court’s conclusion W., Ariz. R.P. Juv. Mario (citing 265 P.3d at 397 of privacy. 23(E)). was an “en- interest served government The Ct. deterrence,” in based prevention interest crime hanced W., Mario 265 P.3d of cause. finding probable the post-arrest physical also that the level of The court noted at 397. was minimal. Id. government intrusion of a buccal swab determining accurately juvenile’s strong had proper pre-trial in order to set history criminal past Moreover, taking an arrestee’s DNA Id. conditions. release solving expands crimes and government aids the W., Mario at The court relied 265 P.3d DNA database. with Mitchell identification, agreeing of also upon purpose expectation privacy have a of legitimate that arrestees do not W., Mario concurring at 399. A identity. 265 P.3d their fingerprint-to-DNA to advance the judge separately wrote W., the statute. Mario for analogy upholding as the basis (Orozco, J., concurring). at 401 P.3d the analo- rejected in a judge, dissenting opinion, The third and, on the arrestees’ focusing gy DNA-to-fingerprints innocence, concluded that the State failed presumption for justification abrogating to provide meet its burden W., 265 P.3d at 404 Mario juveniles’ privacy. expectation for (Norris, J., majority criticized the dissenting). The dissent test when it totality of the circumstances misapplying the if any expectation had “little juveniles concluded that the have been arrested and they in their DNA because Mario cause to hold them trial.” probable court has found Rather, W., (Norris, J., argued dissenting). P.3d at 405 the conviction dissent, jurisprudence, Court Supreme under not the privacy, meaningfully expectation what alters W., (Norris, J., at 405 dis- Mario 265 P.3d charging. mere senting) (citing Knights, 534 U.S. S.Ct. 504) added). majori- Criticizing also the (emphasis L.Ed.2d at release sampling pre-trial of DNA to other ty’s likening maintained, conditions, as the better reasoned Judge Norris tech- prevailing under collection sampling that DNA approach, 591 ñiques distinguishable physical is because it is a intrusion into juveniles’ and body privacy was further invaded when extracted. Mario the DNA sample analyzed profile and the W., (Norris, J., 265 P.3d at 406 dissenting).

Rejecting fingerprint/DNA analogy, Judge Norris noted that a “fingerprint impression is an left by depositing of oil upon contact between a surface and ridges the fission fingers,” while DNA “stores massive of personal, amounts W., private data about an individual.” Mario 265 P.3d at 407 Mitchell, (Norris, J., dissenting) (quoting 221; 365 F.3d at Kincade, (internal (Gould, 379 F.3d at 842 n. 3 concurring)) J. omitted). quotations The pains protest dissent took also to subsuming DNA sampling booking into “routine practices,” countering that fingerprinting became routine prior evolution of modern expectation juris “reasonable of privacy” “[tjhat prudence and today accept we fingerprinting as a practice routine without Fourth Amendment implications does not mean accept we must DNA sampling being the same.” W., Mario (Norris, J., 265 P.3d at 407-08 dissenting).

Finally, Judge Norris criticized the majority’s characteriza tion of purpose the statute’s as identification only, pointing out that, case, if that were the expungement upon the dismissal of W., charges would not be necessary. Mario 265 P.3d at 408 (Norris, J., dissenting). Noting that the State failed to pro duce any evidence that there was any difficulty in obtaining accurate identification of any of juveniles, which might require another identification, method of the dissent argued that “DNA provides information; itself no identifying a DNA sample is only useful when it can compared be to a prior DNA sample obtained from the same person ... the arrestee’s [i]f database, DNA is a DNA there can no comparison be and thus no verification of identity.” Id. The dissent closed with its concern that the majority opinion will “contribute to the downward ratchet of expectations,” and that “[a] highly expansive opinion search], [authorizing a warrantless one that draws no hard lines and revels in the boon that new technology enforcement, will provide law engraved is an W., invitation to Mario expansion.” future 265 P.3d at 409 Scott, 867; (Norris, J., Kin- dissenting) F.3d at (quoting cade, (Kozinski, C.J., dissenting)). F.3d survey opinions Anderson

We conclude our relevant with (2007). Commonwealth, 650 S.E.2d Va. Supreme Virginia upheld, against as-applied Court challenge, a that author- Virginia Fourth statute Amendment Anderson, upon from ized DNA collection individuals arrest. rape 650 S.E.2d Anderson arrested pursuant his DNA was collected sodomy Anderson, (2007). § 19.2-310.2:1 650 S.E.2d Va.Code Ann. DNA profile uploaded DNA to the 704. Anderson’s databank, in a a forensic collected resulting match to “hit,” on the rape. from an 1991 Id. Based database unsolved for an DNA a search warrant additional detectives obtained swab, provided primary of which the analysis buccal the rape trial 1991 well as the at Anderson’s for the as evidence the evidence suppress Id. His motion to DNA 2003 crimes. robbery, of and rape, Id. He was convicted was denied. terms, years. Id. plus to two life ten sodomy, and sentenced that, Supreme although The Court concluded Virginia no different in character sample is more it “is revealing, DNA Anderson, 650 arrest.” acquiring fingerprints upon than ad analogy the Adopting fingerprint-to-DNA S.E.2d 705. Nicholas, Sczubelek, in this Court’s decision vanced and Raines, that DNA collection is Virginia court concluded the of booking way as a process of the routine acceptable part as Anderson, 650 S.E.2d obtaining arrestee’s identification. so, reliance doing rejected at 705-06. In the court Anderson’s Edmond, 47, 32, 121 v. 531 U.S. S.Ct. City Indianapolis of (2000), 447, 457, 148 333, standing proposi 347 for the L.Ed.2d justified “only crime can be general purposes tion control v. Ferguson quantum suspicion,” some of individualized Charleston, 1281, 67, 121 149 L.Ed.2d 532 U.S. S.Ct. City (2001), are general law enforcement searches stating 205 cause. probable requirements from the exempt Anderson, upon at 706. court relied Virginia S.E.2d (4th 302, 962 F.2d Murray, v. reasoning the Jones Cir.1992), Virginia only application considered which felons, convicted but collection statute to extended such, “no booking procedures, rationale to routine finding suspicion, proba- additional of individualized much less cause, sample may ble must established be be before Anderson, S.E.2d at obtained.”

