Unwarranted DNA Sampling: The Legacy of Maryland v. King

DNA forensics is about information, privacy and the presumption of innocence. It has become the determinant for identification, solving cold cases and exonerating the innocent. At its core, it is an inestimable library of personal data. Thus, courts and legislatures have been attempting to balance the interests of the individual in protecting their genetic information with the usefulness and necessity of that same data for criminal investigation.

In Maryland v. King, 133 S.Ct. 1958 (2013), the U.S. Supreme Court legitimized warrantless DNA sampling from felony arrestees as a booking procedure.1 In fact, they proclaimed genetic identification the new fingerprint.2 Still, the information that can potentially be gleaned from a person’s genome is incalculable compared with the finite data revealed by traditional biometrics.3 In the wake of this decision, the states will have the opportunity to reconsider their DNA collection laws,4 whether to amend them or for those without to enact them,5 under the Federal and their respective state constitutions.6 At the same time, the Court’s decision has enlivened the debate over the end result of arrestee sampling,7 i.e., the expansion of forensic databases and the applications for the use of this data.8 And it should be noted that any DNA or forensic database is a composite of intertwined informational and legal values that pose competing and conflicting questions about the analytics (accuracy, reliability and validity) of the data and the lawfulness (constitutionality) of its gathering.

This article collects recent notable decisions and scholarship appearing in the aftermath of Maryland v. King.9


Maryland v. King, 133 S.Ct. 1958 (2013)
“In light of the context of a valid arrest supported by probable cause respondent’s expectations of privacy were not offended by the minor intrusion of a brief swab of his cheeks. By contrast, that same context of arrest gives rise to significant state interests in identifying respondent not only so that the proper name can be attached to his charges but also so that the criminal justice system can make informed decisions concerning pretrial custody. Upon these considerations the Court concludes that DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure. When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.”

Haskell v. Harris, No. 10-15152 (9th Cir. March 20, 2014)
“California law requires that all persons arrested for or charged with any felony or attempted felony submit DNA samples for inclusion in law enforcement databases. Cal. Penal Code S 296(a)(2), (4). Plaintiffs brought a class action under 42 U.S.C. S 1983, alleging that the law is unconstitutional on its face and as applied to the certified class, which includes “[a]ll persons who are, or will be, compelled to submit to the search and seizure of their body tissue and DNA under California Penal Code S 296(a)(2)(C) solely by reason of the fact that they have been arrested for, or charged with, a felony offense by California state or local officials.” The district court denied a motion for a preliminary injunction, Haskell v. Brown, 677 F. Supp. 2d 1187, 1189-90 (N.D. Cal. 2009), and plaintiffs appealed, 28 U.S.C. S 1292(a)(1).
Plaintiffs’ facial and as-applied challenges turn on essentially the same question: Is California’s DNA collection scheme constitutional as applied to anyone “arrested for, or charged with, a felony offense by California state or local officials?” After Maryland v. King, 133 S.Ct. 1958 (2013), the answer is clearly yes. Plaintiffs’ counsel conceded as much at oral argument. Given that concession, plaintiffs cannot show that the district court abused its discretion in denying a preliminary injunction that would apply to the entire class. See Winter, 555 U.S. at 20; Alliance for the Wild Rockies, 632 F.3d at 1131.
Plaintiffs ask us to enter a preliminary injunction applicable only to a smaller class consisting of individuals arrested for certain felonies that are not, in plaintiffs’ view, covered by Maryland v. King. But we are a court of review, not first view: We are limited to deciding whether the district court abused its discretion in denying the injunction plaintiffs sought. See Bull v. City & Cnty. of S.F., 595 F.3d 964, 967-68 (9th Cir. 2010) (en banc). If plaintiffs believe they’re entitled to a preliminary injunction as to a smaller class, they are free to seek it from the district court and we will review it if and when it is presented to us.”

