Is  taking  DNA  samples  from  suspects  unconstitutional?

Police in Maryland can resume collecting DNA from suspects charged — but not yet convicted — in violent crimes  There is the possibility that  the U.S. Supreme Court might be inclined to let them do so permanently.

U.S. Chief Justice John G. Roberts Jr. issued his opinion  on the matter saying there is a “fair prospect” the court will overturn the Maryland Court of Appeals controversial decision, of Alonzo Jay King Jr. v. Maryland which prohibited DNA collection from suspects charged — but not yet convicted — in violent crimes and burglaries.

The Court of Appeals ruled 5-2 that the state violated Alonzo Jay King Jr.'s constitutional rights by using DNA evidence taken from him after arresting him for a violent 2009 assault.. That sample led to his conviction in a 2003 rape case, in which he raped of a woman in her Salisbury home. However, his attorneys successfully argued that collecting his DNA violated his Fourth Amendment right to be free of unreasonable searches and seizures. And further they argued that the police denied their client his protection against unreasonable searches without a warrant for the samples of King’s DNA. The judges ordered that King Jr’s rape case be sent back to Wicomico County Circuit Court for a new trial.

This raises an interest quandary for his new trial judge. If the Supreme Court of the United States rules that in King Jr.’s particular case, the evidence of his DNA sample cannot be used in his new trial simply because that DND was not acquired properly through the use of a warrant. That being as it is, will the judge then authorize that a new DNA sample be taken from King Jr. if the Supreme Court rules that DNSA samples can be taken from suspects.

Here is the problem. There is an adage in law that says that one cannot eat the fruit of the poisoned tree. What that means is that you cannot benefit from your own wrongdoing.  In simpler terms it means that the police may not be able to obtain another sample of DNA from King Jr. because they learned of the previous 2003 rape as a result of illegally taking his DNA sample from him without first obtaining a warrant to do so. There certainly is an uncertainty about derivative evidence. Does the exclusion of the original evidence really apply only to that obtained illegally or can it extend as well to new similar evidence that was discovered from the result of the information obtained from the original evidence that was previously illegally obtained?   

That would not be a problem in Canadian criminal law because although section 24 (2) of the Canadian Charter of Rights and Freedoms guarantees that evidence can be excluded if it is established that the admission of it in a court would bring the administration of justice in dispute, the court can rule that it can be admitted as evidence if the judge is satisfied that a criminal who committed a serious crime would walk free over a mistake on the part of the police.

The Supreme Court of Canada considered a case (Hogan v. The Queen) where seven of the nine judges ruled that a lower court doesn’t necessarily have to exclude illegally obtained evidence. That is because section 24(2) gives the courts the right to consider all circumstances of the police having illegally obtained evidence and those circumstances can include what is in the best interests of the general public. For example, would it be in the best interests of the court to set free a serial killer simply because a warrant wasn’t issued for his arrest before they picked him up? I think not.

I believe that the Supreme Court of the United States when considering the King Jr. case will ask themselves the same kind of question—the question being, should a rapist be set free to perhaps rape another victim simply because the police didn’t obtain a warrant first before taking a sample of his DNSA from him?

And until the nation’s highest court can more thoroughly consider the issue, Justice Roberts put the King decision on hold which means that the police in Maryland can resume collecting DNA from suspects.

“This stay will allow Maryland police the uninterrupted use of this critical modern law enforcement tool [that helps] police and prosecutors solve some of Maryland’s most serious violent crimes,” Maryland Attorney General Douglas F. Gansler said in a statement.

The Supreme Court’s opinion is the latest development in an ongoing debate over whether and when it is legal to collect DNA from criminal suspects. Federal and state courts across the country have issued mixed opinions. The governor’s office says 26 states have legislation similar to Maryland’s.

It is precisely because of that debate that the Supreme Court intervened. In his opinion, Roberts wrote that the Maryland Court of Appeals decision conflicts with decisions by two other federal appellate courts, as well as a decision by Virginia’s Supreme Court. Roberts wrote that “given the considered analysis of the courts on the other side of the split, there is a fair prospect that this Court will reverse the King decision.

Stephen Mercer, the chief attorney for the Maryland Office of the Public Defender’s Forensics Division, said the opinion is merely a preliminary round in this particular ongoing legal fight.

Mercer also said, “We continue to believe the court, in the end, will vindicate the Fourth Amendment rights of Mr. King and all Marylanders in their right to genetic privacy.”

The Fourth Amendment deals with this issue. It guarantees in part that—

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”

I should add as an aside that the Canadian Charter of Rights and Freedoms has a similar clause.

The case centers on a Maryland law, which, starting in 2009, allowed police to collect DNA from suspects after they were charged with violent crimes or burglaries. Before then, police had been able to collect DNA only from convicted criminals.

Alonzo Jay King Jr. challenged the law after he was arrested in April 2009 on assault charges. Prosecutors used a DNA swab from that case to connect him to a 2003 rape. He was eventually convicted and sentenced to life in prison for the rape.

The Maryland Court of Appeals sent King’s case back to the circuit court and threw out the DNA evidence, saying investigators violated his Fourth Amendment rights in taking his genetic material and comparing it with old crime scene samples. The ruling was condemned by prosecutors and police chiefs, who said it would hamper detectives’ ability to solve cold cases and jeopardize the convictions of 34 robbers, burglars and rapists whose genetic samples were taken after they were charged in separate cases.

On the advice of the attorney general’s office, the police then suspended DNA collection in the wake of the ruling. Now, it seems, they will be able to start collecting again. In his opinion, Roberts wrote that the Maryland Court of Appeals ruling creates “an ongoing and concrete harm to Maryland’s law enforcement and public safety interests” — even if it is only in effect for a matter of months.

Without a stay, “Maryland would be disabled from employing a valuable law enforcement tool for several months—a tool used widely throughout the country and one that has been upheld by two Courts of Appeals and another state high court,” Roberts wrote.

The Supreme Court had already temporarily stayed the decision while it waited for input from the Maryland Public Defender’s Office. In its filing opposing the stay, the public defender’s office argued that the King ruling was not causing any immediate harm, noting that Maryland’s attorney general had waited nearly eight weeks to ask for a stay.

Maryland authorities must file a petition for certiorari to have the Supreme Court consider whether to overturn the King ruling.

My personal view is that I see nothing wrong with obtaining DNA samples from suspects. The police obtain fingerprints from suspects and they take photographs of their faces and match them with unknown criminals who have been described to police artists who have draw the pictures of those criminals that committed crimes against the victims.  It will be interesting to see how the Supreme Court of the United States rules on this interesting case. When I learn of its decision, I will place it as an UPDATE at the end of this article.