D. The Present Case consider whether constitutional chal King’s We first lenge to Act Maryland as-applied, Collection is or both. It facially, generally preferable is a court analyze whether statute constitutional under the more first, as-applied judicial narrow effi standard as matter ciency rather than facial first. analyzing challenge broader Fox, Bd. 492 U.S. 109 S.Ct. of Trs. (1989) (noting

L.Ed.2d that “for reasons both relating to the of courts and proper functioning efficiency, to their lawfulness particular application the law should first”).31 ordinarily be decided It is present clear case that King mounts both facial and Amend as-applied Fourth challenges. ment law, Maryland pre

Under common there is a strong sumption that Haining, statutes are constitutional. Koshko v. 404, (2007) 398 Md. 921 A.2d (citing, among other cases, Townsend, 666, 675, Ayres 324 Md. 598 A.2d (1991)). To succeed in as-applied challenge, constitutional King show that particular must “under [these] circumstances deprived Mitchell, ... right.” [he was] of a constitutional 273). F.3d (quoting Marcavage, at 406 609 F.3d at King’s as-applied challenge, To evaluate we the analyze circumstances, totality using Knights of the the balancing test that weighs King’s expectation of on privacy one hand and the other, state’s keeping interests the in mind that the “touch- is, Analyzing as-applied challenge apparently, the first hard not a analyzed and Marcavage, supra, fast rule. See which the facial chal- lenge "significantly required first because of the heavier” burden challenges anticipating speedy facial and a prong resolution of this of challenge. 609 F.3d constitutional at 273. Our analysis Fourth Amendment is reasonableness. stone” of government that the analysis precept is influenced also warrantless, suspicionless must a presumption overcome have are As other courts per searches se unreasonable. concluded, any at DNA effort as two we look collection is actual separate and searches. The first search discrete mouth is the King’s swab of the of and the second inside obtained, a to analysis step required thus Although courts follow produce profile. the DNA some as a and assessing technique quick in the buccal swab Mitchell of intrusion, shall painless ignore altogether gravity we from and of material biological a warrantless search collection overcoming of arrestee. The State bears the burden mere expectation of innocence his presumption the arrestee’s and of a searches before he is convicted biological be free from Raines, person we in once a has crime. As held qualifying felon, her adjudicated lawfully expectation his or been be “severely is and the State’s interest privacy of reduced” identifying, prevent- prevails monitoring, reintegrating, Here, however, expectation of ing by the felon. recidivism government’s purported of an arrestee renders privacy If of greatly. application in DNA collection reduced interests considering close when balancing results in a call test felons, our decision in Raines deeply convicted divided our tip surely must suggests, then the balance favor in the here. presumption belief innocence closely-held than that of a convict- King’s expectation privacy greater are felon, interests parolee, probationer, ed the State’s more reciprocally. attenuated Expectation Privacy

i. King’s expectation King personal, subjective have must protections apply. in order for Fourth Amendment Katz, at 588. See 88 S.Ct. L.Ed.2d U.S. noted, Raines opinion As Judge concurring Wilner’s infor personal “massive of samples deeply contain a amount 50, at The advances mation.” 383 Md. at A.2d State through search syllogism [the] the that “all was obtained King] identity his form of pairs [of the of 13 num- —in bers”; and, thus, no right is to anonymity; there the evidence is not presented suppressible. argument ignores at trial This plainly of that took implications place. the the search Maryland

That the the Collection Act restricts use of the material of biological change obtained does the nature Judge dissenting opinion the search. As Rendell noted her Mitchell, simply the statute of restric- upholding because analogous tions on use of the material would obtained be allowing government private the to seize medical records warrant, without a but restrict only portion their use to the the to identify patient. records that serve the This analogy addresses the State’s stance denying importance the or relevance of the initial intrusion physical pro- and the later arrestee, cessing genetic King, of King’s materials. as an had expectation privacy to be free from warrantless searches of his biological material and all the contained information within that material.