Pretzantzin v. Holder, 725 F.3d 161 (2nd Cir. 2013)
“Still, we find [Maryland v.] King’s description of identity-related evidence telling. In finding that “name alone cannot address [the government’s] interest in identity,” the Court noted that other relevant forms of identification include fingerprints, “name, alias, date and time of previous convictions and the name then used, photograph, Social Security number, or [DNA] profile.” Id. at 1972. This broad concept of “identity,” when read in conjunction with the Government’s proffered interpretation of Lopez-Mendoza’s identity statement as precluding the suppression of all identity-related evidence, would render the inventory or booking search exception to the Fourth Amendment’s warrant requirement superfluous. After all, if DNA is identity-related evidence, and Lopez-Mendoza precludes the suppression of all identity-related evidence, then why bother to couch Maryland’s DNA Collection Act within the booking exception at all? And if identity-related evidence includes fingerprints, and Lopez-Mendoza precludes the suppression of all identity-related evidence, then what are we to make of controlling precedent mandating the suppression of this insuppressible evidence? See, e.g., Hayes v. Florida, 470 U.S. 811, 816-17, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985) (holding fingerprints properly suppressed when defendant was arrested without probable cause, taken to police station without consent, and detained and fingerprinted for investigatory purposes); Taylor v. Alabama, 457 U.S. 687, 692-93, 102 S.Ct. 2664, 73 L.Ed.2d 314 (1982) (concluding that “[t]he initial fingerprints [] were themselves the fruit of petitioner’s illegal arrest….” (citation omitted)); accord Davis v. Mississippi, 394 U.S. 721, 727, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). Given such peculiar consequences, it is clear that we cannot read Lopez-Mendoza’s identity statement as establishing a rule of evidence.”

United States v. Kriesel, 720 F.3d 1137 (9th Cir. 2013)
“Kriesel argued to the district court that the government had no legitimate reason for retaining the blood sample — which of course has within it not only the limited information the government has analyzed for his DNA profile, but his entire unanalyzed genome. The district court ruled the government had a legitimate purpose in retaining the blood samples that generate the CODIS profiles in order to ensure that the matches to forensic evidence, identified through CODIS searches, are accurate. The court found no reason at this time to believe the government would use the blood for other purposes, many of which are already prohibited by statute. The district court therefore granted judgment to the government, and we affirm on a similar basis.”

King v. State, 434 Md. 472, 76 A.3d 1035 (2013)
“Because “the exclusionary rule is not a remedy [the courts] apply lightly.” Sanchez-Llamas v. Oregon, 548 U.S. 331, 347, 126 S.Ct. 2669, 2680, 165 L.Ed.2d 557 (2006), and the Legislature made no indication that suppression is the proper remedy for a violation of the DNA Collection Act, we decline to find any suppression remedy here. Thus, even if a State violation of the Act of the caliber alleged here had been proven, which we find no evidence of, the trial court denied properly King’s motion to suppress the DNA database match and there is no reversible error.”


Brief of Genetics, Genomics and Forensic Science Researchers in Maryland v. King, 54 Jurimetrics J. 43 (2013)
“In Maryland v. King, 133 S.Ct. 1958 (2013), the Supreme Court held that Maryland’s statute requiring DNA samples from individuals arrested for crimes of violence or burglary did not violate the Fourth Amendment. One factor in the Court’s analysis is the extent to which the forensic DNA profiles invade medical privacy. The majority stated that “[t]he argument that the testing at issue in this case reveals any private medical information at all is open to dispute.” With respect to this dispute, eight scientists and two law professors filed a brief in support of neither party seeking to explain what current science tells us about the information conveyed by the thirteen short tandem repeats known as “CODIS markers,” the variations in DNA generally used in the United States for forensic identification. This publication consists of the core of the brief along with a foreword about the continuing legal significance of the issue.”

Warrantless, Pre-Arrest DNA Testing and a Suspect’s Right to Refuse: Amicus Brief filed in State of Maine v. Spencer Glover (Maine Supreme Judicial Court 2014), SSRN (2013)
“When law enforcement seeks to obtain a warrantless, pre-arrest DNA sample from an individual, that individual has the right to say “No.” If silence is to become a “badge of guilt,” then the right to silence — under the United States and Maine Constitutions — might become a thing of the past. Allowing jurors to infer consciousness of guilt from a pre-arrest DNA sample violates the Fourth Amendment to the United States and Maine Constitutions.”


