Maryland Court Strikes Down DNA Collection from Arrestees

The Maryland Court of Appeals has handed down a 5-2 decision in which it has declared that the collection of DNA from arrestees by state law enforcement officials is unconstitutional. The decision struck down the Maryland DNA Collection Act, which took effect in 2009, and expanded DNA collection to include those arrested for crime of violence, a attempted crime of violence, a burglary, or an attempted burglary. This ruling is at odds with two recent decisions from federal appellate courts which considered separate 4th Amendment challenges to DNA collection from arrestees. In 2011, in U.S. v. Mitchell, the 3rd Circuit upheld the federal DNA Fingerprint Act, enacted in 2006, which authorizes DNA collections from those arrested for federal crimes. Just this year, in Harris v. Kamala, the 9th Circuit upheld the California state law that authorized DNA collection from arrestees. These cases generally balance an asserted reasonable expectation of a right to privacy in DNA (arguing the general standard from Katz v. U.S.) and invoke a general 4th Amendment requirement of reasonable suspicion and probable cause to counter the argued need of law enforcement to obtain and use the DNA information in "non-individualized" manner. There can be two aspects of privacy in the DNA collection: the question of the collection procedure (generally, a cheek swab) and the separate question of the privacy interest in the genetic information provided by laboratory processing (currently not a full genomic readout, but only the use of FBI/CODIS standard of 13 genetic loci. Against these interests, the government typically argues the compelling state interest in solving crimes, viewed against the backdrop of procedural safeguards in these laws (expungement if no conviction, secure databases, minimal genetic information revealed). The Supreme Court denied a petition for certiorari in Mitchell (challenge to federal DNA collection statute); whether the Court will later take up an arrestee challenge to a state DNA collection law (as in this case) is unclear. At the nationwide level. the state DNA databases, at this point in 2012, generally mandate the inclusion of those convicted of felonies, at the very least, and may extend to lower level offenses, depending on the state; efforts continue to expand the databases to include arrestees.