We do not wholly analogy fingerprints embrace between samples in Judge concurring advanced Raker’s opinion in by Raines and present State case. As noted, aptly fingerprints are a set of on physical ridges (or skin of person’s fingers that, exposed when to ink other medium) placed and the resultant imprint or elec paper records, tronic can usually determine and accurately per son’s identity matching physical to a characteristics DNA, known fingerprints. hand, set of on the other is contained our within cells and by swabbing is collected (or interior of a cheek blood draw otherwise obtained material). biological While physical intrusion of a buccal minimal, swab is deemed it remains distinct a finger from print. consider importance informed, We must that “[t]he detached and deliberate determinations of the issue whether or not to invade another’s in search of body guilt evidence of Schmerber, indisputable great.” U.S. S.Ct. 1835, 16 L.Ed.2d at 919. fingerprint information derived from a only is related physical characteristics and can used to identify person, be a sample, through A DNA obtained buccal

but no more. it much than a swab, unarguably per- within more contains DNA Act identity. Although Maryland the Collection son’s information we profile identifying only, the DNA to restricts eye map to the vast treasure that genetic can not turn a blind As Judge retained the remains the DNA State. Baines, opinion in concurring noted in his Wilner forcibly is genetic makeup history and person’s A entire file, government subject only and in a to seized maintained it not used and the improperly law’s direction that be the willfully if a of a misdemeanor conviction custodian prospect is it in an unauthorized manner. No sanction discloses non-willfully for if the information is disclosed provided manner, though essentially unauthorized the harm is the same. Baines, interest

383 Md. at 857 A.2d at 49. the State’s convicted overwhelmed regarding DNA collection from felons not that question considerations. do revisit or these We The greater result. Convicted are not at issue here. felons legitimate and the expectation of an arrestee lesser privacy bring of the State concerns about the dynamic in genetic application material to a different DNA balancing upheld test. Courts have collection by relying fingerprint-to- from arrestees have done so a collection has become analogy belief it procedure. may be just booking another routine While undergo elementary photographic finger- that arrestees collection, techniques has printing undergone neither these were the fin- scrutiny. definitive Fourth Amendment Even supra, tenuous, we less described gerprint-to-DNA analogy a quick heap exceptions so additional onto should be clearer, judicially-proven principle, constitutional without foundation. underestimates, conclusively seeking apply

The State case, in Baines to the power of a holding present our our analysis conviction was critical conviction. Raines’s there, “severely have a expecta- that convicted felons reduced mere arrestee privacy”; regarding tion of difference critical Although here. arrestees do not expecta- have all the tions of privacy enjoyed by the general public, the presump- tion of innocence bestows on greater them protections than felons, convicted parolees, probationers. judicial A deter- criminality, mination of conducted properly, changes drastical- ly an individual’s expectation reasonable of privacy. The expungement provisions of the Act recognize importance of a conviction in altering scope and reasonableness of the expectation of If privacy. an individual is not convicted if qualifying crime or the original charges are dropped, the sample DNA profile DNA destroyed. are The General Assembly recognized scope the full of the information collect- by ed DNA sampling rights of persons not convicted of qualifying crimes to keep this information private. This right should not be abrogated by the mere with charging criminal offense: the arrestee’s presumption of innocence remains.

The percentage of charged individuals with felonies that are convicted eventually is persuasive. According to data collect by ed the FBI in between 16 percent and 71 of individu charged als with a felony are convicted eventually (including guilty pleas), depending the crime.32 Bureau of Justice Statistics, Justice, U.S. Dept. of Sourcebook Criminal Jus of Statistics, (Kathleen tice tbl. ed.), 5.0002.2004 Maguire avail able at http://www.albany.edu/sourcebook/pdi/t500022004.pdf (last 2012). visited 20 Apr. The reasons for this disparity between arrests and convictions always are not apparent, but they illustrate potential amount of samples DNA would be collected and processed finding without a of guilt. agree

We with the Minnesota Court of in Appeals C.T.L. that “establishing probable cause to arrest a person is per The rates of conviction 100 arrests for various crimes were: 16 thefts, assault, for motor aggravated vehicle 25 for burglary, 44 for murder, robbery, for rape, 56 for 68 for drug trafficking. and 71 for Statistics, Justice, Bureau of Dept, Justice U.S. of Sourcebook Crimi- of Statistics, (Kathleen ed.), nal Justice tbl. Maguire 5.0002.2004 available (last http://www.albany.edu/sourcebook/pdi/t500022004.pdf visited 2012). Apr.

not, itself, to be by permit biological specimen sufficient to war- person obtaining taken from the without first search A for finding probable rant.” 722 N.W.2d at 490. of cause of DNA Maryland arrest on a crime violence under Act cannot as the cause for a probable Collection serve search an arrestee.

ii. Interest Government in Raines argument the State’s accepted This Court Act is to Maryland that the DNA Collection purpose individuals, than to collect evidence.33 While identify rather in maintaining true the context of a record may be (as inmates, felons, ease parolees, probationers was the the time Raines the Act at regarding scope case, not decided), King’s identification is present what and, in needed, for or most circum was used stances, likely with other arrestees. will not be case cases, view, Solving-cold ancillary is an the State’s benefit individual, proper identification of an determining the but it collection King only was the State served safety the same public his DNA. The here can claim State felons, convicted present addressing parol interests cases ees, prison safety or There is no interest in or probationers. (and Although recognized have no present. administration we reasonably legiti can that cold is a deny) solving one cases interest, warrantless, suspicionless a search government mate interest” “generalized solving can not in upheld be crimes. from authorizing

