DNA evidence has come a long way since the O.J. Simpson case.  It has infiltrated the popular consciousness through television shows like “CSI” and others.  The awesome power of this technology to condemn, but also to frequently exonerate, is par for the course now, recognized and accepted by judges, juries and practitioners as a reality of the criminal justice system landscape.

Many states, prudently, have codified their methods for the collection and utilization of such evidence.  Maryland is one of them, having enacted the “Maryland DNA Collection Act”, Md. Code Ann., Pub. Safety Section 2-504.

But when exactly should this evidence be allowed to be taken?  And is there a line at which the Fourth Amendment’s prohibition against unreasonable searches and seizures comes into play?  There remain some unresolved questions.

There is no doubt that DNA technology is here to stay.  The United States Supreme Court explicitly recognized its efficacy in DA’s Office v. Osborne, 557 U.S. 52, 55-56 (2009), stating that DNA testing… “has an unparalleled ability both to exonerate the wrongly convicted and to identify the guilty”. 

Consistent with this holding, virtually all court challenges on constitutional grounds to DNA collection from persons already convicted of crimes have failed.

But 27 states and the Federal government have statues that also permit collection of DNA profiles from individuals arrested for, but not yet convicted of, certain classes of offenses.  The State of Maryland is one of these.  And the history of court challenges to the DNA sampling of mere arrestees has been less than clear, with a divergence of decisions on differing grounds.

The Supreme Court has decided to address this issue and on November 9th, 2012, granted a petition for a writ of certiorari in the case of State of Maryland v. Alonzo Jay King, Jr.

The facts of this cases are as follows:

Mr. King was arrested in 2009 on charges of first and second-degree assault.  Under the Maryland statute, an arrest for first-degree assault permits the State to take a DNA sample.  Such a sample was taken; a swab of the inside of Mr. King’s cheek for use in DNA testing within the guidelines of the State statute.

Mr. King was eventually found guilty of second-degree assault, but while awaiting this trial, his DNA profile was found to match DNA evidence obtained in another, previously unsolved rape investigation dating back to 2003.

On the basis of this match, Mr. King was indicted for the 2003 rape and was later convicted and sentenced to life in prison.

He appealed this conviction to the Court of Appeals of Maryland, arguing that the portion of the Maryland’s DNA Collection Act that permitted the sampling of arrestees violated the Fourth Amendment.  The Court of Appeals agreed and reversed the conviction finding that pre-conviction DNA testing was, in fact, a violation of Mr. King’s right to be free from unreasonable searches and seizures.

Maryland has now sought and obtained review by the United States Supreme Court.  It is a ruling worth waiting for as this term proceeds.