Does the Fourth Amendment allow law enforcement to gather an arrestee’s genetic sequence and compare it with a large FBI database of genetic material gathered from old, unsolved crimes?
A reader asked me to do an analysis of Maryland v. King, a recent (June 3, 2013) Supreme Court case concerning DNA sequencing and law enforcement. It was right before Leaguefest so I deferred doing it. King got some press earlier this month, with some Court watchers either hailing or fretting about a “new era” for law enforcement. Hey, I like hyperbole as much as the next writer. Still, I’m glad that I read the case, for many reasons. Not the least of which is this introduction from the syllabus:
Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Breyer, and Alito, JJ., joined. Scalia, J., filed a dissenting opinion, in which Ginsburg, Sotomayor, and Kagan, JJ., joined.
So once again, let’s be sure to take the concept of who is a “conservative” Justice and who is a “liberal” Justice with big rocks of salt. “Liberal” versus “conservative” is simply an inadequate metric to evaluate the Nine and how they behave, except for the Mother Of All Supreme Court Issues.
Good Legal Writing
The first big reason to be excited about Maryland v. King is the writing. Good legal writing should not be, as popular myth would have it, abstruse, convoluted, and elevated such that only lawyers can decipher it. Good legal writing is persuasive. This typically means it has to straddle the line between intellectual sophistication so as to be logically coherent and true to the jargon and precedent-laden ornaments of law, and the simple, direct, and powerful language that conveys moral weight and understanding. And both the majority and the dissent are powerful, persuasive, and polished exemplars of the craft.
No one on the Supreme Court has ever written the way Antonin Scalia writes. He’s the Dean of the Court and the truth is that no matter how many opinions he writes that I think reach the wrong conclusion, I’m going to miss him very much from the moment they carry him out of that building feet first, which is the only way I can conceive of his seat becoming vacant. Love him, hate him, or sometimes a little of both, there is little doubt that when Justice Scalia gets a good head of steam built up, there’s nothing else on the books like it. He is blunt and sarcastic and manifestly unafraid to demonstrate intellectual disdain for opinions of his Brother and Sister Justices with which he disagrees. Justice Scalia writes with a sneer, but you never have any doubt what he’s sneering at. And sometimes, you sneer along with him.
Conversely, Anthony Kennedy is a much more traditional, modern sort of writer. He adopts a plain, seemingly disinterested tone to demonstrate objectivity and logic. He puts tremendous care into the framing of an issue, both factually and legally, for Justice Kennedy knows, as do most masters of contemporary legal writing, that the framing of an issue is where an undecided reader’s sympathy is won and lost. Justice Kennedy’s measured and nuanced approach is perhaps not so colorful as his more notorious Brother Justice but let the traditionalism of his style fool you not: he is at the very top of the craft. How he writes is how it’s taught. And for good reason.
Not to mention, Justice Kennedy has managed to place himself at the fulcrum of the bulk of the difficult decisions facing our legal system today. It would be fair to say that for nearly a decade, Anthony Kennedy has held the balance of power on the Supreme Court. To get an insight into how he thinks is to have the best available windsock for new developments in the law.
Here Comes The Science
DNA sequencing used to be a laborious, time-consuming, and expensive process. Depending on your definition of those terms, perhaps it still is. But there’s no question that it is whole lot cheaper, easier, and faster than it used to be, say, ten years ago.
A buccal swab is a procedure in which a cotton swab or a paper filter is run through the inside of a person’s cheek. Biological material gathered from this portion of the body readily yields the same rich DNA content as found in a blood sample, and without pain, invasiveness or needles.
The Wicomico County, Maryland sheriff’s department routinely conducts buccal swabs on arrestees. The information thus gathered is, after a time, stored in multiple archives. It does not ask for permission or obtain a warrant before conducting these buccal swabs. Inherent in the nature of a buccal swab is the insertion of the swab or filter into an arrestee’s mouth. You will have to decide for yourself if this constitutes an “invasive procedure.”
Two of those archives are maintained by the FBI: CODIS and NDIS. Other archives are maintained by local law enforcement agencies, including as relevant in this case, an archive maintained by the Maryland State Police.
CODIS is an archive of DNA samples taken from convicts and arrestees whose identities are already known. However, this segment of the archive does not, itself contain information identifying the DNA donor. That information must be gathered by reference back to the local law enforcement agency that gathered the sample in the first place.
NDIS relevant to our case consists of unidentified samples, taken from crime scenes (most often but not always rapes). These are also related back to local law enforcement from which the samples are gathered.
Cold Case, Hot Case
In 2003, a woman in Wicomico County was raped after an armed burglar broke in to her home. The victim could not identify her attacker, but a rape kit yielded DNA sample. That sample went into a Maryland State Police archive and from there found its way into NDIS.