Courts statutes collection upholding on an definition of “identification” rely expansive arrestees crime-solving case” as a sweep-up government purpose “cold courts in other con- recognized approved previously by identity expanded encompasses texts. This definition Raines, case, express present We as we 33. note in the did in that purposes analyze genetic in an of the statute are to material to assist crime, remains, identify investigation identify official human individuals, purposes. Md. missing or for research and administrative (2003, Art., Safety Repl.Vol.), § Code Pub. 2-505. name, birth, address, traditional date of charac- physical teristics, done,” but also “what that has person including past known criminal record and as-yet-unsolved his/her Haskell, crimes. See F.Supp.2d Although here, does not directly argument State advance this it is implicated by heavy the State’s reliance on forms of “identifi- (or be) evidence, cation” may may as the case have been previous compared collected from crimes and to the “identifi- cation” of an an argument arrestee. Such stretches the bounds of reasonableness under our of proper view Fourth in analysis. accept light Amendment We decline to it of its on an in impacts expectations arrestee’s his or her material, genetic properly unless that material is deemed abandoned.

The State that it argues legitimate purpose has identi- fying accurately argument arrestees. this Accepting arguen- do, presented the State no evidence that it any problems had whatsoever identifying accurately King through traditional booking King given routines. had been arrested previously, fingerprint samples, earlier and been photographed. There is King no claim that presented false identification when arrest- ed or had altered his fingerprints appearance any way might increase the legitimate requiring State’s an additional form identification to be certain who it had arrested. The FBI’s fingerprint database is a reliable method (or of) for law enforcement to confirm identify the identities promptly arrestees and accurately. When an arrestee’s fin- (which gerprints database, are uploaded to the the results include a photograph, fingerprints, history) and a criminal are returned system only within minutes. This contains not crimi- records, nal but also fingerprints uploaded voluntarily by citizens. This database is essential to law enforcement during booking hand, routine of arrestees. On the other the FBI’s information, DNA database contains no personal identifying names, dates, numbers, no no security birth no social and no criminal histories. A “hit” take may months to return. The sample DNA is not analyzed until after the first scheduled arraignment profile date. The must uploaded be and the laboratory database searched. The must return the DNA arises, officer is a law enforcement a “hit” When profile. information. notified, the additional request who must “hit” was re- 2009. The April arrested on 10 was King King At this had been point, August turned on There is no evidence other methods. accurately via identified already con- or clarified his DNA “hit” bolstered that identity. firmed reasonable interests are made less purported

The State’s has been person can wait until a that DNA collection the fact discussed convicted, the threats to avoiding all of thus (as far not over time change do profiles in this opinion. is no reasonable so there present), “knows” as science gowill unre- or future crimes past that unsolved argument warrantless, will not allow necessarily. simply We solved materials without show- biological searches suspicionless using “tradi- possible that accurate identification ing tional” methods. conviction, there will be DNA is required

In cases where cause for provide probable other evidence likely substantial likely not seem Unfortunately, that does a search warrant. charge that King’s 2009 assault regards case. As present compelled sample, initial rise to collection of his gave crimes. qualifying all of the prosequi to nolle proceeded State assault, which is not second-degree only convicted King was § crime 2-504.34 under qualifying Act, a challenge facial to the King’s regards As of a statute constitutionality challenging facially party under which no set of circumstances exist “must establish that Koshko, 426, 921 A.2d at 398 Md. at Act would be valid.” 739, 745, Salerno, States v. U.S. United (quoting (1987)). Salerno, 2095, 2100, 95 L.Ed.2d S.Ct. dictum, circum- out, the “no set of Court set Supreme pros choice to nol these of the State’s 34. Because of the combination case, King’s present compulsion, remand of the charges and the qualifying granted, King can on the suppress be be tried motion to may be obtained unlikely a new DNA charges and it is the Act. under

601 facial constitutional broadly to decide that is used test stances” however, between fa over-arching distinction challenges; Salerno, has in the wake of challenges, as-applied and cial See, Kreit, Making Sense e.g., Alex less than clear. been Bill Mary& Rts. Challenges, 18 Wm. As-Applied Facial (2010). Court, has not 657, post-Salerno, Supreme 658 J. test to facial of circumstances” consistently the “no set applied Morales, 41, 55, n. v. U.S. City Chicago See challenges. (1999) 67, 79, 1858, 22, n. 22 1849, n. 144 L.Ed.2d 22, 119 S.Ct. (“To stan articulated clear consistently we have the extent formulation, it is not the Salerno challenges, for facial dard any decision this been the decisive factor which has never 305, Miller, 318, ...”); 117 S.Ct. v. 520 U.S. Chandler Court (1997) 513, a facial 1295, 1303, (sustaining 137 L.Ed.2d drug political tests for Georgia requiring statute attack on standard); candidates, Craw mentioning the Salerno without 181, 202, 128 Bd., 553 U.S. S.Ct. Cnty. v. Marion Election ford (2008) 574, “a 1610, 1623, (concluding that 170 L.Ed.2d 590-91 plainly has a challenge must fail where the statute facial Washington Grange State legitimate sweep”) (quoting 442, 449, 128 Party, 552 U.S. Washington Republican State (internal (2008) 1184, 1190, 151, quota 170 L.Ed.2d S.Ct. omitted)). application the unclear of Salerno Despite tions courts, according the test here to among apply the federal we King’s challenge conclude that facial Koshko. We conceivable, because there are albeit somewhat statute fails may have altered his or unlikely, scenarios where an arrestee or (making her or facial features difficult doubtful fingerprints fingerprints through comparison identification earlier record) may and the State secure the use of photographs Act, without a warrant under the as a means to samples, arrestee, identify investigatory purposes, any but not for event.35 DNA swab obtained posits King’s

