King v. State

• Decision Date: 18 May 2012
• Docket Number: No. 68,Sept. Term, 2011.,68
• Parties: Alonzo Jay KING, Jr. v. STATE of Maryland.
• Court: Maryland Court of Appeals

425 Md. 550

42 A.3d 549

Alonzo Jay KING, Jr.

v.STATE of Maryland.

No. 68, Sept. Term, 2011.

Court of Appeals of Maryland.

April 24, 2012.

Reconsideration Denied May 18, 2012.

Unconstitutional as Applied

MD Code Public Safety, § 2-504(a)(3).

Celia Anderson Davis, Assistant Public Defender (Paul B. DeWolfe, Public Defender, Baltimore, MD), on brief, for Appellant.

Robert Taylor, Jr., Asst. Atty. Gen. (Douglas F. Gansler, Atty. Gen. of Maryland, Baltimore, MD), on brief, for Appellee.

Sandra K. Levick, Tara Mikkilineni, David A. Taylor, Public Defender Service for the District of Columbia, Washington, DC, David Rocah, ACLU of Maryland Foundation, Baltimore, MD, for Amici Curiae brief of the Public Defender Service for District of Columbia and American Civil Liberties Union of Maryland in Support of Appellant, Alonzo J. King, Jr., urging reversal.

Argued before BELL, C.J., HARRELL, GREENE, ADKINS, BARBERA, ALAN M. WILNER, (Retired, Specially Assigned), and DALE R. CATHELL, (Retired, Specially Assigned), JJ.

HARRELL, J.

We consider here facial and as-applied constitutional challenges to that portion of the Maryland DNA Collection Act (the “Act”) that purports to authorize State and local law enforcement authorities to collect DNA ¹ samples from individuals who are arrested for a crime of violence,² an attempted crime of violence, a burglary, or an attempted burglary. Maryland Code (2003, 2011 Repl.Vol.), Pub. Safety Art., § 2–504(3). Appellant, Alonzo Jay King, Jr., was arrested in 2009 on first- and second-degree assault charges. Pursuant to § 2–504(3) of the Act, King's DNA was collected, analyzed, and entered into Maryland's DNA database. King was convicted ultimately on the second-degree assault charge but, pending his trial on that charge, his DNA profile generated a match to a DNA sample collected from a sexual assault forensic examination conducted on the victim of an unsolved 2003 rape. This “hit” provided the sole probable cause for a subsequent grand jury indictment of King for the rape. A later-obtained search warrant ordered collection from King of an additional reference DNA sample, which, after processing and analysis, matched also the DNA profile from the 2003 rape. King was convicted of first-degree rape and sentenced to life in prison.

Although previously we upheld the constitutionality of the Act, as applied to convicted felons, in State v. Raines, 383 Md. 1, 857 A.2d 19 (2004), the present case presents an extension of the statute, not present in Raines. Thus, we evaluate here rights given to, and withdrawn from, citizens who have been arrested, including the right to be free from unreasonable searches and seizures. Under the totality of the circumstances balancing test, see United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001), we conclude, on the facts of this case, that King, who was arrested, but not convicted, at the time of his first compelled DNA collection, generally has a sufficiently weighty and reasonable expectation of privacy against warrantless, suspicionless searches that is not outweighed by the State's purported interest in assuring proper identification of him as to the crimes for which he was charged at the time. The State (through local law enforcement), prior to obtaining a DNA sample from King following his arrest on the assault charges, identified King accurately and confidently through photographs and fingerprints. It had no legitimate need for a DNA sample in order to be confident who it arrested or to convict him on the first-or second-degree assault charges. Therefore, there was no probable cause or individualized suspicion supporting obtention of the DNA sample collection for those charges. We conclude that the portions of the DNA Act authorizing collection of a DNA sample from a mere arrestee is unconstitutional as applied to King. Although we have some trepidation as to the facial constitutionality of the DNA Act, as to arrestees generally, we cannot exclude the possibility that there may be, in some circumstances, a need for the State to obtain a DNA sample to identify an arrestee accurately.

I. Factual and Procedural Background

The tale of this case began on 10 April 2009, when appellant was arrested in Wicomico County, Maryland, on first- and second-degree assault charges unrelated to the rape charge underlying the prosecution of the present case.³ Prior to the disposition of the assault charges, because King was charged with a crime of violence, the Act authorized collection of a DNA sample. Personnel at the Wicomico County Central Booking facility used a buccal swab to collect a DNA sample ⁴ from King on the day of his arrest.⁵ The sample was received and processed by the Maryland State Police Forensic Sciences Division and later analyzed by a private vendor laboratory. On 13 July 2009, the DNA record ⁶ was uploaded to the Maryland DNA database. Detective Barry Tucker of the Salisbury Police Department received notice from the State Police, on 4 August 2009, that there had been a “hit” on King's DNA profile in an unsolved rape case.

