Every hour, every person sheds 200,000,000 skin cells. Each of those cells holds a person's deoxyribonucleic acid—or, “DNA”— the genetic blueprint which makes each of us unique. No two people (save identical twins) share the same genetic makeup, and whenever someone moves or travels or walks, that person sheds DNA on the scene below and around them. DNA is shed onto anything touched, and it can even be transferred to a new location by the touching of a third party. Once shed, DNA can be traced back not only to the person whose unique profile it matches but also that person’s related family tree. Law enforcement can use family genealogy to isolate your DNA profile as a likely match to an unidentified sample.
The State of Maryland enacted the Maryland DNA Collection Act (“Act”) in 1994 to authorize the collection and storage of DNA to assist in identification in criminal investigations. Attorney’s Rene Sandler and Stephen B. Mercer brought a successful challenge to the constitutionality of the Act. In 2003, they convinced the Montgomery County Circuit Court that the State’s collection of Tony Raines’s DNA under the Act was an unconstitutional search and seizure. Despite the trial court, Maryland has since increased its power to collect and store a person’s DNA.
The Act was expanded in 1999 to allow the DNA collection of persons convicted of burglary and/or violent crimes. Raines had a qualifying 1982 armed robbery and was incarcerated for a conviction on a separate offense. Raines was therefore subject to DNA collection after the Act’s expansion such that the State could store his DNA. In 2002, a DNA sample stored by the State since 1996 was submitted to the State DNA database for analysis. Raines’s DNA was compared to that unidentified sample which was collected from a rape investigation. They matched. In 2003, the State obtained a search warrant for a new DNA sample from Raines to conduct another test. Again, the profiles matched; however, Raines’s attorneys argued that the 1999 collection of Raines’s DNA sample violated Raines’s Fourth Amendment protection from unreasonable searches and seizures. The trial court agreed.
The State challenged the trial court’s ruling and filed an interlocutory appeal. With support from the ACLU and public defenders, Sandler and Mercer argued on appeal that the taking of Raines’s DNA, without any suspicion of criminal wrongdoing, was an impermissible search and seizure, and the prospect that Raines’s DNA samples could be shared with other government agencies or used for other purposes was beyond the reasonable government scope of intrusion.
In November 2024, I spoke with Rene Sandler of Sandler Law, LLC, who said “20 years ago, we predicted the future broad sweep of DNA use and abuse across agencies and for more targeted purposes. We said then and say now, who’s next? Immigrants? Developmentally disabled? Any disfavored group? It's a slippery slope to requiring all Americans to submit DNA for national ID cards. That's why the issues in the Raines case and later cases remain of interest to the entire country.” Sandler and Mercer foresaw the domino effect of Raines that would lead to the State’s expansion of DNA collection.
Maryland’s highest appellate court reversed the trial court and held that both convicted and incarcerated persons have a diminished expectation of privacy in their own DNA, and the degree of intrusion of the 1999 collection procedure was therefore reasonable. In 2008, the Act was expanded further to allow law enforcement to collect the DNA samples of persons arrested for attempted burglary or violent crimes. The expansive 2008 amendment provides for the collection of a person’s DNA regardless of whether or not they are ultimately convicted, and even including those exonerated after a costly defense.
Alonzo King Jr. was indicted in 2009 on assault charges in Wicomico County, Maryland. Under the expanded provisions of the 2008 amendment to the Act, King was subject to DNA collection upon arrest. The sample matched a stored sample from an unsolved 2003 rape. The State procured a search warrant to seize King’s DNA to conduct a second analysis. King was eventually indicted for the 2003 rape.
Subsequent to his conviction and on appeal, King challenged the constitutionality of the State’s automatic DNA collection of arrestees. King was represented by the Maryland Office of the Public Defender and, seeing parallels with Raines, Mercer joined the case. The Maryland Court of Appeals ruled the collection of arrestees’ DNA unconstitutional.
The Supreme Court of the United States granted certiorari to consider the constitutionality of the Act. On direct appellate review, the Supreme Court held that DNA collection is like fingerprinting, that it is not so intrusive as to constitute a violation of an arrestee's diminished expectation of privacy. As if an echo of Sandler and Mercer’s warning in Raines, the King dissent warned that the advancement of DNA technology “demonstrates that it may one day be possible to design a program that uses DNA for a purpose other than crime-solving—not that Maryland has in fact designed such a program today.” (Justice Scalia, joined by Justices Ginsburg, Sotomayor, and Kagan, dissenting). The dissent reasons that, “If one believes that DNA will ‘identify’ someone arrested for assault, he must believe that it will ‘identify’ someone arrested for a traffic offense.”
Since King, in 2013, states throughout the country have implemented compulsory DNA collection laws of varying scope and breadth. Some mandate the DNA compilation of all or a subset of persons convicted of a crime, others of people arrested by police. Where collection extends to individuals arrested by police, states are divided as to application only to felony arrestees, or whether collection extends to people arrested for misdemeanors. Already, many states have even extended the collection to juveniles arrested by police. In November 2024, I spoke with Stephen B. Mercer of RaquinMercer, LLC, who said “the relentless expansion of law enforcement DNA databanks has crossed over to information-rich private genealogy databanks. Today, without a national discussion or meaningful regulation, the functional equivalent of a national DNA databank exists.”
Comments