The State that because suppressible. of his evidence is not only identity evidence may require possible 35. The scenarios where law enforcement identify bring samples an arrestee to mind the 1997 film Face/Off change hypothetical transplant used to identities. where a face was Supreme holdings runs counter to the argument This Court’s 817, 105 at Hayes, 470 U.S. at S.Ct. L.Ed.2d Davis, 394 U.S. at 89 S.Ct. L.Ed.2d at illegally which concluded that obtained were fingerprints identity under the Fourth Amendment. suppressible King’s not the as for his probable evidence served cause license, A grand jury rape fingerprint, indictment. driver’s card, all photograph, security accepted generally or social identification, not in place forms of could have stood King’s sample grand jury. pre DNA before the What was jury sented to the was a match grand biological between King’s evidence collected from 2009 buccal swab and the evidence collected a sexual assault forensic exam from during This match not rape biological analogous the 2003 victim. is address, to a person’s Special name or which the Court of State, in Appeals suppressible held not to be Gibson v. 138 (2001). 399, 414, 536, Md.App. Assuming 771 A.2d 545 ar guendo present analogy, and DNA fingerprints apt they are suppressible illegally. both evidence when obtained

As we conclude that the Maryland Collection Act, arrestee, unconstitutional, applied King as an was King’s April illegally, 2009 DNA was obtained sample, we must conclude that the second DNA obtained on 2009, pursuant proba 18 November to a court order based on gained solely ble cause from the “hit” from the first compelled sample, also as a “fruit of the suppressible poisonous poisonous tree.” The “fruit of the tree” doctrine excludes in evidence obtained violation of the Fourth Amendment. States, 471, 488, 407, Wong Sun v. United 371 U.S. 83 S.Ct. 417, State, 441, (1963); 261, Myers 9 L.Ed.2d v. 395 Md. (2006). 1048, 909 A.2d Under the “fruit of the doctrine, poisonous tree” the defendant bears the burden of 1) 2) showing primary illegality “the cause and effect relationship illegality between the and the primary evidence issue, wit, was, indeed, that the evidence the identifiable State, fruit of that tree.” particular Cox Md. 651- (2011) Gibson, (citing 28 A.3d 138 Md.App. 539). Here, original 771 A.2d we have determined that the illegal. relationship DNA collection was cause-and-effect buccal King’s original between swab and the court-ordered in any way. second buccal swab is attenuated The first the sole provided probable King’s buccal swab cause for first- degree rape grand jury indictment. There was no other linking King rape. evidence the 2003 unsolved it not Were for the obtained illegally King’s buccal swab after assault arrest, there would be no second DNA sample which could in King’s have been used as evidence trial for the charges seven, supra. enumerated footnote The DNA evidence presented at trial a fruit poisonous tree. THE

JUDGMENT OF CIRCUIT FOR COURT WICOMI- CO COUNTY REVERSED. REMANDED CASE TO THAT COURT FOR FURTHER PROCEEDINGS CONSIS- TENT WITH THIS OPINION. COSTS TO BE PAID BY THE STATE. WILNER, JJ.,

BARBERA and dissent. BARBERA, J., WILNER, J., dissenting, which joins. I dissent. The Court today police decides that the violated King’s Fourth Amendment to right be free from unreasonable searches, when the police, arresting King after based probable crime, cause that he had committed a violent took a DNA sample swab, via a pursuant buccal Maryland Act, (2003, DNA Collection Maryland Code 2011 RepLVol.), 2-504(a)(3) (Act). § Safety the Public majority Article The arrives at this by decision overinflating arrestee’s interest in privacy and underestimating the State’s interest in collect- DNA, so, ing arrestee and in doing plays fast and loose with the well-recognized test for determining constitutionality of warrantless searches.

It is not disputed there is no doubt—that —indeed “search,” buccal swab purposes was of the Fourth Ass’n, Amendment.1 See Skinner v. Ry. Labor Executives undisputed It also is present that law enforcement officials in the case every statutory regulatory followed of the one and mandates the Act testing King’s making when use of its results. 604 (1989). 1402, 103 The 602, 616, 109 L.Ed.2d 639 S.Ct.

