License, Registration, Cheek Swab: DNA Testing and the Divided Court

Midway through the oral argument in Maryland v. King, Justice Alito spontaneously interjected: "[B]y the way, I think this is perhaps the most important criminal procedure case that this Court has heard in decades." (1) The juxtaposition between the breeziness of his comment and the solemnity of its content befit the case, which is best characterized as a sleeper in a Term overshadowed by monumental rulings on gay marriage, voting rights, and affirmative action. What looked on its face like just another Fourth Amendment dispute--with civil libertarians on one side and law enforcement on the other--garnered no special attention. But King is no ordinary Fourth Amendment case. At first glance, King simply upheld the Fourth Amendment constitutionality of a state statute authorizing the collection of DNA from arrestees. But the opinion in the case represents a watershed moment in the evolution of Fourth Amendment doctrine and an important signal for the future of biotechnologies and policing. This Comment places King into context from three different vantage points, each one step removed. Specifically, the three Parts below address the significance of the opinion: for DNA collection from arrestees, for forensic DNA practices more generally, and for the Fourth Amendment. Part I briefly summarizes the opinions in the case and may be skipped by those familiar with them. Part II reads between the lines of the majority opinion, in light of the greater constellation of facts and claims placed before the Court, to underscore the significance of what was not said about the constitutionality of arrestee DNA collection. Part III considers King as it exemplifies the judicial response to forensic DNA typing more generally, and imagines its precedential value in future biometric cases. Part IV situates King in the broader landscape of the Court's recent Fourth Amendment jurisprudence and analyzes its insights for the evolution of the field as a whole. I. THE KING OPINIONS In 2009, Maryland authorities arrested Alonzo King after a witness identified him as the man who had pointed a shotgun at a group in which the witness was standing. (2) He was charged with first- and second-degree assault. (3) Under a Maryland law passed in 2008, police may collect a DNA sample from any person arrested for a crime of violence or burglary. (4) Because the first-degree assault charge qualified as a crime of violence, officials sampled King's DNA. Ultimately, King entered an Alford plea to the charge of second-degree assault, (5) a misdemeanor offense that on its own would not have qualified him for inclusion in a DNA database under Maryland law governing arrestees or convicted persons. (6) Law enforcement took the sample and sent it to a private vendor, who analyzed it four months later, whereupon King's DNA profile was uploaded to the state's DNA database. (7) A routine search in the database matched the profile to that taken from an unsolved sexual assault from 2003, and King was arrested and charged with that offense. (8) He moved to suppress the evidence of the DNA match, arguing that the suspicionless collection of DNA from a person merely charged with an offense violated the Fourth Amendment. (9) The trial court denied his motion, but the Maryland Court of Appeals reversed, based in part on the "presumption that warrantless, suspicionless searches are per se unreasonable." (10) Maryland petitioned the Supreme Court for certiorari and the Chief Justice, acting as circuit justice, entered a stay of the judgment, noting the likelihood of success on the merits and the conflict in the lower courts on this issue. (11) Although the certiorari grant received only moderate attention from the general public, it did not escape the notice of interested parties. Over twenty amicus curiae briefs were filed, split roughly evenly between petitioner and respondent. (12) Maryland's supporters included all fifty states in a rare showing of total consensus, a variety of law enforcement and victims' rights organizations, and a consortium of businesses that sell DNA instrumentation and technology. …