October 2013 29
Maryland v. King: P T M I C P C
D
An Exchange Between Greg Brower & Norman Reimer
Maryland v. King: Textualism Meets Reason
By Greg Brower*
Introduction
Many Supreme Court observers, including no less than
Justice Samuel Alito himself, have described Mary-
land v. King1 as perhaps the most important criminal
procedure case that the Court has decided in decades.2 While
this may well be true, the question presented to the Court was
actually quite simple: Is the warrantless collection of DNA
from arrestees unreasonable under the Fourth Amendment?
In answering that question in the negative, the Court argu-
ably did nothing more than apply the plain text of the Fourth
Amendment to an increasingly common fact of modern law
enforcement life—the collection of DNA. However, the 5-4
split among the Justices suggests that the majority’s conclusion
was not so obvious to everyone. Nevertheless, it seems that, all
things considered, the majority got it right.
I. C B
In 2003, a stranger concealing his identity broke into
the home of a woman in Maryland and raped her. She quickly
reported the attack, submitted to a rape exam, and a DNA
sample was obtained, analyzed, and entered into the Maryland
state DNA database. No match was immediately found. Several
years later, in 2009, one Alonzo King was arrested in Maryland
on assault charges unrelated to the 2003 rape. Pursuant to
Maryland law,3 a sample of his DNA was taken by means of a
cheek, or buccal, swab. at DNA sample was also analyzed and
entered into the Maryland database, and was found to match
the sample from the 2003 rape investigation. After a Maryland
grand jury indicted King on rape charges, he pled not guilty,
and eventually moved the trial court to suppress from evidence
the results of his post-arrest DNA sampling. at motion was
denied and King was ultimately convicted of the rape.
On appeal, a divided court reversed the trial court’s deci-
sion as to the admissibility of the DNA evidence, ruling that the
State’s collection of King’s DNA upon arrest without a warrant
violated his Fourth Amendment right against unreasonable
search.4 Maryland’s petition to the United States Supreme
Court for a writ of certiorari was granted, oral argument was
heard on February 26, 2013, and on June 3, 2013, in one of
the most eagerly anticipated decisions of the term, a slim 5-4
majority of the Supreme Court reversed the Maryland Court
of Appeals, deciding that the Maryland law did not violate
.....................................................................
*Greg Brower is a member of the Executive Committee of e Fed-
eralist Society’s Criminal Law & Procedure Practice Group. He is
a partner in the law rm of Snell & Wilmer L.L.P., and previously
served as United States Attorney for the District of Nevada.
the Fourth Amendment. Justice Kennedy wrote for the Court,
and was joined by Chief Justice Roberts and Justices omas,
Breyer, and Alito. An unfamiliar foursome in Justices Scalia,
Ginsburg, Sotomayor, and Kagan dissented.
II. M’ DNA L S L O
J
Maryland’s DNA law, known as the Maryland DNA Col-
lection Act, was passed in 2008, and authorizes Maryland law
enforcement authorities to collect a DNA sample from anyone
charged with a crime of violence or an attempt to commit a
crime of violence.5 Under the Act, a DNA sample, once taken,
may not, without consent, be processed in a database before the
arrestee is arraigned.6 In the event that the arrestee is not bound
over for trial, is not convicted, has his conviction reversed on
appeal, or is pardoned, the DNA sample must be destroyed. e
Act also limits the way in which information from the DNA
sample can be added to the state’s DNA database and how it
may be used. Specically, the Act makes clear that only DNA
records that directly relate to the identication of individuals
may be collected and stored, and that no purpose other than
identication is permissible.7
Maryland’s DNA law is not unique. All fty states require
the collection of DNA from felony convicts.8 At the time of
the Supreme Court’s decision in Maryland v. King, twenty-eight
states and the Federal Government had adopted laws similar
to Maryland’s, authorizing the collection of DNA from some
or all arrestees.9 Indeed, the prevalence of such laws around
the country caused the Court, in deciding Maryland v. King,
to acknowledge that “[a]lthough those statutes vary in their
particulars, such as what charges require a DNA sample, their
similarity means that this case implicates more than the specic
Maryland law. At issue is a standard, expanding technology
already in widespread use throughout the Nation.”10 With that,
the Court signaled its intent to render a decision not limited to
the particular state law in question, but broad enough to address
the issue of DNA collection upon arrest generally.
III. T S C’ A F
Before embarking upon its legal analysis of the case and
issue at bar, the Court, with Justice Kennedy writing for the
majority, observed that the “utility of DNA identication in
the criminal justice system is already undisputed,” and that “law
enforcement, the defense bar, and the courts have acknowl-
edged DNA testing’s ‘unparalleled ability both to exonerate the
wrongly convicted and to identify the guilty.’”11 e Court then
set about to choose an analytical framework for deciding the
issue, noting that “[a]lthough the DNA swab procedure used
here presents a question the Court has not yet addressed, the
framework for deciding the issue is well established.”12 After
reciting the familiar language of the Fourth Amendment, the
Court conrmed that the collection of DNA incident to arrest
