By: Kevin McCann, Associate Tech Editor

While technological innovation undoubtedly makes lives easier, that is not always the case for the justices of the Supreme Court when it comes to interpreting the Constitution. From arising 1st amendment issues with the introduction of online social media to 2nd amendment debates over the development of new firearms, the Supreme Court is routinely challenged to figure out how new technology should fit into legal doctrines and constitutional provisions drafted hundreds of years ago. Next month, the Supreme Court will have to yet again determine how a technological innovation should be applied to constitutional law.


The Supreme Court will hear oral arguments on whether the law enforcement practice of collecting DNA samples from individuals, who are arrested for but not yet convicted of violent crimes and other felonies, violates the 4th amendment. The samples are collected through a cheek swab of the arrestee’s mouth and then compiled into a national police database. With this database, law enforcement agencies can then attempt to match the DNA of the current arrestee with DNA collected in previous unsolved crimes.


This action arose in Maryland, where a man named Alonzo King was arrested in 2009 on charges of assault. Due to the severity of King’s felony charges, under Maryland Statute, King was required to have a DNA swab taken. Once the DNA profile was uploaded to the database, the law enforcement agency learned that King’s DNA matched evidence from an unsolved rape in 2003. The victim in the 2003 crime was unable to identify her attacker. However, with this new DNA match, a grand jury indicted King. After trying unsuccessfully to suppress evidence of the original DNA swab from his 2009 arrest, King was convicted of the rape charges and sentenced to life in prison.


Prior to this case came another situation in 2004 where the Maryland Statute’s cheek swab requirement was challenged. In Maryland v. Raines, an incarcerated felon was required to submit to the DNA cheek swab test. He was also matched in the criminal database and was charged with a prior unsolved sexual assault. When he sought to suppress the DNA cheek swab, the Maryland Court of Appeals founded that as an incarcerated individual, Raines “enjoy[ed] less liberty than that of ordinary citizens”, and therefore his 4th amendment rights were not violated.


However, King can be distinguished from Raines because the individual seeking to suppress evidence stemming from an unreasonable search and seizure in King was not incarcerated but rather only arrested. The Supreme Court has stated that the key to analyzing whether a search is appropriate under the Fourth Amendment is to take into consideration whether an individual has a ‘reasonable expectation of privacy’ as to the focus of the search and whether the government’s interest outweighs that expectation. Therefore the question emerges as to whether an arrested individual would be reasonable to expect a higher level of privacy over an individual that is already incarcerated, and whether that higher expectation level is enough to render the DNA swab an unreasonable search under the 4th amendment. Oral Arguments will be held on February 26.


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–          Maryland v. Raines, 857 A.2d 19 (Md. 2004)