489 U.S. then, complied search is whether this warrantless question, Amendment, the touchstone of the Fourth with the strictures Knights, v. 534 “reasonableness.” United States for which is (2001); 112, 587, 497 accord 118, 122 151 L.Ed.2d S.Ct. U.S. (2009). 877, State, 415, 427, 884 975 A.2d v. 409 Md. Wilson to the reasonableness ascertaining test for the answer Terry long ago, Court adopted by Supreme is one inquiry 20-21, 1868, 889 Ohio, 1, 88 20 L.Ed.2d S.Ct. v. U.S. since, v. (1968), ever see Anderson followed this Court Wilson, 281, (1978); 701, 704-05, State, 387 A.2d 282 Md. 427, 975 A.2d at 884. 409 Md. at is test, search given that whether warrantless Under of the interests requires balancing reasonable inter- government against legitimate individual searched 547 U.S. California, Samson by the search. promoted ests (2006); 2193, 843, 848, 165 L.Ed.2d 250 accord 126 S.Ct. Wilson, 427, at 884. The test has been at 975 A.2d 409 Md. in situations akin persons searches of uphold employed See, Samson, 126 S.Ct. e.g., U.S. the case at bar. warrantless, suspicionless that a officer’s (holding police under the Fourth Amend- reasonable parolee of a search (2004) Raines, A.2d ment); 383 Md. State v. “a DNA from collection of the warrantless (holding because was reasonable persons” of convicted group certain inmate, a with a person on the minimal intrusion physical “the legiti- outweighed by privacy, expectation diminished involved identifying persons governmental mate convicted”); crimes, falsely those including vindicating with (holding 122 S.Ct. 587 534 U.S. Knights, see also reason- at stake rendered interests balancing competing search, suspi- reasonable supported by the warrantless able home). cion, a probationer’s is the balancing test recognizes majority reasonableness, and hence to determine

appropriate test Md. at issue here. 425 constitutionality, of the search for the 562-63, pres- both Regrettably, 556-57. A.3d it, majority’s like all other future cases ent case and to the circumstances here application of the test could be wrong. Proper analysis competing privacy more of the and the error. governmental exposes interests stake To repeat, depends “reasonableness” a balance between governmental right per- interests and the individual’s security arbitrary sonal free from interference lawby officers. first, assessing, I King, interests stake for bear mind privacy implicated that consideration of the interest identifying the buccal swab involves both the nature of the enjoyed by King at the time of the swab and the character of the intrusion itself. See Bell v. Wolfish, 520, 559, (1979) (“In U.S. 99 S.Ct. 60 L.Ed.2d 447 each requires case it balancing particular the need for the against rights search the invasion of personal that the search entails. Courts must consider the scope particular intrusion, conducted, the manner which it is the justification it, conducted.”). for initiating place and the in which it is The majority misstates the degree King’s privacy which impinged by his arrest. The majority juxtaposes King’s felon, status as an arrestee with of a convicted probation- er, or parolee, and then declares that King’s privacy interest is “greater” persons than that of those categories because he enjoys a presumption 593-95, of innocence. 425 Md. at A.3d at 575-76. Certainly, up conviction, to the moment of King enjoyed the presumption of innocence in connection with charged. the crimes King’s Yet status as a presumed-inno- cent man has little to do with the expectation reduced arrest, privacy attendant to his processing, pre-trial incar- (even time). ceration if for but a short For purposes of the Fourth analysis, Amendment King’s privacy expectation at the time felon, of the cheek far swab was more like a convicted probationer, parolee than an uncharged individual. To make I point, need mention only some of the intrusions on personal privacy any that attend arrest. be,

The lawful were, intrusions that could and likely visited upon King began at or soon after the moment of Any arrest. lawfully subject immediate, arrestee is to an head-to-toe 606 in belongings his personal any and person

search of his Robinson, 414 v. States at the time. See United possession (1973). 467, 427 At the 218, 235, L.Ed.2d 94 S.Ct. 38 U.S. as a matter of station-house, subjected can the arrestee be (and suspicion) the need for individualized without protocol is for a minor if the arrest even strip-search, a warrantless U.S. —, 132 566 Cnty. Burlington, Florence v. offense. of 2012). (2012) (Filed 2, April L.Ed.2d 566 S.Ct. Bell, body (approving 99 S.Ct. 1861 441 U.S. See also detainees). if strip- Even pretrial of cavity searches observation, while searched, subject can the arrestee be arrestee, officials; undress, and by police stages various arrestees, subject can be or near other if in a cell with placed officials) (or using while by police them to similar observation (7th 144, 145, Phelan, 69 F.3d v. the toilet. See Johnson Cir.1995). arrestee, has a short, including King, any expectation. privacy diminished grossly also suffers analysis Amendment majority’s Fourth upon priva- of the intrusion mislabeling the character from its swab, the cheek and by occasioned bodily integrity and cy impinged to which the arrestee’s degree DNA collection thereby. the information obtained a result of a cotton swab rotating and by rubbing is achieved Maryland in- procedure cheeks. This an individual’s on the inside of the mouth for few instrument inside volves a cotton placing seconds, enough pressure the cheek with contacting and technique has The buccal swab biological sample. remove seizures,” of all the least intrusive “perhaps described as been Re- Bogeyman Surveillance” —The Epstein, “Genetic Jules Tech 2009 U. 111.J.L. Investigations, to Familial sponse (2009) (hereafter “relatively and a “Epstein”), Pol’y& lowered obtaining “pose[s] DNA” that noninvasive means H. Amy subject laboratory personnel,” for both the risk Buccal Walker, ah, Swabs et Collection Genomic Assays, Biomarker Reaction-Based Polymerase Chain (1999). 517, Perspective Health 107 Envtl. drawing invasive than physically is less A swab buccal Schmerber blood, Court addressed Supreme which the 757, 771-72, 1826, 16 California, 384 U.S. 86 S.Ct. L.Ed.2d 908 (1966). The held in that Court case that the warrantless arrestee, drawing of a blood from an at the direction of officer, police did not violate the Fourth prohi Amendment bition against unreasonable searches. The Court described drawing “commonplace” “involving] blood as virtu risk, trauma, ally pain.” no Id. at S.Ct. Since then, Supreme the Court the has characterized intrusiveness blood-drawing of “not ... an unduly imposition as extensive on an individual’s personal privacy bodily integrity,” Win Lee, 762, 1611, 753, ston v. 470 U.S. S.Ct. 84 L.Ed.2d 662 Skinner, (1985); 625, significant,” and “not 489 U.S. at S.Ct. 1402. If the subcutaneous removal of blood from a person’s presents only marginal veins a intrusion into that interest, person’s privacy the insertion of a cotton foHiori swab into a mouth person’s is less of an intrusion and fairly process characterized as de minimis. Unlike the of drawing blood, performing a buccal swab does not require skin to be hard, pierced, object or a foreign to be situated inside of the body. short, I agree with the of reasoning the United States Harris,

