concluding that the search at issue violated the prisoner’s Fourth Amendment rights because “the State [did] not sufficiently establish[ ] that there [was] any individualized basis for the search, probable cause or some appropriate level of suspicion, that would justify any intrusion upon the [prisoner’s] constitutionally-protected privacy interest in his own body” (Bell, C.J., dissenting)
How later courts described this case
- concluding that the search at issue violated the prisoner’s Fourth Amendment rights because “the State [did] not sufficiently establish[ ] that there [was] any individualized basis for the search, probable cause or some appropriate level of suspicion, that would justify any intrusion upon the [prisoner’s] constitutionally-protected privacy interest in his own body” (Bell, C.J., dissenting)
- holding that the warrantless collection of DNA from "a certain group of convicted persons" was reasonable because "the minimal physical intrusion on the inmate, a person with a diminished expectation of privacy, is outweighed by the legitimate governmental interest in identifying persons involved with crimes, including vindicating those falsely convicted"
- concluding that “[although the intrusion of a buccal swab may be minimal in a physical sense, it certainly is great when the vast amount of personal and private information DNA contains is considered” (Bell, C.J., dissenting)
- opining that “[i]t is true, of course, that the DNA sample [collected] will be used to establish identity, but the principal purpose of establishing identity will be to provide evidence of criminality, evidence that will allow the police to establish probable cause to collect precisely the same evidence for use in court” (Wilner, J., concurring)
Written by the judges who cited it.
The opinion
WILNER, Judge,
concurring.
I concur in the judgment. I agree with the majority that the DNA collection law does not constitute an ex post facto law and I agree as well that it does not constitute or necessarily result in an unreasonable search or seizure, although that issue, to me, is a much closer one.
*50 As the Court points out, the taking of a swab from appellee’s cheek constituted a search or seizure within the meaning of the Fourth Amendment and its Maryland counterpart, Art. 26 of the Declaration of Rights. The State concedes as much, and properly so. The ultimate question is whether that search/seizure (or any similar collection of a DNA sample pursuant to the DNA collection law) is Constitutionally reasonable, and that ordinarily involves weighing the right of privacy, to be free from governmental intrusion, against any legitimate need of the Government to conduct the search.
In conducting that weighing process, courts have expressed the belief, and given great weight to it, that the intrusion is minimal and that its purpose is not to gather evidence but merely to establish identity. The majority adopts that view in this case. I have some difficulty with those assertions. It is true that the intrusion involved in actually collecting the sample — swabbing the cheek — is minimal when compared to other methods of harvesting bodily tissues or fluids, and I acknowledge that, ordinarily, the level of intrusion focuses on the method by which the information is obtained. Given the massive amount of deeply personal information that is embodied in the DNA sample, however, it seems to me that a proper analysis of the level of intrusion needs to take that as well into account. A person’s entire genetic makeup and history is forcibly seized and maintained in a government file, subject only to the law’s direction that it not be improperly used and the prospect of a misdemeanor conviction if a custodian willfully discloses it in an unauthorized manner. No sanction is provided for if the information is non-willfully disclosed in an unauthorized manner, though the harm is essentially the same. The Court seems to believe that taking that consideration into account is illogical. To me, not considering it is, at best, unrealistic, and, at worst, less than honest.
I doubt as well the premise that the purpose for collecting this information is not to discover evidence of criminality but merely to establish identity. It is true, of course, that the DNA sample will be used to establish identity, but the principal purpose of establishing identity will be to provide evidence *51 of criminality, evidence that will allow the police to establish probable cause to collect precisely the same evidence for use in court. The foundation upon which these laws rest, and the invocation of United States v. Knights, 534 U.S. 112 , 122 S.Ct. 587 , 151 L.Ed.2d 497 (2001) to sustain them, is that convicted criminals are more likely to have committed other crimes and are more likely to commit future crimes than the general population, and that collecting and storing their DNA will materially assist law enforcement agencies in solving crimes and perhaps deter those from whom the samples are taken from committing future crimes. In my view, it is, misleading even to suggest, much less hold, that this program is not designed for the predominant purpose of providing evidence of criminality. It clearly is.
1 prefer to be more honest about the matter. All of the law enforcement and correctional statistics demonstrate that convicted criminals tend to be recidivists and that many, if not most, people in prison are not there for their first offense— that they have committed crimes, often unsolved ones, before committing the crime for which they are incarcerated and that they are far more likely to commit future crimes than the general population or any other definable group in the general population. As a group, defined by their own judicially-determined conduct, they do constitute a special potential threat to public safety, even while in prison and certainly after their release. As a group, defined by their own judicially-determined conduct, they have a much reduced expectation of privacy. They are routinely fingerprinted and photographed upon arrest, and those fingerprints and photographs are stored and used for much the same purpose as the DNA samples will be used. If any interview following arrest is taped, those tapes may be preserved and used later for voice or photo identification. While in prison, they are subject to random searches, and their letters and other communications may be limited or monitored; while on probation or parole, they may be required to submit to urine testing and other intrusive monitoring. If they have committed certain kinds of sex crimes, they may be required to register with police *52 authorities for years after being released from incarceration or probation. If they are not U.S. citizens, they may be subject to swift deportation.
As does Judge Raker in her concurring opinion, I see this really as resting on the same basis as the collection and storage of fingerprints or “mug shot” photographs. The collection of DNA is much more intrusive because of the information contained in the DNA, but DNA is also a much more reliable identifier and thus better serves the same governmental interest that justifies collecting fingerprints and photographs. That, to me, is where the balance is in terms of reasonableness.