Dethroning King: Why the Warrantless DNA Testing of Arrestees Should Be Prohibited Under State Constitutions, SSRN (2013)
“In Maryland v. King, the Supreme Court ruled that a state statute mandating the warrantless DNA testing of all people arrested for violent felonies did not violate the Fourth Amendment of the Constitution. The 5-4 majority held that the government had a legitimate interest in the identification of arrestees, which overrode the arrestees’ reduced expectations of privacy. Despite the Court’s contention, arrestees are presumed innocent and thus have an expectation of privacy much closer to an ordinary citizen than a convicted offender. Although the Court determined that governments have a legitimate government interest in “identifying” the arrestees, the “identification” is really ordinary, investigative police work, which cannot overcome the violation of the arrestees’ reasonable expectations of privacy.
The majority also found the DNA testing to be essentially the same as fingerprinting, ignoring that DNA testing is intrusive and not used for identification and can reveal much more information about a person than fingerprinting. Furthermore, the suspicionless DNA testing for the purposes of investigation is not exempt from the Warrant Clause under any other common exception, including the special needs, incident to arrest, or exigent circumstances doctrines. If the Court’s identification justification is sufficient, there will be no stopping the warrantless DNA testing of individuals any time they are asked for identification by law enforcement, such as during traffic stops. Allowing carte blanche DNA testing places an individual’s most intimate information at risk of being disseminated, whether by accidental or intentional governmental abuse.
This Comment argues that states should hold that the warrantless DNA testing of arrestees is unconstitutional under their state constitutional provisions analogous to the Fourth Amendment. The doctrine of federalism allows a state to grant more protections to its citizens under the state constitution than those provided by the United States Constitution. By simply requiring law enforcement agencies to obtain a warrant supported by probable cause before obtaining the DNA of arrestees, state courts will ensure that the privacy rights of innocent-until-proven-guilty arrestees are maintained.”

How the DNA Act Violates the Fourth Amendment Right to Privacy of Mere Arrestees and Pre-Trial Detainees, 59 Loy. L. Rev. 157 (2013)
“In light of the [Maryland v.] King decision, this comment proposes that the current DNA Act violates the fundamental notions of privacy established by the Fourth Amendment, and, thus, it is unconstitutional. Once an individual’s DNA is taken and submitted into a federal database, there are no guarantees or unfailing safety measures for retrieval of that DNA if the arrest is subsequently voided, or if the charges are thrown out or dismissed. The statute [42 U.S.C. S 14135a] should be modified to prevent this invasion of privacy and to ensure the protections provided by the Fourth Amendment to persons whose arrests or pre-trial detentions do not result in eventual conviction.
Section II of this comment lays out the background procedural processes and jurisprudence that are essential for an understanding of the laws regarding DNA collection and profiling. This section explains the acts governing DNA sampling and analysis as well as the safeguards instituted to prevent abuse of DNA collection. Section II also details the right to privacy protected by the Fourth Amendment and how the case law concerning its application to DNA testing has evolved over the years. Additionally, this section describes the circuit split regarding the application of the Fourth Amendment to the DNA Act and addresses the two different approaches.
Section III of this comment proposes amending the DNA Act, while also maintaining Congress’s intended purpose in passing the Act. Section III suggests that Congress either remove “arrestees and pre-trial detainees” from the statute or make alterations to the DNA Act and its regulations to place the burden of retrieving and expunging the DNA profile on the government. It also suggests that the DNA not be kept indefinitely and that definitive safeguards be implemented. Alternatively, this section proposes that courts should properly apply the requirements and analysis of what constitutes “legitimate governmental interests” and the importance of privacy interests. Additionally, Section III includes defenses to this proposed solution and a critique of the current statute and its limited precedential application after its expanded revision. This section further argues that courts treat the government’s interests in DNA collection for “identification” purposes as a pretext, when the underlying intent to gain such information is to aid in solving other crimes. By upholding the DNA Act, courts guarantee that the government’s interests in obtaining DNA to aid in solving past crimes will always trump an individual’s interest in and expectation of privacy, which contravenes the purpose of the Fourth Amendment. Finally, Section IV summarizes the concerns regarding the current DNA Act and criticizes the precedent that allows for the deterioration of rights protected by the Fourth Amendment.”