Alonzo King was arrested on April 10, 2009 for brandishing a shotgun in Wicomico County. As part of his in-processing for jail following his arrest, he underwent a buccal swab. Three days later, he was arraigned for the weapons charge. On April 23, 2009, King’s buccal swab was received by the Maryland State Police’s Forensic Sciences Division. It was sent to a lab for testing on June 25, 2009 and the results were available on July 13, 2009. At that time, King’s DNA was entered into an archive maintained by the Maryland State Police and shared with CODIS.
On August 4, 2009, King’s DNA profile was matched to the DNA sample from the 2003 rape in NDIS. Shortly thereafter, he was indicted for the rape. A warrant issued and a second buccal swab of King was conduct, which again matched the DNA sample from the rape. King pled not guilty, moved to suppress the DNA evidence, lost, was convicted of the 2003 rape, and sentenced to life in prison without the possibility of parole.
His suppression motion, based on the grounds that the buccal swab violated the Fourth Amendment and thus so did all of the other evidence stemming from it, is what the Supreme Court reviewed this Term.
This Is A No-Brainer, Right?
As we know from the syllabus, the Supreme Court decided, by a 5-4 vote, that the buccal swab did not violate the Fourth Amendment. The majority opinion indicates that DNA is a very useful identification tool (which it is), and that questions about whether a search is “reasonable” under the Fourth Amendment requires a balancing of a) the degree of importance of the government’s need to gather information and the efficacy of the means used, against b) the intrusiveness of the means of gathering information and the reasonable expectation of privacy of the litigant challenging the governmental activity.
Framed thus, it’s kind of a no-brainer. Every one of those four issues tips heavily in favor of admitting the buccal swab into evidence.
Obviously, the detection of violent criminals like rapists is a very important if not compelling governmental activity. There is, particularly in the case of a cold rape case, likely no other evidence available to identify the suspect other than the genetic information harvested from a rape kit.
Justice Kennedy indicates that the use of DNA to identify a prisoner is a perfectly permissible thing to do – almost perfectly analogous to fingerprinting. (Hold that thought, fingerprinting and identification, in the back of your mind – it’ll be important in a few moments.) The police, Kennedy opines, can use this sort of biometric data to identify arrestees. They need to know, for instance, if the person they have in custody has a history of violence, perhaps violence committed in some other jurisdiction.
DNA evidence is indeed remarkably accurate at identifying people. If the rape kit sample is good, then it can pinpoint to an astronomical degree of accuracy a genetic match with some other sample. And really: after learning that Alonzo King’s DNA matched the DNA harvested from the rape kit not once but twice, do you have even the remotest doubt that Mr. King was, in fact, actually the rapist? At minimum, this is an entirely reasonable conclusion to reach: we have been given no information to suggest that the DNA from the rape kit was somehow improperly harvested, stored, corrupted, or contaminated.
I mentioned before that you’d have to decide for yourself whether the buccal swap is “intrusive” at all. Justice Kennedy seems undecided on this point. Taking fingerprints is not intrusive at all, but then nothing goes in to the body. A buccal swap has something that looks like a Q-tip brush up against the inside of a person’s cheek. So it’s in the mouth, for a few seconds. If you think this is intrusive, you’ll probably have to agree that the degree of intrusion is not large. It’s not an anal probe.
But then again, what if it were? There is no doubt at all that arrestees have minimal if any expectations of any privacy whatsoever. Consistent with the Constitution, when booking an arrestee into jail, the police can literally look up inside an arrestee’s ass. That’s a jail booking, not a prison booking. (Observant readers will note that Florence v. Burlington County was a majority opinion by Justice Kennedy.)
Given all this, the constitutional balancing test appears entirely lopsided. An easy call: no Fourth Amendment violation with the buccal swab, conviction upheld. If you read only Justice Kennedy’s majority opinion, you’d wonder why the Supreme Court would have bothered with something so simple at all.
Cause For Hope In Another Context
So we get to the dissent. And this is the second reason I’m glad I read the case – not just for the contrast in persuasive writing styles, but for the wealth of fantastic quotes that relate to something else happening in the world today. Let’s just take a look at some of Justice Scalia’s immensely quotable language:
The Court alludes at several points (see ante, at 11, 25) to the fact that King was an arrestee, and arrestees may be validly searched incident to their arrest. But the Court does not really rest on this principle, and for good reason: The objects of a search incident to arrest must be either (1) weapons or evidence that might easily be destroyed, or (2) evidence relevant to the crime of arrest. See Arizona v. Gant, 556 U. S. 332–344 (2009); Thornton v. United States, 541 U. S. 615, 632 (2004) (Scalia, J., concurring in judgment). Neither is the object of the search at issue here.
The bulk of Scalia’s dissent points out that indeed, King’s DNA sample was run through NDIS and not CODIS, meaning the search was for an already-identified DNA sample (King, in custody for the firearms brandishment charge) against samples derived from any unsolved crime. There was no particular reason to think that King’s DNA would match any DNA sample at all in NDIS, so this was a suspicionless search, much less a warrantless one as to at least the first buccal swab.
