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Supreme Court Grants Cert on Police Authority to Take a DNA Sample of an Arrestee; Ex Post Facto Challenge to Retroactive Application of the Sentencing Guidelines

On November 9, the Supreme Court granted certiorari in two criminal cases, Maryland v. King (No. 12-207), and Peugh v. United States (No. 12-62).  In King, the Court will decide "whether it violates the Fourth Amendment rights of an individual who is arrested and charged with a serious crime, but not convicted, for police to take an involuntary DNA sample. "  Peugh raises an Ex Post Facto challenge to a trial court's imposition of a criminal sentence based on federal sentencing guidelines in effect at the time of sentencing, where the criminal sentence imposed is longer than the guidelines had specified at the time the crime was committed.

The grant in King comes after Chief Justice Roberts had earlier blocked the ruling of the Maryland Court of Appeals finding a Fourth Amendment violation when police took a DNA sample of an individual who had not yet been convicted of a crime.

In Peugh, the case arises from a Circuit split in which, as stated in the cert petition, "Eight courts of appeals have held that the Ex Post Facto Clause is violated where retroactive application of the Sentencing Guidelines creates a significant risk of a higher sentence.  In the decision below, however, the Seventh Circuit has held that the Ex Post Facto Clause is never violated by retroactive application of the Sentencing Guidelines because the Guidelines are advisory, not mandatory."     

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