Indecent Exposure: Genes Are More Than a Brand Name Label in the DNA Database Debate, 42 U. Balt. L. Rev. 561 (2013)
“Before we started expanding the use of DNA databases, we should have considered three things: (1) would expansion increase investigative outcomes; (2) are those outcomes worth the consequences; and (3) is the advancement of DNA technology fixed? While the first may have been a no-brainer, it seems that we have not given any real thought to the other two. It seems likely that with the Supreme Court’s decision this year, DNA databases and the populations housed within them will continue to explode in numbers. As citizens, DNA and the concept of turning it over freely has become as routine as giving private information over to the likes of Facebook, LinkedIn, and other social media outlets. We are indifferent to the number of situations that call for the submission of genetic material to medical providers, businesses selling at-home genetic tests, ancestry websites, and other public and private institutions. The reality is that troves of our genetic data are “persistent and widely shared” and incredibly difficult for us later to “access, to verify, or to correct.”
It should not surprise us, then, that the criminal justice system wants to collect DNA from an ever-increasing spectrum of people who come into contact with it. The notion of privacy and the presumption of innocence are now blurred figures in this landscape. These concerns do not pertain to simply the collection of DNA profiles and samples, but also to the other information that may be kept. While criminal investigations and medical research previously operated in different genetic spheres, those spheres are starting to converge. When DNA is collected on arrest and uploaded into the database, it is not simply translated into an identity-free criminal bar code. Ultimately, that digitized profile must link to a name, to a location, and possibly to a criminal record. Other records may also be available, especially for released offenders because police must be able to track that person down if there is a hit in the database later. Ultimately, we may find that when police do contact a database offender they may also be able to tell that person his or her predisposition to kidney disease.
In the wake of the [Maryland v.] King case, the fingerprint-DNA analogy has overstayed its welcome. Nonetheless, it seems that it is not slated for retirement any time soon despite enduring concerns about the expansion of DNA collection. If the extension of DNA databases is in fact inevitable, then it should likewise be foreseeable that DNA technology may advance and outpace the restrictions once thought sufficient to keep databases sufficiently void of identifying information. As for now, it seems we would rather be content to operate databases at the margins of technology and tolerate a certain margin of error when things go awry. The criminal justice system hungers for the ability to solve crime and convict the guilty. Databases certainly feed that insatiable beast, but we need to respect that DNA is not the tame dormouse we once thought it to be.”

License, Registration, Cheek Swab: DNA Testing and the Divided Court, 127 Harv. L. Rev. 161 (2013)
“Maryland v. King looks on its face like just another Fourth Amendment dispute — with civil libertarians on one side and law enforcement on the other — and 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 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. First, this Comment 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. It next considers King as it exemplifies the judicial response to forensic DNA typing more generally, and imagines its precedential value in future biometric cases. Finally, the Comment closes by situating King in the broader landscape of the Court’s recent Fourth Amendment jurisprudence and analyzing its insights for the evolution of the field as a whole.”

Maryland v. King and the Wonderful, Horrible DNA Revolution in Law Enforcement, 11 Ohio St. J. Crim. L. 295 (2013)
“In Maryland v. King, the Supreme Court held that a Maryland statute authorizing forced DNA sampling from those arrested for certain serious felonies, for inclusion in Maryland’s offender DNA database, did not violate the Fourth Amendment. At oral argument, Justice Alito declared that King was “perhaps the most important criminal procedure case that this Court has heard in decades.” That statement, while perhaps dramatic, reflects how the DNA revolution has transformed crime solving. We are flooded daily with media reports about unresolved cases cracked by a “cold hit” between DNA from a crime scene and a convicted felon’s DNA database profile. Maryland’s law, which adds the DNA profiles of arrestees of serious crimes to the convicted felon profiles already in the state offender database, is squarely a part of this crime-solving frenzy. One might be forgiven, then, for predicting that an opinion upholding that law would be an unapologetic paean to the crime-solving virtues of DNA databases. Instead, the majority reconceptualizes the law as deploying DNA typing as a “routine booking procedure,” and focuses exclusively on the state’s interest in confirming arrestees’ identities and determining arrestees’ criminal history before making bail decisions.
In Part I of this essay, I [Andrea L. Roth] offer an explanation for the majority’s curious logic. Part of the explanation is obvious: five justices were not ready to hold that a suspicionless search conducted primarily for crime-solving is legal so long as it is “reasonable.” But the Court might also have been concerned that a crime-solving rationale would justify expanding databases beyond arrestees for serious offenses to arrestees for minor traffic offenses or even the general public, results that the justices-and other privileged Americans who are lucky enough never to have been arrested for a serious offense-might not quietly abide. In Part II, I explain that while the dissent is right in pointing out the Court’s revisionist view of the law, the Court still might have written a coherent opinion upholding it. I ultimately suggest in Part III, however, that the norm the Court’s opinion seems to set-drawing the line at arrestees-is the worst possible result. As long as arrestees are going to be swept up in the dragnet, the best policy choice – one that would avoid the severe racial inequities in current databases, maximize DNA’s crime-solving power, and ensure a robust privacy debate, is a universal citizen database.”

