The Potential After-Effects of DeWolfe’s Implementation – Expanding Maryland v. King to Begin Testing All Arrestee DNA

By Michael Wein

There’s less than two weeks before the Maryland General Assembly adjourns sine die on April 7th. This poses an upcoming deadline for passing legislation complying with the Maryland Court of Appeals’ DeWolfe decision that criminal Defendants have a Constitutional right to representation in their initial bail determinations. The three main proposals are on the table, though a mixture of them is also possible. These proposals are (1) to have comprehensive and supposedly objective Preliminary bail determinations delegated to administrative Pretrial Services employees (that will effectively scrap the current system of review by a neutral magistrate, and thereby no Constitutional violations since no Counsel will be permitted), (2) an expansive and supposedly more expensive representation schema in place that will have full time defense attorneys representing defendants, and additional costs for judges, Court commissioners, courthouse security, etc., and (3) permitted some criminal defendants to affirmatively waive their right to Counsel for an initial appearance in order to get a pre-trial appearance before a Court Commissioner and release. (In the past day, after this was written but before being posted, the Senate Judicial Proceedings Committee favored by a 7-4 vote, Option 1, the Pretrial services approach.)

The role of new technology, now and in the near future, has been given strangely little public shrift in the current proposals. Such new technology will soon make it possible that arrestees for misdemeanors and traffic offenses are required to give an immediate sample of DNA for testing, for almost-instantaneous comparisons to the nationwide DNA database, to assist with identification and pretrial release conditions. This would be an extension of the Supreme Court’s 5-4 opinion just last year in the Maryland v. King DNA case, reversing the Maryland Court of Appeals decision.

King, a seminal Supreme Court case on new technologies, affirmed the Maryland Legislature’s enactment of a procedure that all arrestees for serious felonies (even those who are later acquitted or had charges dismissed) would be subject to a DNA cheek swab, what would ordinarily be a search protected under the Fourth Amendment. This decision reversed the Maryland Court of Appeals’ decision that the Act was unconstitutional. The problem from a Constitutional perspective, was as the State of Maryland successfully sought Certiorari, “Does the Fourth Amendment allow states to collect and analyze DNA from people arrested, but not convicted, of serious crimes?”

Yet, the concern from the King case was always from the Constitutional perspective, that prior precedents informing King’s constitutionality were that the Government’s search of DNA, extracted from a person without a warrant, could only be done for identification purposes under the special needs doctrine, similar to fingerprinting. If the primary purpose was for use in investigating a criminal case, then such a search must be unconstitutional. However, at the time of the DNA extraction from Alonzo King’s cheek swab (for charges he was later acquitted, but whose DNA was used to link an earlier cold case), it was about four months later that any testing was done of DNA results.

But that was in 2009. In 2013, when the King case came out, it was different. As argued in the Supreme Court Briefs and discussed extensively in oral arguments, the time for DNA tests to be run, was as noted Katherine Winfree arguing for the State of Maryland “our lab now is getting [DNA] results back between 11 and 17 days…” It was also assumed for argument purposes in the Supreme Court that it would be about 2 years timetable for immediate use of DNA testing for identification purposes. (It should also be noted that motives are important. For the Supreme Court case, the sooner that the Government could argue that DNA testing was immediate and ubiquitous for identification purposes, the more it would appear that Maryland Legislature’s law mandating the DNA searches of felony arrestees was constitutional.) Still, it’s clear that it’s a short amount of time of 2-5 years for this technology of instantaneous DNA results to be in ubiquitous use and the State of Maryland giving a timetable estimate of as soon as 2015. From the Supreme Court transcript:

“Justice Elena Kagan: Mr. Shanmugam, this seems to me a real distinction in this case as it’s been litigated. I take what the government is saying is something like: Give us 5 years and those won’t look very different. In other words, we will be able to do in 5 years time exactly what we can do with fingerprinting, except it will be, as Justice Breyer says, more accurate. So we are just about 5 years ahead of that, so give us a break.