Furthermore, while it’s theoretically possible that the police could have run King’s buccal swab against CODIS for identification purposes, that’s not what they actually did. Scalia points out that indeed, doing so was actually contrary to Maryland law:
Surely, then—surely—the State of Maryland got cracking on those grave risks [of identifying a potentially violent inmate and gathering information for a bail hearing] immediately, by rushing to identify King with his DNA as soon as possible.
Nothing could be further from the truth. Maryland officials did not even begin the process of testing King’s DNA that day. Or, actually, the next day. Or the day after that. And that was for a simple reason: Maryland law forbids them to do so. A “DNA sample collected from an individual charged with a crime . . . may not be tested or placed in the statewide DNA data base system prior to the first scheduled arraignment date.” Md. Pub. Saf. Code Ann. §2–504(d)(1).
* * *
This places in a rather different light the Court’s solemn declaration that the search here was necessary so that King could be identified at “every stage of the criminal process.” Ante, at 18. I hope that the Maryland officials who read the Court’s opinion do not take it seriously. Acting on the Court’s misperception of Maryland law could lead to jail time. See Md. Pub. Saf. Code Ann. §2–512(c)–(e) (punishing by up to five years’ imprisonment anyone who obtains or tests DNA information except as provided by statute).
The point was not to identify the man in custody, the point was to identify the rapist, and by extension every other unknown person whose genetic sequences are stored in NDIS.
The government sticks a medical device into someone, gathers private genetic information about him, and uses that information with not even a whit of suspicion whatsoever of the commission of a prior crime, much less a warrant issued upon a showing of probable cause. The closest analogy to this that Justice Scalia came up with reaches back to pre-Revolutionary times in the form of general warrants and writs of assistance:
The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment. Whenever this Court has allowed a suspicionless search, it has insisted upon a justifying motive apart from the investigation of crime.
Searches done without any particularized supsicion, Scalia argues, are strictly limited and are simply not permissible for ordinary crime detection:
Although there is a “closely guarded category of constitutionally permissible suspicionless searches,” [Chandler v. Miller, 520 U. S. 305, 308 (1997)], at 309, that has never included searches designed to serve “the normal need for law enforcement,” Skinner v. Railway Labor Executives’ Assn., 489 U. S. 602, 619 (1989) (internal quotation marks omitted). Even the common name for suspicionless searches—“special needs” searches—itself reflects that they must be justified, always, by concerns “other than crime detection.” Chandler, supra, at 313–314.
All of which gives heart for the issue of the NSA looking in to domestic metadata on rubber-stamp warrants – even if we take at face value recent government claims that only a handful of people have actually been searched. Now, it’s not like the good Justice doesn’t understand that the cops are trying to catch bad guys and solve crimes. No one likes a rapist, but…
Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the “identity” of the flying public), applies for a driver’s license, or attends a public school. Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.
Hopefully now you get a sense of why it is that I am hopeful that there will (eventually) be some critical scrutiny of things the government claims it can do with regards to suspicionless electronic surveillance of pretty much everyone in the world, and why it is that whether I agree with him or not (and I agree with him in this case) it’s always a lot of fun to read a Scalia opinion.
We aren’t in a brave new world of law enforcement. DNA sampling is indeed here to stay. It will only get better, faster, and cheaper than it already is. But Scalia’s point wins the day: in order for the government, at any level, to conduct a search, it needs to articulate an objective reason why it wants to engage in the search. This ought not to be difficult and in most cases, it isn’t. So had I been on the Court, despite the direct and well-framed argument of Justice Kennedy, I’d have joined the dissent. Maybe the old rapes have to go unsolved. Maybe the assembly of NDIS was a waste of time and effort. I hope not – there may yet be a reason to keep it and legitimate uses for it.
And there’s no love here or anywhere else for Alonzo King, who seems to be a man earning himself a life sentence in prison on the installment plan. I can understand the Supreme Court’s reluctance to make a ruling that might put a guy like King back out on the street. That’s an unsavory result indeed. But the fact of the matter is King was already incarcerated for the firearms charge.
But a robust Fourth Amendment is too dear a prize to give up in exchange for putting people already behind bars away for still longer periods of time. As His Honor concludes: “Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches. The Fourth Amendment must prevail.” I hope that when, inevitably, a challenge to warrantless wiretapping and suspicionless electronic dragnets comes before the Supreme Court, Justice Scalia remains not only true to his words of this Term, and persuasive enough in his articulation of them in chambers to command a majority of the Brethren.
In the meantime, we aren’t really any safer than we were before Maryland v. King, but we are just a little bit less free.
 No, I don’t. Typically, I despise hyperbole. It’s the worst way to make a point, ever.
 “Compare, New York v. Belton, 453 U. S. 454 (1981) (suspicionless search of a car permitted upon arrest of “the driver), with Arizona v. Gant, 556 U. S. 332 (2009) (on second thought, no).” This is Justice Scalia’s footnote, not mine. I wish I could be as pithy as this in my own footnotes.
 Seriously, “genetic panopticon”? Holy crap that’s awesome. Who else, outside of the authors of this very blog, even writes that?