Maryland v. King: Policing and Genetic Privacy, 11 Ohio St. J. Crim. L. 281 (2013)
“With its decision in Maryland v. King, the Supreme Court finally stepped into the debate about the use of DNA databases in the American criminal justice system. With King, the Court decided a newly emerging database issue rather than an old one: whether the Fourth Amendment prohibits the collection of DNA samples from arrestees without a warrant or any individualized suspicion. According to the five member King majority, such compulsory collections are reasonable Fourth Amendment searches, given the outcome of a balancing of interests between the individual and government. The problem with King is that it may become influential in ways that weren’t fully contemplated by the Supreme Court. While some may lament the micromanagement of policing by the modern Supreme Court’s jurisprudence, the reality is that police investigation practices are unevenly regulated. Indeed, what King reveals is the extent to which the Court leaves many matters untouched by Fourth Amendment constraints and subjects them, for better or worse, to the control of the other political branches (as well to likely squabbling in the lower courts). This essay discusses three notable revelations in the Court’s decision about the future of policing and genetic privacy. As the essay argues, what the Court introduces it also fails to regulate or even guide in any significant sense.”

Maryland v. King: Sacrificing the Fourth Amendment to Build Up the DNA Database, 73 Md. L. Rev. 667 (2014)
“Although DNA technology is undoubtedly a powerful crime fighting tool, the [Maryland v.] King Court’s assessment of the DNA collection of arrestees under the reasonableness balancing test is a misguided judicial response to the immediate benefits of new technology, and it leaves room for government abuse. Unlike searches of physical places and things, a search of someone’s DNA is unique with respect to the physical intrusion necessary to effectuate the search and the amount of data rendered by the search. While DNA searches require limited physical invasion of the human body, they yield a considerable amount of aggregated data. Thus, these types of searches are complex and require special consideration. The King Court, however, wrongly applied the reasonableness balancing test. Instead, the Court should have relied on a line of cases that involves searching data on seized computers, which are more comparable to cases on collecting and searching DNA data. If the Court had done so, the Court would have found that similar to the requirement to obtain a search warrant to search data on seized computers, the government should be required to obtain a search warrant before entering an arrestee’s DNA profile into a DNA database to search for a “hit.””

Maryland v. King: The Case for Uniform, Nationwide DNA Collection and DNA Database Laws in the United States, 23 Information & Communications Technology Law 77 (2014)
“The recent United States Supreme Court pronouncement in Maryland v. King that the police may readily take a DNA cheek swab of a suspect after an arrest for a serious offense poses challenging Fourth Amendment questions. Moreover, private DNA databases built by healthcare centers raise concerns such as the security of the data from government intrusions and whether information from a DNA database might be sold. In this article, I [Vikram Iyengar] advocate for a uniform national infrastructure of DNA collection and retention laws, and legislative and judicial safeguards on third-party use and disclosure of citizens’ DNA information.”

On the ‘Considered Analysis’ of Collecting DNA Before Conviction, 60 UCLA L. Rev. Disc. 104 (2013)
“For nearly a decade, DNA-on-arrest laws eluded scrutiny in the courts. For another five years, they withstood a gathering storm of constitutional challenges. In Maryland v. King, however, Maryland’s highest court reasoned that usually fingerprints provide everything police need to establish the true identity of an individual before trial and that the state’s interest in finding the perpetrators of crimes by trawling databases of DNA profiles is too “generalized” to support “a warrantless, suspicionless search.” The U.S. Supreme Court reacted forcefully. Chief Justice Roberts stayed the Maryland judgment, writing that “given the considered analysis of courts on the other side of the split, there is a fair prospect that this Court will reverse the decision below.” The full Court then granted a writ of certiorari. This essay briefly examines the opinions listed by the Chief Justice and finds their analysis incomplete. I [David H. Kaye] outline the Fourth Amendment questions that a fully considered analysis must answer, identify questionable dicta on the definition of “searches” and “seizures” in the opinions, describe a fundamental disagreement over the analytical framework for evaluating the reasonable warrantless searches or seizures, and criticize a creative compromise in one of the opinions that would allow sample collection without DNA testing before conviction. I conclude that the Supreme Court not only must assess the actual interests implicated by pre-conviction collection and profiling of DNA but also should articulate the appropriate framework for evaluating the reasonableness of warrantless searches in general.”

