King v. State

BARBERA, J.,

dissenting, in which WILNER, J., joins.

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

It is not disputed — indeed there is no doubt — that the buccal swab was a “search,” for purposes of the Fourth Amendment.1 See Skinner v. Ry. Labor Executives Ass’n, *604489 U.S. 602, 616, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). The question, then, is whether this warrantless search complied with the strictures of the Fourth Amendment, the touchstone for which is “reasonableness.” United States v. Knights, 534 U.S. 112, 118, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001); accord Wilson v. State, 409 Md. 415, 427, 975 A.2d 877, 884 (2009). The test for ascertaining the answer to the reasonableness inquiry is one adopted by the Supreme Court long ago, Terry v. Ohio, 392 U.S. 1, 20-21, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and followed by this Court ever since, see Anderson v. State, 282 Md. 701, 704-05, 387 A.2d 281, 283 (1978); Wilson, 409 Md. at 427, 975 A.2d at 884.

Under that test, whether a given warrantless search is reasonable requires balancing the privacy interests of the individual searched against the legitimate government interests promoted by the search. Samson v. California, 547 U.S. 843, 848, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006); accord Wilson, 409 Md. at 427, 975 A.2d at 884. The test has been employed to uphold searches of persons in situations akin to the case at bar. See, e.g., Samson, 547 U.S. at 847, 126 S.Ct. 2193 (holding that a police officer’s warrantless, suspicionless search of a parolee was reasonable under the Fourth Amendment); State v. Raines, 383 Md. 1, 41, 857 A.2d 19, 43 (2004) (holding that the warrantless collection of DNA from “a certain group of convicted persons” was reasonable because “the minimal physical intrusion on the inmate, a person with a diminished expectation of privacy, is outweighed by the legitimate governmental interest in identifying persons involved with crimes, including vindicating those falsely convicted”); see also Knights, 534 U.S. at 122, 122 S.Ct. 587 (holding that balancing of the competing interests at stake rendered reasonable the warrantless search, supported by reasonable suspicion, of a probationer’s home).

The majority recognizes that the balancing test is the appropriate test to determine the reasonableness, and hence the constitutionality, of the search at issue here. 425 Md. 550, 562-63, 42 A.3d 549, 556-57. Regrettably, both for the present case and all other future cases like it, the majority’s *605application of the test to the circumstances here could not be more wrong. Proper analysis of the competing privacy and governmental interests at stake exposes the error.

To repeat, “reasonableness” depends on a balance between the governmental interests and the individual’s right to personal security free from arbitrary interference by law officers. In assessing, first, the interests at stake for King, I bear in mind that consideration of the privacy interest implicated by the buccal swab involves identifying both the nature of the privacy interest enjoyed by King at the time of the swab and the character of the intrusion itself. See Bell v. Wolfish, 441 U.S. 520, 559, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979) (“In each case it requires a balancing of the need for the particular search against the invasion of personal rights that the search entails. Courts must consider the scope of the particular intrusion, the manner in which it is conducted, the justification for initiating it, and the place in which it is conducted.”).

The majority misstates the degree to which King’s privacy was impinged by his arrest. The majority juxtaposes King’s status as an arrestee with that of a convicted felon, probationer, or parolee, and then declares that King’s privacy interest is “greater” than that of persons in those categories because he enjoys a presumption of innocence. 425 Md. at 593-95, 42 A.3d at 575-76. Certainly, up to the moment of conviction, King enjoyed the presumption of innocence in connection with the crimes charged. Yet King’s status as a presumed-innocent man has little to do with the reduced expectation of privacy attendant to his arrest, processing, and pre-trial incarceration (even if for but a short time). For purposes of the Fourth Amendment analysis, King’s privacy expectation at the time of the cheek swab was far more like a convicted felon, probationer, and parolee than an uncharged individual. To make the point, I need mention only some of the intrusions on personal privacy that attend any arrest.