Court of in Appeals the Ninth Circuit Haskell v. (9th Cir.2012). 669 F.3d The court Haskell upheld a DNA permits collection statute that buccal swabs of that, all adults explaining arrested for felonies the physical extraction of DNA using buccal swab collec- tion technique is little more than a minor inconvenience to arrestees, felony who have expectations priva- diminished of Moreover, cy. substantially intrusive, it is physi- less both cally and emotionally, many than of the other types of approved routinely intrusions that are visited upon arres- tees. Mitchell, (3rd

accord United States v. 652 F.3d Cir.2011) (noting, upholding a case the constitutionality of a federal statute that arrestees, authorizes DNA collection from that “the by intrusion occasioned the act of collecting the DNA sample is minimal and weigh does not significantly [the favor”). arrestee’s] information from

The character of the obtained amount and of cells to the analysis pertinent the cheek is also too, misses the majority’s analysis Here analysis. material biological mark. The Act authorizes the collection majority genome. an individual’s entire that contains ... point, reasoning “[a] seizes this more than a identi- unarguably person’s contains within much 42 A.3d and in is unlike way 425 Md. at ty[,]” ... a identi- fingerprint, only person’s which “can determine by physical fingerprint] [of characteristics ty matching reason, this fingerprints,” a known id. For notwith- set 2-505(b) only § Act standing that authorizes identification, analysis majority for the purpose eye genetic map the vast treasure unable “turn a blind by DNA sample that remains in the retained the State.” at 577. Md. at 42 A.3d more. I con- disagree interpret majority’s

I could not plaintiffs those in Has- expressed cerns as much like kell, images the court supra, “evok[ing] which described Brother’ our intimate oppressive ‘Big cataloging most I, Circuit, at 1059. like the Ninth believe traits.” F.3d Act troubling.” “the is far less reality See id. genetic the of categorically prohibits plundering “the vast by made DNA incidentally treasure available map” a fine of years imprisonment collection. to five of Up and/or 2-512(e) Act, § who $5,000, anyone to awaits up see “willfully a DNA for information that does sample test[s] this specified relate the identification individuals 2-512(c) subtitle,” potential punish- § the Act. The same a DNA anyone ments await who discloses information from collected genetic or discloses information from the profile, 2-512(a) short, § the See Act. In DNA itself. forecloses, by Act all which exception, without avenues obtain treasure genetic pirate exploit “genetic can sample. DNA map” contained within collected that the important Even more assessment is DNA are disclose samples tested cannot procedure which 29.05.01.09(A) effec- genetic intimate information. COMAR tively testing restricts the of DNA to the 13 loci specified by the FBI and “in specific non-coding; CODIS. These loci are words, genetic other material at these is not locations known to determine a human attribute height, weight, such as susceptibility particular to a Epstein, supra disease.” recognized 143. We have nature of non-coding these 13 loci, loci, in “junk” sometimes referred to as Williamson v. State, 521, 542-43, (2010). 413 Md. 993 A.2d These 13 loci exist in a “hypervariable region” of the strand. “Outside of the hypervariable regions, genomes of two randomly chosen individuals exhibit few differences. con- trast, within the hypervariable regions, two chosen randomly individuals will exhibit a number of differences.” Julian Adams, Courtroom, Nuclear and Mitochondrial DNA in the (2005). Pol’y Therefore, 13 J.L. & the loci cannot reveal any genetic arrestee, information about other than that the arrestee is different identifiably from other members of the human race. And in showing that an arrestee’s DNA is identifiably DNA, different from others’ the loci can potential- ly show that an arrestee’s DNA is identical to strands of DNA source, collected from an unknown i.e. a crime scene. See Raines, (“the 383 Md. at only A.2d at 33 information obtained from the DNA linked to the pursuant individual tested.”). Act is the identity of the person being

Though surely a far sophisticated more and “new” means identification than fingerprints, DNA analysis, when used solely for purposes is, end, identification in the no different. Both are limited markers that can reveal only identification information. Judge As Raker aptly pointed out in her concur- ring opinion Raines:

DNA type need be no more informative than an ordinary fingerprint----The “profile” of an individual’s DNA mole- cule that is stored in a properly constructed DNA identifica- (like tion database the FBI’s System Combined DNA Index (CODIS)) is a series of numbers. The numbers have no meaning except representation as a of molecular sequences at DNA loci that are not indicative of an person- individual’s al propensities. sense, traits or In this the CODIS 13-STR though security a much like social very is