Policing by Numbers: Big Data and the Fourth Amendment, 89 Wash. L. Rev. 35 (2014)
“The age of “big data” has come to policing. In Chicago, police officers are paying particular attention to members of a “heat list”: those identified by a risk analysis as most likely to be involved in future violence. In Charlotte, North Carolina, the police have compiled foreclosure data to generate a map of high-risk areas that are likely to be hit by crime. In New York City, the N.Y.P.D. has partnered with Microsoft to employ a “Domain Awareness System” that collects and links information from sources like CCTVs, license plate readers, radiation sensors, and informational databases. In Santa Cruz, California, the police have reported a dramatic reduction in burglaries after relying upon computer algorithms that predict where new burglaries are likely to occur. Unlike the data crunching performed by Target, Walmart, or Amazon, the introduction of big data to police work raises new and significant challenges to the regulatory framework that governs conventional policing. This article identifies three uses of big data and the questions that these tools raise about conventional Fourth Amendment analysis. Two of these examples, predictive policing and mass surveillance systems, have already been adopted by a small number of police departments around the country. A third example — the potential use of DNA databank samples — presents an untapped source of big data analysis. While seemingly quite distinct, these three examples of big data policing suggest the need to draw new Fourth Amendment lines now that the government has the capability and desire to collect and manipulate large amounts of digitized information.”

Response: Maryland v. King: Per Se Unreasonableness, the Golden Rule, and the Future of DNA Databases, 127 Harv. L. Rev. F. 39 (2013)
“In License, Registration, Cheek Swab: DNA Testing and the Divided Court, Professor Erin Murphy deftly summarizes and situates the Supreme Court’s opinion in Maryland v. King. As she observes, the case can be read narrowly or broadly. Murphy reads the case broadly, suggesting that King is “a watershed moment” that portends “a new Fourth Amendment in town” and that its “reimagination of the idea of ‘identity'” “arguably invite[s] a new era of genetic identification.” Here, I [David H. Kaye] offer a less dramatic view of the doctrinal significance of King and the limits of the majority’s identification theory. I also offer a precept for officials seeking to expand or improve DNA databases in this new era.”

Suspicionless DNA Collection from Arrestees Violates the Fourth Amendment, But Easier Expunction of DNA Records Can Help Mitigate the Harm, SSRN (2013)
“Suspicionless DNA collection from pre-conviction arrestees should be treated as a violation of the Fourth Amendment when it is conducted without a valid search warrant. The predominant policy justifications for that DNA collection (1) as a crime-fighting tool and/or (2) a modern identification tool, like high-tech versions of fingerprints, are not compelling enough to justify treating the process as comporting with the Fourth Amendment. Arrestees do not have the same low expectation of privacy as prisoners or convicts, and treating them as if they do violates their legal presumption of innocence. The public interest in fighting crime and identifying arrestees also fits within the ordinary role of law enforcement, meaning that those activities do not qualify for the “special needs” exception to the individualized suspicion required for most Fourth Amendment searches and seizures.
However, since the Supreme Court upheld suspicionless arrestee DNA collection, analysis, and aggregation in a nationwide DNA database (in Maryland v. King, 133 S.Ct. 1958 (2013)), participating states should adopt measures requiring automatic expunction of the DNA records of any arrestees who are not convicted within a reasonable amount of time from when they were arrested for the crime that led to the collection of their DNA.”

Twenty-First Century Surveillance: DNA “Data-Mining” and the Erosion of the Fourth Amendment, 51 Hous. L. Rev. 229 (2013)
“This Comment argues that the Court should not have reversed the Maryland Court of Appeals’ decision because expansion of state DNA statutes threatens both the personal liberties of unconvicted citizens, as well as the integrity of already burdened crime labs. In response to the Court’s decision, this Comment proposes that Congress should constrain existing federal DNA legislation, thus requiring all fifty states that contribute to the federal database to comply with the stricter federal standards. Specifically, Congress should amend the federal legislation by: (1) requiring the automatic deletion of the DNA sample upon dismissal of charges; (2) postponing the creation of the DNA profile from the DNA sample until the arrestee is convicted; and (3) mandating that DNA samples be immediately deleted following the creation of the DNA profile.”

Why DNA Databasing Is Good for Maryland: A DNA Analyst’s Perspective, 42 U. Balt. L. Rev. 591 (2013)
“From a purely scientific point of view, more data is better. Drawing conclusions from small sets of data increases the likelihood that something has been missed, overlooked, or declined to be considered. Excluding data is limiting. When a crime is committed, there is a perpetrator. From the perspective of providing service to the citizens in the region and being as scientifically precise as possible, excluding data sets means all possible outcomes are perhaps not being explored. In the context of a scientific endeavor, gathering as much information as possible and practicable is prudent and beneficial to the results of the analysis. Having an expanded DNA database, filled with profiles of eligible and lawfully collected samples, benefits a laboratory’s ability to arrive at conclusions, rather than leaving a sample as “unknown.” As stated previously, the national database contains over 400,000 “unknowns” in the forensic index. Our goal as forensic DNA scientists, police agencies, and policy makers should be to decrease, or ideally, eliminate those unknowns, prevent future criminal activity, and provide answers to the citizens we serve. One powerful way to do this is by continuing to expand the DNA database to include the DNA profiles of arrestees.
Continuing to add DNA profiles to forensic DNA databases across the nation will lead to lower levels of crime through prevention, lower costs for enforcement, and safer neighborhoods. Using illogical rationale to prevent collections and limit the size and scope of these databases increases the likelihood of higher crime rates and lower case closure rates. In terms of societal benefit, having the tools necessary to prevent crime and identify those who commit crime through objective evidence is a goal all should agree is worth accomplishing.”