The lawful intrusions that could be, and likely were, visited upon King began at or soon after the moment of arrest. Any arrestee is lawfully subject to an immediate, head-to-toe *606search of his person and any personal belongings in his possession at the time. See United States v. Robinson, 414 U.S. 218, 235, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). At the station-house, the arrestee can be subjected as a matter of protocol (and without the need for individualized suspicion) to a warrantless strip-search, even if the arrest is for a minor offense. Florence v. Cnty. of Burlington, 566 U.S. —, 132 S.Ct. 1510, 1521, 182 L.Ed.2d 566 (2012) (Filed April 2, 2012). See also Bell, 441 U.S. at 558, 99 S.Ct. 1861 (approving body cavity searches of pretrial detainees). Even if not strip-searched, the arrestee can be subject to observation, while in various stages of undress, by police officials; and the arrestee, if placed in a cell with or near other arrestees, can be subject to similar observation by them (or police officials) while using the toilet. See Johnson v. Phelan, 69 F.3d 144, 145, 150 (7th Cir.1995). In short, any arrestee, including King, has a grossly diminished privacy expectation.

The majority’s Fourth Amendment analysis also suffers from its mislabeling the character of the intrusion upon privacy and bodily integrity occasioned by the cheek swab, and the degree to which the arrestee’s privacy interest is impinged as a result of the information obtained thereby. DNA collection in Maryland is achieved by rubbing and rotating a cotton swab on the inside of an individual’s cheeks. This procedure involves placing a cotton instrument inside the mouth for a few seconds, and contacting the cheek with enough pressure to remove a biological sample. The buccal swab technique has been described as “perhaps the least intrusive of all seizures,” Jules Epstein, “Genetic Surveillance” — The Bogeyman Response to Familial DNA Investigations, 2009 U. 111. J.L. Tech & Pol’y 141, 152 (2009) (hereafter “Epstein”), and a “relatively noninvasive means of obtaining DNA” that “pose[s] lowered risk for both the subject and laboratory personnel,” Amy H. Walker, et ah, Collection of Genomic DNA by Buccal Swabs for Polymerase Chain Reaction-Based Biomarker Assays, 107 Envtl. Health Perspective 517, 520 (1999).

A buccal swab is less physically invasive than the drawing of blood, which the Supreme Court addressed in Schmerber v. *607California, 384 U.S. 757, 771-72, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). The Court held in that case that the warrantless drawing of a blood sample from an arrestee, at the direction of a police officer, did not violate the Fourth Amendment prohibition against unreasonable searches. The Court described the drawing of blood as “commonplace” and “involving] virtually no risk, trauma, or pain.” Id. at 771, 86 S.Ct. 1826. Since then, the Supreme Court has characterized the intrusiveness of blood-drawing as “not ... an unduly extensive imposition on an individual’s personal privacy and bodily integrity,” Winston v. Lee, 470 U.S. 753, 762, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985); and “not significant,” Skinner, 489 U.S. at 625, 109 S.Ct. 1402. If the subcutaneous removal of blood from a person’s veins presents only a marginal intrusion into that person’s privacy interest, a foHiori the insertion of a cotton swab into a person’s mouth is less of an intrusion and fairly characterized as de minimis. Unlike the process of drawing blood, performing a buccal swab does not require skin to be pierced, or a hard, foreign object to be situated inside of the body.

In short, I agree with the reasoning of the United States Court of Appeals for the Ninth Circuit in Haskell v. Harris, 669 F.3d 1049, 1059 (9th Cir.2012). The court in Haskell upheld a DNA collection statute that permits buccal swabs of all adults arrested for felonies explaining that,

the physical extraction of DNA using a buccal swab collection technique is little more than a minor inconvenience to felony arrestees, who have diminished expectations of privacy. Moreover, it is substantially less intrusive, both physically and emotionally, than many of the other types of approved intrusions that are routinely visited upon arrestees.

accord United States v. Mitchell, 652 F.3d 387, 407 (3rd Cir.2011) (noting, in a case upholding the constitutionality of a federal statute that authorizes DNA collection from arrestees, that “the intrusion occasioned by the act of collecting the DNA sample is minimal and does not weigh significantly in [the arrestee’s] favor”).

*608The amount and character of the information obtained from analysis of the cheek cells is also pertinent to the privacy interest analysis. Here too, the majority’s analysis misses the mark. The Act authorizes the collection of biological material that contains an individual’s entire genome. The majority seizes on this point, reasoning that “[a] DNA sample ... contains within unarguably much more than a person’s identity[,]” 425 Md. at 596, 42 A.3d at 577, and in that way is unlike a fingerprint, which only “can determine ... a person’s identity by matching the physical characteristics [of the fingerprint] to a known set of fingerprints,” id. For this reason, notwithstanding that § 2-505(b) of the Act only authorizes DNA analysis for the purpose of identification, the majority is unable to “turn a blind eye to the vast genetic treasure map that remains in the DNA sample retained by the State.” 425 Md. at 596, 42 A.3d at 577.