“profile” number — chance, by the federal assigned by and is longer it is government. D. J., (Raker, concurring) (quoting 45-46 A.2d at

Id. at Databases, Legality, Smith, DNA M. Kaye and Identification Coverage, Populatiom-Wide and the Case Legitimacy, for (2003)). num- way, In this the 413, 431-32 L.Rev. Wis. ridges finger- the identical to are profile of a DNA bers is, majority from both derived information print —the and can be characteristics concedes, physical only “related 595-96, no more.” Md. but identify person, used to at 576-77. A.3d the constitu- impliedly, albeit given, has Supreme Court Hayes See procedure. fingerprinting for the “go tional ahead” L.Ed.2d 705 Florida, 105 S.Ct. 470 U.S. that for the view (1985) (“There in our cases support is thus purpose for the permit would seizures Amendment the Fourth that suspicion if there is reasonable fingerprinting, act, a reasonable if there is a criminal has committed suspect negate establish or will believing fingerprinting that basis crime, procedure and if the connection with the suspect’s finger- similarity Given dispatch.”). with is carried out Act, there by collection authorized and the DNA printing privacy a weighty Act implicates little concern interest. informa in the

Furthermore, any has interest if an arrestee DNA, interest privacy it is from collected tion extracted the 13 loci. Given revealed information the identification in privacy has an arrestee expectation already-diminished of interest only have a modicum arrestee can generally, Raines, 383 Md. at all. any if interest identity privacy, Cf. (“As such, and other incarcerated appellee at 33 857 A.2d in their little, any, expectation if have individuals identity.”). Amendment reasonableness the Fourth the other side of

On in the use is the State’s equation balancing here I need not discuss evidence. of DNA retention 611 stake, of all the significance government although interests arrestees, there are at three: identifying solving past least crimes, Haskell, exonerating innocent individuals. See interests); Mitchell, (discussing 669 F.3d at 1062-65 those (same). F.3d at 413-15 emphasized

We in Raines that identifying perpetrators of governmental crimes is a “compelling interest.” 383 Md. at 21, 857 A.2d at In responding strong to this law enforce- interest, ment majority eludes faithful application on the subject “identity,” by case law carefully circumscrib- ing meaning. majority its that “identity” reasons includes name, address, only an individual’s age, physical charac- teristics, but does not person include “what has done.” [the] 598-99, Md. A.3d at 578. Based reasoning, on this the majority notes that the can government legiti- claim no mate in identifying interest an individual for the purpose of uncovering past premise majori- misdeeds. Id. From that ty holds that the Act is unconstitutional applied King King’s because DNA collection was superfluous: the identifi- cation interest already was served the fingerprinting and 599-601, photographing King. 425 Md. at 42 A.3d at 579-80. On the majority’s point, first in the nothing supports law majority’s restrictive identity. definition of In the context of Amendment, the Fourth the Supreme Court has made clear that law enforcement’s in identity extends to knowing person whether a has been involved in crime. See Hiibel v. Ct., 177, 186, Sixth Judicial Dist. U.S. 124 S.Ct. (2004)

L.Ed.2d 292 (“Obtaining suspect’s name in the course of a Terry stop serves important government interests. Knowledge identity may inform an officer that a suspect offense, wanted for another or has a record of violence or disorder.”). mental The majority’s definition raises the rhe question: “Why torical law enforcement would want to know a name, if person’s not to know whether that person is linked to crime?” holds that majority essentially point, the second

On traditional methods of identifi displace cannot DNA collection are intrusive and traditional methods less cation because those 600-01, 42 at 579-80. The 425 Md. at A.3d effectively. in use character for the Ninth Circuit Haskell Appeals Court of to Fourth reasoning approach” as “a Luddite ized such “Nothing at 1063. 669 F.3d interpretation. Amendment ... prevent us to the Government compels the Constitution identification] effective tool using highly [of from this new and Moreover, (or older ones.” Id. supplement) to replace refusing] in “repeatedly clear Supreme Court has been can be practicable intrusive’ search only declare that the ‘least City Amendment.” Ontario v. under the Fourth reasonable — 2619, 2632, U.S. —, —, 130 S.Ct. 177 L.Ed.2d Quon, Acton, (2010) Dist. (quoting Vernonia School 47J (1995)). Final 646, 663, 132 L.Ed.2d 115 S.Ct. U.S. Raines, in us to is for recognized “[i]t this Court ly, as one method of identification over advantages weigh (quoting at 30 Jones v. Md. at 857 A.2d another.” 383 (4th Cir.1992)). 962 F.2d Murray, government’s strong assuming Even only crime interest at stake identifying perpetrators (which not), interest, when balanced it is this case expectation diminished against significantly arrestee, yields, my of an taking a buccal swab attendant to in this case. view, question presented answer to the an obvious material from which inner cheek to extract King’s The swab of identify him is a reasonable loci are tested to “junk” 13 DNA I the Fourth Amendment. search, permitted by therefore of the Circuit Court judgment affirm the therefore would County. Wicomico joins that he authorizes me to state

Judge WILNER views here. expressed

Case Details

Case Name: King v. State

Court Name: Court of Appeals of Maryland

Date Published: Apr 24, 2012

Citation: 42 A.3d 549

Docket Number: 68, September Term, 2011

Court Abbreviation: Md.