For The Cold Case Files

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.[1] 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.

I therefore dissent, and hope that today’s incursion upon the Fourth Amendment, like an earlier one,[2] will some day be repudiated.

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.[3]

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.


[1] No, I don’t. Typically, I despise hyperbole. It’s the worst way to make a point, ever.

[2] “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.

[3] Seriously, “genetic panopticon”? Holy crap that’s awesome. Who else, outside of the authors of this very blog, even writes that?

Burt Likko

Pseudonymous Portlander. Homebrewer. Atheist. Recovering litigator. Recovering Republican. Recovering Catholic. Recovering divorcé. Recovering Former Editor-in-Chief of Ordinary Times. House Likko's Words: Scite Verum. Colite Iusticia. Vivere Con Gaudium.


  1. The amount of hyperbole we see nowadays could lead to the downfall of civilization.

  2. “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.

    And when it comes to picking a president.

  3. So, what happens when a state starts taking DNA and running it through CODIS, too? Let’s imagine a case where it’s clearly not a pretext. The police have a suspect who refuses to identify himself. There’s a clear need to identify him, so (among other efforts to discern his identity) they take DNA and run it through CODIS. Are they then allowed to run that DNA through NDIS or not?

    • If you don’t have a right to take a guy’s wallet and look at his driver’s license, or look at his number on his phone and identify him from that, then you definitely shouldn’t have the right to take and use a DNA sample for that purpose.

      • I was under the impression that the police do have the power to check out arrested persons’ wallets, etc for ID. I was just supposing that that wasn’t sufficient in this hypothetical.

    • What you’re describing would be a closer case for the Scalia dissent. But a no-brainer for the majority. Per the majority, the police can run the John Doe sample through NDIS even if they had plenty of other information available to identify the arrestee.

      • I meant under the theory that the Scalia dissent puts forth. Sorry that was unclear. Obviously, if they can take DNA for no other reason than to look for cold case hits, than that’s the rule.

  4. The first thing that came to mind for me was the birthday paradox. The number of tests is equal to the product of the number of samples in the database and the number of arrestees tested, so even if the test has a one-in-a-billion chance of a false positive, testing a million arrestees against a million samples gives you a trillion chances for a one-in-a-billion false positive. Though this could be mitigated pretty well by acknowledging that a match is not conclusive evidence of guilt and requiring that additional evidence be found before charging the suspect.

    As long as it’s limited to convicted felons, I don’t see a problem with this. People who have commited one felony have a hugely elevated probability of having committed others compared to the typical man on the street, so checking the database isn’t really a baseless search.

    Think back to why we have the Fourth Amendment. It’s to prevent the government from busting into people’s houses on fishing expeditions, stopping and harassing them on the street, or arresting them without cause, because these actions impose significant costs on innocent people, and can be used by an abusive government to harass dissenters.

    None of that really applies here, if it’s limited to convicted felons. The search is not intrusive in any meaningful sense of the word, and it’s limited to people who have been convicted of felonies.

    What I do find problematic is the testing of people who have merely been arrested. This opens the door to harassment and fishing expeditions, where the police arrest someone they don’t like on bogus charges, sample his DNA for testing, acknowledge the “mistake” and let him go, and then hope for a match.

    But the fact of the matter is King was already incarcerated for the firearms charge.

    On firearms charges? For how long?

    • What I do find problematic is the testing of people who have merely been arrested.

      In case it’s not clear from the above, I do understand that this is what was actually done, and I think the Court should have disallowed this.

    • Not clear how long the sentence was for the firearms charge. King is a two-time loser before this arrest and it was a felony charge, so we’re certainly not talking about a week of orange vest. If Maryland has a three strikes law still on the books, it would have been in the neighborhood of twenty to life; parole-eligible or not depends on the particulars of the state law.

  5. I was under the impression that DNA was quite reliable in excluding persons from a suspect pool, but very iffy for confirming the identity of any particular one.

    Aren’t my brother and I the same genetically?

    • Aren’t my brother and I the same genetically?

      Only if you’re twins.

    • Brandon is correct, but I don’t think DNA testing involves sequencing the entirety of someone’s DNA (that still takes a very long time, despite it being much quicker than in the days of the Human Genome Project). Given that people’s DNA is something like over 99% identical, that would be a waste of time. It’s likely that they’d sequence sections of DNA that are known to be highly variable (the technical term is ‘polymorphic’), and if those sections matched ones on file they’d assume the sequences were from the same portion.

      And it’s quite conceivable that siblings would have the same sequences in several polymorphic sections. Or even non-siblings, depending on the specific genetic tests being done. That’s another potential issue with what the police were doing – even if DNA testing is 99.99% accurate and reliable, if you’re running a person’s DNA against millions of cases you could still get incorrect matches.

      But then, I may be misunderstanding this. I’m still not entirely clear on how they can take DNA samples from cheek swabs and avoid contamination of the results from the DNA sequences of the millions of bacteria that live in a person’s mouth.

      • I linked to a FAQ offered by the FBI concerning CODIS/NDIS. Generally, they’re looking at 13 specific genetic markers, for which there is high variance from individual to individual. Typically, if a positive match is found, a second test is run to confirm it and minimize the chances of a false positive (as was done for King).