Kannon K. Shanmugam [Counsel for King]: And my response to that would be that under the special needs doctrine, what is relevant is not how a system could conceivably operate; what is relevant is the primary purpose behind the program at issue. So if the government were to come back in 5 years’ time with a DNA testing program the primary purpose of which was pretrial supervision or identification, one of these other purposes that is being offered, then sure, the analysis would be different. That is simply a consequence of the fact that this special needs doctrine, unlike the rest of the Fourth Amendment, looks to purpose, namely the purpose of the program at issue.” [Emphasis Added]

The en banc Ninth Circuit, just this past Thursday, upheld a more expansive DNA collection database system than approved by the Supreme Court in Maryland v. King, mandating collection for all persons charged with felonies, or “wobbler” crimes that could be charged as either felonies or misdemeanors. As the Ninth Circuit recognized, in an unsigned per curium opinion, the 4-justice dissenting opinion of Scalia directly anticipated and foresaw the eventual implications of King, justifying the affirmance in Haskell v. Harris.

“The four dissenting Justices in King similarly recognized that there is no basis for limiting the Court’s holding to certain enumerated crimes. Describing the breadth of the majority’s reasoning, Justice Scalia explained in dissent that “[i]f one believes that DNA will ‘identify’ someone arrested for assault, he must believe that it will ‘identify’ someone arrested for a traffic offense.” King, 133 S. Ct. at 1989 (Scalia, J., dissenting). Justice Scalia thus reasoned that “[a]s an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.” Id. He predicted that “[w]hen there comes before us the taking of DNA from an arrestee for a traffic violation, the Court will predictably (and quite rightly) say, ‘We can find no significant difference between this case and King.’” Id.”

Although the Majority opinion by Justice Roberts did not deal directly with this concern, Justice Scalia’s dissent is highly incisive to the proposed legislative solutions responding to DeWolfe. Although in good time the Judiciary-based or “waiver” based proposals may adopt such wide-spread use of DNA testing, the creation of an administrative-run Pretrial Services, that would recommend all bail conditions, would almost certainly have such a DNA system adopted for the ostensible reasons of identification and pre-trial services conditions, as soon as the instantaneous DNA testing has been “Beta-tested.” Under Maryland law presently, this would include all serious criminal felony charges, but could just as easily include all arrestees as well. Some people may have little to no reservations against having all Marylanders subject to DNA being submitted as part of any standard arrest from anyone. Others, including Justice Scalia, have legitimate concerns about what will soon be the reality that persons can, “rightly or wrongly” be arrested for a crime, resulting in a mandatory DNA swab being given to the arrestee for comparison to exemplars from an ever-growing national database (and police officers being acutely aware that this will happen upon arrest).

The law, as I read it, already permits the swabs of DNA from arrestees on serious felonies, to be subject to instantaneous DNA testing for identification purposes. As conceded by the parties in King , which included the State of Maryland itself, the technology that would provide near instantaneous DNA identification is only 1-4 years away. The concern that I have not seen addressed in the proposal of establishing a new “statewide pretrial services” unit, however, is that it will create a system whereby all arrestees, would be ripe to be placed for identification and pre-trial release purposes, into the DNA database that was at the heart of King, but now exists only for those charged with serious felonies. If that’s the considered choice of the legislature, that’s one thing. But the natural and foreseeable consequences of the Pretrial “solution” to Dewolfe, is a greatly expanded DNA database collection system, once the immediate DNA results become a reality. The legislature’s “time-sensitive” concern of complying with DeWolfe should not be also invoked sub silencio to also permit a system that would immediately be suited for all arrestees to be subject to DNA testing for the identity and pre-trial services rationales that were the basis upon which Maryland v. King was ultimately upheld, though arguably as pointed out by Justice Kagan, a few years before being ready for primetime. There should be a more measured and considered debate on the subject of routine and mandatory DNA testing for all arrestees in the near future, as a consequential next step of adopting the Pretrial Services approach.