Why So Contrived? The Fourth Amendment and DNA Databases After Maryland v. King, SSRN (2014)
“In Maryland v. King, 133 S.Ct. 1958 (2013), the Supreme Court narrowly upheld the constitutionality of routine collection and storage of DNA samples and profiles from arrestees. Oddly, the majority confined its analysis to using DNA for certain pretrial decisions rather than directly endorsing DNA’s more obvious value as a tool for generating investigative leads in unsolved crimes. This article suggests that this contrived analysis may have resulted from both existing Fourth Amendment case law and the desire to avoid intimating that a more egalitarian and extensive DNA database system also would be constitutional. It criticizes the opinions in King for failing to clarify the conditions that prompt balancing tests as opposed to per rules for ascertaining the required reasonableness of searches and seizures. It urges the adoption of a more coherent doctrinal framework for scrutinizing not just DNA profiling, but all forms of biometric data collection and analysis. Finally, it considers what King implies for more aggressive DNA database laws.”


1 For legal surveys of the pre-Maryland v. King landscape see Collecting DNA at Arrest: Policies, Practices, and Implications (Urban Institute May 2013) and Updated June 2013 (to reflect Maryland v. King decision); DNA Sample Collection from Arrestees (NIJ Dec. 7, 2012); DNA for the Defense Bar (NIJ 2012); DNA Collection upon Arrest (NCSTL May 2011); Table 1. DNA Arrestee Laws in DNA Laws Database (NCSL 2010); State Laws Pertaining to Surreptitious DNA Testing (Genetics and Public Policy Center Jan. 21, 2009).

2 133 S.Ct. at 1976 (“DNA identification is an advanced technique superior to fingerprinting in many ways, so much so that to insist on fingerprints as the norm would make little sense to either the forensic expert or a layperson. The additional intrusion upon the arrestee’s privacy beyond that associated with fingerprinting is not significant, see Part V, infra, and DNA is a markedly more accurate form of identifying arrestees. A suspect who has changed his facial features to evade photographic identification or even one who has undertaken the more arduous task of altering his fingerprints cannot escape the revealing power of his DNA.”). See generally Keagan D. Buchanan, The Twenty-First Century Fingerprint: Previewing Maryland v. King, 4 Cal. L. Rev. Cir. 38 (2013).

3 See, e.g., Michelle Mowad, DNA Database Catches Up With Repeat Offenders, LaJolla Patch, April 30, 2014 (“By integrating a real-time DNA database with the District Attorney’s case management system, prosecutors are better able to match defendants already being prosecuted to additional crimes they may have committed. By integrating a real-time DNA database with the District Attorney’s case management system, prosecutors are better able to match defendants already being prosecuted to additional crimes they may have committed.”). See generally Angelique Romero, Implications of United States v. Jones on DNA Collection From Arrestees: A Trespass Prohibited by the Fourth Amendment?, 25 St. Thomas L. Rev. 244 (2013)(“DNA, unlike a fingerprint, is equivalent to a personal medical record. JUSTICE, a law reform organization, has described genetic information as “the most intimate medical data an individual may possess.” DNA can reveal whether a person is susceptible to certain diseases, such as Alzheimer’s disease, or whether the person carries a specific gene. Moreover, another monumental difference between DNA and fingerprints is that DNA analysis can “implicate biological relatives of the [arrestee], whose profiles, while not identical to the [arrestee’s] profile … may be similar.” DNA and fingerprints are not analogous, and should not be treated alike legally. DNA collection is subject to Fourth Amendment analysis to determine its validity because there are integral differences from fingerprinting.” Id. at 254-255.); Wayne A. Logan, Policing Identity 92 B.U. L. Rev. 1561 (2012)(“Identity has long played a critical role in policing: learning “who” an individual is not only affords police knowledge of possible criminal history but also “what” an individual might have done. To date, however, these matters have eluded sustained scholarly attention, a deficit assuming ever greater importance as government databases have become more comprehensive and powerful over time. This Article seeks to remedy the identity crisis that has affected identity evidence. It does so by first surveying the methods historically used by police to identify individuals, ranging from nineteenth century efforts to measure bodies and note physical marks to today’s biometric identifiers. As this history makes clear, the American justice system has not kept pace with this evolution, failing to impose meaningful constraints on police authority to collect and use identity evidence. The Article highlights this shortcoming and offers a remedy, focusing on two central yet unresolved questions: (i) whether and how limits should be placed on the collection and use of legally obtained identity evidence, DNA in particular, and (ii) whether illegally obtained identity evidence should be subject to suppression. In doing so, the Article provides a much-needed analytic framework for courts as they seek to balance social control needs and individual civil liberties.”).