The DNA database “hit” identified King's DNA profile as a match to a profile developed from a DNA sample collected in a 2003 unsolved rape case in Salisbury, Maryland. In that case, on 21 September 2003, an unidentified man broke into the home of Vonette W., a 53–year–old woman. The man, wearing a scarf over his face, a hat pulled over his head, and armed with a hand gun, entered Vonette W.'s bedroom, and ordered her not to look at him. While holding the gun to her head, he raped Vonette W. After the rape, he left with Vonette W.'s purse. Vonette W. called immediately her daughter for help. Salisbury Police officers arranged for the victim to be transported to Peninsula Regional Medical Center, where she underwent a sexual assault forensic examination. Semen was collected from a vaginal swab. The swab was processed and the DNA profile uploaded to the Maryland DNA database. No matches resulted at that time. Vonette W. was unable to identify the man who attacked her other than to say that he was African–American, between 20 and 25 years old, five-foot-six inches tall, and with a light-to-medium physique. Police searched the area around the victim's home and conducted interviews, but were unable to identify the attacker.

Detective Tucker presented the 4 August 2009 DNA database “hit” to a Wicomico County grand jury which, on 13 October 2009, returned an indictment against King for ten charges arising from the crimes committed against Vonette W., including first-degree rape.⁷ The DNA database “hit” was the only evidence of probable cause supporting the indictment. On 18 November 2009, Detective Tucker obtained a search warrant and collected a second buccal swab from King. The second buccal swab matched also the sample collected from Vonette W. during the 2003 sexual assault forensic examination.

King filed in the Circuit Court for Wicomico County an omnibus motion that included a request to suppress evidence obtained through an illegal search and seizure.⁸ On 12 February[425 Md. 559]2010, the Circuit Court held a hearing on the motion. The thrust of King's argument was that the DNA Act could not survive scrutiny under the Fourth Amendment and therefore King's arrest was invalid.⁹ He argued also that the State did not collect King's first DNA sample in accordance with the procedures specified by the DNA Act and, therefore, that the indictment for the charges arising from the 2003 rape was invalid. The hearing judge solicited memoranda of law on the illegal search-and-seizure issue raised at the hearing.¹⁰

On 26 February 2009, the hearing judge issued a memorandum opinion denying King's motion to suppress. The memorandum opinion upheld the constitutionality of the Maryland DNA Collection Act's authorization to collect DNA from arrestees, citing to this Court's holding in State v. Raines, 383 Md. 1, 857 A.2d 19 (2004), and concluded that the arrest of King on the 2009 assault charges and seizure of his DNA were presumed lawful; therefore, the defense bore the burden to prove that the warrant for the second DNA sample was invalid. The judge noted the analysis in Fitzgerald v. State, 153 Md.App. 601, 638, 837 A.2d 989, 1010 (2003) (citing Franks v. Delaware, 438 U.S. 154, 160, 98 S.Ct. 2674, 2678, 57 L.Ed.2d 667, 675 (1978)), aff'd384 Md. 484, 864 A.2d 1006 (2004), which lead to a conclusion that when a defendant challenges a warrant outside of its “four corners,” the burden shifts to the defendant to demonstrate, by a preponderance of the evidence, that the State's supporting factual allegations to obtain the warrant are tainted by “deliberate falsehood or with reckless disregard for the truth.” Because King did not allege or present evidence of falsehood or reckless disregard for the truth, the hearing judge concluded King had not met his burden under Franks.

On 26 March 2010, the same judge presided over a second hearing on King's motion to suppress in order to allow King to present evidence that the warrant was based on falsehood or reckless disregard for the truth. King called Michelle Groves, custodian of the Maryland State Police Forensics Division Crime Lab, as a witness. In an attempt to show that the State could not prove that all predicate requirements for collection of a DNA sample under the Maryland DNA Collection Act (i.e., collection must be completed by an approved person ¹¹) were observed and therefore the warrant based on that sample was invalid, King questioned Groves about the handling and custody of the first DNA sample. Groves could not provide any records of the training or qualifications of the person who collected King's first DNA sample and could not provide affirmative evidence that King was given a required notice about the Act's expungement provisions.¹² The State countered that King had not adduced any evidence of error or irregularity in the DNA collection procedures. The...