Reaction to Maryland v. King

The Supreme Court decided Maryland v. King yesterday, holding that police can test the DNA of people arrested for "serious offenses."  My feelings on this case are mixed, largely as a result of the statute involved. I think that Scalia is correct to criticize the majority's characterization of the DNA collection as an identification tool, with the most damning part of the statute being the restriction that the DNA not be submitted to a database until the arrestee's arraignment.  This, combined with the time it takes for DNA to be analyzed casts serious doubts on whether DNA testing really serves this purpose of identification.

That said, there is some substance to the majority's argument that the DNA can be tested for purposes of identification.  It is my understanding that the testing of junk DNA markers constitutes a "gold standard" in identifying individuals and that a DNA database may have the potential to become a more accurate version of a fingerprint database.  Furthermore, I am not entirely convinced by the arguments that I have heard advanced by critics worried about familial identifications or the fear of some massive DNA database.  Familial identification is prohibited by the statute at issue in this case, so arguments that this case leads in that direction goes beyond the facts before the court.  Additionally, I fail to see how a DNA database is much more worrisome than a fingerprint database.

Most importantly, I don't see how much the Fourth Amendment can protect citizens from the scariest possibilities of DNA identification.  My DNA is something that the government could collect without any intrusion whatsoever.  If police get ahold of a glass I have recently drank from, they may be able to register my DNA profile from that glass without ever needing to intrude on my person and implicating my Fourth Amendment rights.  Granted, the program in King involves a more regulated system that is more likely to get an adequate sample, but the possibility remains for the government to covertly gather information about my DNA without any apparent violation of my Fourth Amendment rights.  I feel like this is the hypothetical situation that frightens people the most, and it may be up to statutes to protect people from any intrusion in this scenario since it seems to be a stretch to argue that the government's action in this scenario constitutes a "search" under the Fourth Amendment.  With this in mind, I think that Maryland's statutory safeguards are a silver lining of this opinion, and the Court's reliance on these safeguards in its opinion will hopefully prompt their adoption by other states.

My last thought on this case is to echo and emphasize Orin Kerr's prediction that this holding will probably not be limited to serious felonies.  The majority's overriding focus on identification of suspects, illustrated by its use of the non-serious arrests of Timothy McVeigh for a missing license plate and Joel Rifkin for speeding (p. 12) indicate that the majority is more concerned with identification of criminals than with the severity of the crime.  While the holding's language is limited to arrests for serious offenses, the logic of the opinion is in no way limited to this class of crimes.