I could not disagree more. I interpret the majority’s concerns as much like those expressed by the plaintiffs in Haskell, supra, which the court described as “evok[ing] images of an oppressive ‘Big Brother’ cataloging our most intimate traits.” 669 F.3d at 1059. I, like the Ninth Circuit, believe that “the reality is far less troubling.” See id. The Act categorically prohibits the plundering of “the vast genetic treasure map” that is incidentally made available by DNA collection. Up to five years of imprisonment and/or a fine of up to $5,000, see § 2-512(e) of the Act, awaits anyone who “willfully test[s] a DNA sample for information that does not relate to the identification of individuals as specified in this subtitle,” § 2-512(c) of the Act. The same potential punishments await anyone who discloses information from a DNA profile, or discloses genetic information from the collected DNA sample itself. See § 2-512(a) of the Act. In short, the Act forecloses, without exception, all avenues by which a genetic pirate can obtain and exploit the “genetic treasure map” contained within a collected DNA sample.

Even more important to the privacy assessment is that the procedure by which DNA samples are tested cannot disclose intimate genetic information. COMAR 29.05.01.09(A) effec*609tively restricts the testing of DNA to the 13 loci specified by the FBI and CODIS. These specific loci are non-coding; “in other words, the genetic material at these locations is not known to determine a human attribute such as height, weight, or susceptibility to a particular disease.” Epstein, supra at 143. We have recognized the non-coding nature of these 13 loci, sometimes referred to as “junk” loci, in Williamson v. State, 413 Md. 521, 542-43, 993 A.2d 626, 639 (2010). These 13 loci exist in a “hypervariable region” of the DNA strand. “Outside of the hypervariable regions, the genomes of two randomly chosen individuals exhibit few differences. In contrast, within the hypervariable regions, two randomly chosen individuals will exhibit a number of differences.” Julian Adams, Nuclear and Mitochondrial DNA in the Courtroom, 13 J.L. & Pol’y 69, 74 (2005). Therefore, the loci cannot reveal any genetic information about an arrestee, other than that the arrestee is identifiably different from other members of the human race. And in showing that an arrestee’s DNA is identifiably different from others’ DNA, the loci can potentially show that an arrestee’s DNA is identical to strands of DNA collected from an unknown source, i.e. a crime scene. See Raines, 383 Md. at 25, 857 A.2d at 33 (“the only information obtained from the DNA linked to the individual pursuant to the Act is the DNA identity of the person being tested.”).

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

DNA type need be no more informative than an ordinary fingerprint----The “profile” of an individual’s DNA molecule that is stored in a properly constructed DNA identification database (like the FBI’s Combined DNA Index System (CODIS)) is a series of numbers. The numbers have no meaning except as a representation of molecular sequences at DNA loci that are not indicative of an individual’s personal traits or propensities. In this sense, the CODIS 13-STR *610“profile” is very much like a social security number — though it is longer and is assigned by chance, not by the federal government.

Id. at 45, 857 A.2d at 45-46 (Raker, J., concurring) (quoting D. Kaye and M. Smith, DNA Identification Databases, Legality, Legitimacy, and the Case for Populatiom-Wide Coverage, 2003 Wis. L.Rev. 413, 431-32 (2003)). In this way, the numbers of a DNA profile are identical to the ridges of a fingerprint — the information derived from both is, as the majority concedes, “related only to physical characteristics and can be used to identify a person, but no more.” 425 Md. at 595-96, 42 A.3d at 576-77.

The Supreme Court has given, albeit impliedly, the constitutional “go ahead” for the fingerprinting procedure. See Hayes v. Florida, 470 U.S. 811, 817, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985) (“There is thus support in our cases for the view that the Fourth Amendment would permit seizures for the purpose of fingerprinting, if there is reasonable suspicion that the suspect has committed a criminal act, if there is a reasonable basis for believing that fingerprinting will establish or negate the suspect’s connection with that crime, and if the procedure is carried out with dispatch.”). Given the similarity of fingerprinting and the DNA collection authorized by the Act, there is little concern that the Act implicates a weighty privacy interest.