4 See, e.g., Jennifer K. Wagner, Judicial and Legislative Reactions in California to Maryland v. King, 133 S.Ct. 158 (2013), Genomics Law Report, March 31, 2014 (“Justice Kennedy’s opinion in King indicated it was intended to be a narrow ruling, focused on the specific facets of Maryland’s state statute. This narrow scope effectively left other DNA fingerprinting schemes open to constitutional challenges if they could be distinguished from the details of the Maryland statute.”); Michael Wein, The Potential After-Effects of DeWolfe’s Implementation – Expanding Maryland v. King to Begin Testing All Arrestee DNA, Maryland Appellate Blog, March 27, 2014; David H. Kaye, What Is Wrong with People v. Lowe? More on DNA-on-Arrest Laws After Maryland v. King, Forensic Science, Statistics & the Law, March 24, 2014.

5 See Pete Shanks, Update on Controversial Police DNA Collection in the States, Biopolitical News, April 3, 2014. See generally Julie Samuels et al., Collecting DNA From Arrestees: Implementation Lessons, NIJ Journal No. 270, June 2012, at 18 (modified Sept. 18, 2012)(“The first state to pass legislation authorizing the collection of DNA samples from arrestees was Louisiana in 1997. The legislation authorized DNA sample collection from “a person arrested for a felony sex offense or other specified offense on or after September 1, 1999.” [5] In the eight years that followed, four additional states passed arrestee DNA laws. The pace of expansion increased dramatically after Congress passed the DNA Fingerprint Act of 2005, [6] which, among other things, enabled states to upload arrestee DNA profiles to the National DNA Index System (NDIS). Between 2006 and 2011, 23 states passed arrestee DNA collection legislation. Today, 28 states and the federal government have passed legislation authorizing the collection of DNA following arrest or charging (see Figure 1).” Id. at 19.).

6 See, e.g., Brendan Heil, Striking a Balance: Why Ohio’s Felony-Arrestee DNA Statute is Unconstitutional and Ripe for Legislative Action, 61 Clev. St. L. Rev. 529 (2013).

7 See generally Ken Strutin, DNA, Privacy and Personhood: The Crime of Being Alive , N.Y.L.J., July 23, 2013, at 5; Ken Strutin, DNA Sampling: A Challenge to Privacy and Dignity, N.Y.L.J., May 22, 2012, at 5.

8 See Valerie Ross, Forget Fingerprints: Law Enforcement DNA Databases Poised to Expand, Nova Next, Jan. 2, 2014 (“Today, 28 states and the federal government already collect genetic samples from people arrested for serious crimes (mostly felonies, though some jurisdictions include certain misdemeanors as well), while the remaining 22 states only take samples from people convicted of those crimes. The recent ruling is likely to have wide-reaching implications—both for states that already have databases and for those that don’t, yet.”); Candice Roman-Santos, Concerns Associated with Expanding DNA Databases, 2 Hastings Sci. & Tech. L. J. 267, 295-98 (2011) (“function creep”). See also DNA Database, The Guardian (news articles related to DNA testing developments in the UK). See generally Robin Cheryl Miller, Validity, Construction, and Operation of State DNA Database Statutes, 76 A.L.R.5th 239.

9 For a general review of DNA forensics information sources see Ken Strutin, DNA Evidence: Brave New World, Same Old Problems, LLRX, Oct. 14, 2013; Ken Strutin, DNA Identification Evidence in Criminal Prosecutions, LLRX, March 7, 2010; Ken Strutin, Criminal Law Resources: DNA Post-Conviction Resources, LLRX, Sept. 14, 2008.

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