In Maryland v. King, ___ U.S. ___ (June 3, 2013) the Court upheld the warrantless swabbing of individuals arrested for what the Court characterized as “serious” offenses. Left open by the Court’s decision are the questions of 1) what constitutes a serious offense; and 2) whether the warrantless seizure of DNA samples is permissible for individuals convicted of misdemeanor offenses, which, by definition, can result in incarceration of one year or less. Unfortunately, as the result of the Court’s sweeping language in the King decision, lower courts may have a difficult time in distinguishing between a “serious” offense justifying the warrantless sampling of DNA evidence and the routine misdemeanors for which hundreds of thousands of people are arrested for or convicted of every year in this country. Thus, what the Court apparently views as a non-intrusive law enforcement practice may have a much greater impact on the constitutional rights of individuals than the Court could have envisioned, a problem highlighted by Justice Scalia in his dissent.
The facts of King are straightforward. Mr. King was arrested in 2009 in Maryland for threatening a group of people with a firearm. As authorized by a Maryland law authorizing the collection of DNA from “felony arrestees,” his DNA sample was collected without a warrant. That DNA sample was found to match the DNA swab collected in an unsolved rape case from six years earlier and evidence from this match was used to convict Mr. King of the rape charge.
In upholding the warrantless seizure of Mr. King’s DNA, the Court went to great lengths to compare DNA sampling to the warrantless procedures undertaken by law enforcement when a person is arrested such as photographing and fingerprinting the arrestee or matching tattoos to determine gang affiliation. Repeatedly, however, the Court refers to “felonies,” “serious” offenses, “dangerous” offenses, and “serious” crimes. Curiously, while noting “people detained for minor offense cases turn out to be the most devious and dangerous criminals,” the Court also stated, “this is not to suggest any search is acceptable solely because a person is in custody.” Yet, the Court concludes with the blanket statement, “Upon these considerations the Court concludes that DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure.”
The problem with this blanket pronouncement is explained by Justice Scalia in his dissent:
When 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.” Make no mistake about it: As 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.”
In Florida, §943.325, Fla. Stat., permits law enforcement to take DNA swabs without a warrant for people: 1) arrested or convicted of all felonies; 2) arrested for certain specified misdemeanors; or 3) who are convicted of a misdemeanor and “committed to a county jail.” Since the Court in King did not address the legality of warrantless DNA swabs for misdemeanor convictions, it is important that your attorney is aware of these statutory distinctions and protects you from an unauthorized seizure of your DNA. Additionally, if you are convicted of a non-statutory misdemeanor which does not result in a jail sentence, you should not consent to a warrantless DNA swab. Failure to object to such sampling could result in a court concluding you consented to the swab.