As promised, I'd like to address the Supreme Court's controversial holding in King v. Maryland. Truth be told, the analysis is rather straightforward and ho-hum. Unlike the Court's holding in United States v. Jones, which turned-back-the-clock on Fourth Amendment analysis, the Court's holding in King applies a traditional, noncontroversial analysis. The Court restates its earlier assertion in Illinois v. McArthur: "when faced with special law enforcement needs, diminished expectations of privacy, minimal intrusions, or the like, the Court has found that certain general, or individual, circumstances may render a warrantless search or seizure reasonable." The Court then explains that (1) a buccal swab for DNA is a minimally intrusive search; and (2) upon the arrest of individuals for a "serious crime," law enforcement officers collect buccal swabs for a special purpose: identifying arrestees.
If only the Court was correct that the police collect DNA to "identify" arrestees. If that were the case, the collection of DNA upon arrest would be little different than the collection of fingerprints or the taking of booking photos. However, as Justice Scalia points out in his dissent, the police do not collect DNA to identify arrestees; they collect DNA for the sole purpose of solving unsolved crime. Solving crime is most definitely not a "special need" of law enforcement; it is the entire purpose of law enforcement. If the need to solve unsolved crimes justifies an exception to the warrant requirement of the Fourth Amendment, there is no longer a purpose to the Fourth Amendment. The Court understands this, which is why the Court adopts the fictitious notion that DNA is collected for "identification."
It is true, of course, that arrestees have a diminished expectation of privacy and that this affirmed policy of DNA collection only applies to arrestees of "serious crimes." We're not living in Gattaca yet!
However, as Justice Scalia points out in his dissent, the fact that this policy only affects those arrested for "serious crime" is somewhat misleading. It is already the practice in all 50 states to collect DNA swabs of all individuals convicted of a felony offense. Thus, those individuals guilty of committing a "serious crime" were already required to give up their DNA, prior to the Court's holding in King. The only individuals who will be affected by this holding, therefore, are individuals who were arrested, but not convicted. That's right: the Court has gone out of its way to adopt a position that law enforcement may collect DNA from individuals who were either: (a) wrongfully arrested; (b) were arrested without enough evidence to convince a jury beyond a reasonable doubt that the charged crime was committed; or who (c) negotiated and/or litigated a resolution, resulting in something less than a conviction.
This leads to an interesting potential problem. Prior to the adoption of a policy of collecting DNA samples from all individuals arrested for "serious crime," DNA profiles were uploaded into CODIS only when: (1) a DNA sample was collected pursuant to a DNA swab after conviction of a felony offense; (2) a DNA sample was collected pursuant to a lawful warrant, or the consent of the individual swabbed; or (3) when a DNA sample was collected from the scene of a crime. Thus, prior to this new policy, when investigators received a "CODIS hit" indicating that a known DNA sample matched to an unknown DNA sample collected from a crime scene, there wasn't much avenue to litigate the basis of the initial "CODIS hit," because the source of the known DNA sample was only collected pursuant to a fairly controlled process.
However, now that law enforcement may collect DNA samples upon arrest and upload the samples into CODIS, there is a far greater likelihood that some DNA samples will make their way into CODIS based upon unlawful arrests. This poses quite a problem. Typically, after receiving a "CODIS hit," law enforcement will receive a warrant to collect a new DNA swab of the defendant, which they will then compare to the DNA sample taken from the crime scene, to confirm the "CODIS hit." The prosecution of the case will hinge upon the second, controlled DNA test. The warrant to collect the DNA for this second test is based upon the probable cause generated by the initial "CODIS hit." However, if the initial "CODIS hit" is the result of a DNA swab that was collected pursuant to an unlawful arrest in violation of the 4th Amendment, then any subsequent investigation based upon that "CODIS hit" is tainted.
This potential problem will certainly add to the complexity of some criminal litigation. For instance, it is conceivable that an individual wrongfully arrested in Chicago, Illinois will generate a "CODIS hit" for a crime committed in Boca Raton, Florida. The litigation in Palm Beach County will partly depend upon the validity of police conduct in Cook County, Illinois, and would conceivably require Palm Beach County prosecutors to fly-in out of state law enforcement officers to testify in a suppression hearing.
What's more, the already back-logged CODIS system will now have to bear the burden of analyzing what is sure to be an influx of millions of new DNA samples. This will undoubtedly result in delays in receiving bonafide "CODIS hits."
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