Furthermore, if an arrestee has any interest in the information extracted from collected DNA, it is a privacy interest in the identification information revealed by the 13 loci. Given the already-diminished expectation an arrestee has in privacy generally, an arrestee can have only a modicum of interest in identity privacy, if any interest at all. Cf. Raines, 383 Md. at 25, 857 A.2d at 33 (“As such, appellee and other incarcerated individuals have little, if any, expectation of privacy in their identity.”).

On the other side of the Fourth Amendment reasonableness balancing equation is the State’s interest in the use and retention of DNA evidence. I need not discuss here the *611significance of all the government interests at stake, although there are at least three: identifying arrestees, solving past crimes, and exonerating innocent individuals. See Haskell, 669 F.3d at 1062-65 (discussing those interests); Mitchell, 652 F.3d at 413-15 (same).

We emphasized in Raines that identifying perpetrators of crimes is a “compelling governmental interest.” 383 Md. at 21, 857 A.2d at 31. In responding to this strong law enforcement interest, the majority eludes faithful application of the case law on the subject of “identity,” by carefully circumscribing its meaning. The majority reasons that “identity” includes only an individual’s name, age, address, and physical characteristics, but does not include “what [the] person has done.” 425 Md. at 598-99, 42 A.3d at 578. Based on this reasoning, the majority notes that the government can claim no legitimate interest in identifying an individual for the purpose of uncovering past misdeeds. Id. From that premise the majority holds that the Act is unconstitutional as applied to King because King’s DNA collection was superfluous: the identification interest already was served by the fingerprinting and photographing of King. 425 Md. at 599-601, 42 A.3d at 579-80.

On the majority’s first point, nothing in the law supports the majority’s restrictive definition of identity. In the context of the Fourth Amendment, the Supreme Court has made clear that law enforcement’s interest in identity extends to knowing whether a person has been involved in crime. See Hiibel v. Sixth Judicial Dist. Ct., 542 U.S. 177, 186, 124 S.Ct. 2451, 159 L.Ed.2d 292 (2004) (“Obtaining a suspect’s name in the course of a Terry stop serves important government interests. Knowledge of identity may inform an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder.”). The majority’s definition raises the rhetorical question: “Why law enforcement would want to know a person’s name, if not to know whether that person is linked to crime?”

*612On the second point, the majority essentially holds that DNA collection cannot displace traditional methods of identification because those traditional methods are less intrusive and in use effectively. 425 Md. at 600-01, 42 A.3d at 579-80. The Court of Appeals for the Ninth Circuit in Haskell characterized such reasoning as “a Luddite approach” to Fourth Amendment interpretation. 669 F.3d at 1063. “Nothing in the Constitution compels us to ... prevent the Government from using this new and highly effective tool [of identification] to replace (or supplement) older ones.” Id. Moreover, the Supreme Court has been clear in “repeatedly refusing] to declare that only the ‘least intrusive’ search practicable can be reasonable under the Fourth Amendment.” City of Ontario v. Quon, — U.S. —, —, 130 S.Ct. 2619, 2632, 177 L.Ed.2d 216 (2010) (quoting Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 663, 115 S.Ct. 2386, 132 L.Ed.2d 564 (1995)). Finally, as this Court recognized in Raines, “[i]t is not for us to weigh the advantages of one method of identification over another.” 383 Md. at 20, 857 A.2d at 30 (quoting Jones v. Murray, 962 F.2d 302, 308 (4th Cir.1992)).

Even assuming that the government’s strong interest in identifying perpetrators of crime is the only interest at stake in this case (which it is not), that interest, when balanced against the significantly diminished expectation of privacy attendant to taking a buccal swab of an arrestee, yields, in my view, an obvious answer to the question presented in this case. The swab of King’s inner cheek to extract material from which 13 DNA “junk” loci are tested to identify him is a reasonable search, and therefore permitted by the Fourth Amendment. I therefore would affirm the judgment of the Circuit Court for Wicomico County.

Judge WILNER authorizes me to state that he joins the views expressed here.

. It also is undisputed that law enforcement officials in the present case followed every one of the statutory and regulatory mandates of the Act when testing King’s DNA sample and making use of its results.