        • That still doesn’t address the issue of a contaminated/degraded sample in the database.
          They could check it five times, and it would still be just as contaminated or degraded.

          • It is rather my impression that you can tell when a sample is degraded, and that most governmental samples are degraded.

    • There are bizarre cases where DNA testing reports that a person doesn’t have their own DNA, so to speak. In one long-running dispute a mother was ruled out as being the biological mother of her biological daughter, causing a lot of legal problems till they figured out the mother was a chimera assembled from two different sets of DNA, formed when she fused with her fraternal twin in the womb. Her twin part produced her eggs. I don’t know if that made her an aunt or a surrogate mother. It all gets confusing.

      Of course the police nightmare will surely be the criminal chimeras who murder with one hand and give tissue samples with the other. O_o

      In another odd development that’s probably sure to arise, burn patients and others who get skin grafts can receive skin grown in vats, which is typed for compatibility and which will genetically match the donor cells, not the recipient. Someday one of those recipients is going to leave some skin at the scene of a crime, leading to the arrest of some random tissue donor.

      • Pointing out instances where their clients fall victim to unusual sorts of circumstances like this is what defense attorneys do, and what human beings in the court system are for.

        • But these are the sort of bayesian statistics problems that human beings, even trained scientists, are particularly bad at understanding intuitively. Asking a jury to do the math on this is the wrong answer. There need to be court-established rules that prevent the cases from coming to trial if the only evidence is a potentially false match from a DNA database.

      • Yeah. Simple assumptions are often wrong. It reminds me of the British case where they arrested an immigrant for murder and argued that the DNA evidence said there was only a one in X million chance he wasn’t guilty. But as it turned out, he wasn’t picked up randomly, he was profiled because he was part of the small group of immigrants potentially involved, and that group was from an ethnicity that was extremely uncommon in Britain (some small overseas island, if I recall correctly). Of course as it turned out, every one of the dozen or so potential suspects would’ve met the one in X million criteria, and the murder was committed by one of the others.

  6. I have mixed feelings on this. It’s something that seems like it should be legal for dealing with crimes of a serial nature, particularly sexual assault – if a person is arrested for a sexual assault, running his DNA through the system to find if it matches any other unsolved rapes would be potentially useful information, since if other matches were found it would speak to a ‘pattern of behaviour’ and add credibility to the charge, as well as enabling additional cases to be solved.

    In other words, if there is a credible connection between the crime of which a person is accused and another set of crimes, cross-checking the DNA seems to have a legal justification.

    But if, as in this case, the cops are just taking DNA samples from everyone they arrest, without a warrant, and cross-checking them against all unsolved crimes nationwide, that seems unjustifiably extensive. On the other hand – do they already do the same thing with fingerprinting? How meaningful is the difference between DNA identification and fingerprint identification?

    • if a person is arrested for a sexual assault, running his DNA through the system to find if it matches any other unsolved rapes would be potentially useful information, since if other matches were found it would speak to a ‘pattern of behaviour’ and add credibility to the charge, as well as enabling additional cases to be solved.

      A big part of the question, both before the Court and in Burt’s post, is when you run the DNA through the system. Imagine four scenarios:

      (a) Running the DNA of a prisoner who has already been convicted of a sexual assault;
      (b) Running the DNA of a defendant who has been indicted for sexual assault but has not yet been brought to trial;
      (c) Running the DNA of an arrestee who has been arrested for sexual assault *and* some other factor of the current assault (method, vehicle, a tattoo on the assailant’s forearm, etc.) matches some detail in the file of a previous, unsolved sexual assault case;
      (d) Running the DNA of an arrestee who has been arrested for a completely different category of felony, on the off chance of getting a hit.

      I submit that, even under Scalia’s dissent, the Fourth Amendment analysis for each of those would be different.

      In particular, a judge would probably sign off on a warrant for (c) but not for (d) — if a warrant is in fact required (which, thanks to Justice Kennedy, is not the case).

      • I was imagining a scenario c2 where the person had been arrested for sexual assault and there weren’t necessarily any additional factors tying him to other cases. But in order to form an opinion on whether running his DNA in that case would be necessary or justifiable, I’d need a clearer understanding of the difference between ‘arrested’ and ‘indicted’.

        In cases a through c I support running the DNA against DNA from all other sexual assaults in the system, but not running the DNA against every crime in the system. There should be some kind of connection between the crime committed and the crimes you’re testing the DNA against.

      • Yeah, I have no problem whatsoever with (c) and (d) gets me all upset.

        It’s easy to come up with all sorts of examples that make sense for, say, catching a burglar in the act. If there has been a rash of burglaries in the neighborhood, there’s a difference between charging the burglar with 20 counts of burglary (one for each house!) and charging him with the burglary of the house in which he was caught.

        But if he had specialized tools that left a particular footprint, and this footprint was also left at the other houses, it doesn’t seem like a violation of rights to check his fingerprints with the prints found at the other houses.

        Of course, this is contingent on me trusting the prosecution to say “the prints don’t match, therefore we shouldn’t charge him with breaking into that other house.”

    • But if, as in this case, the cops are just taking DNA samples from everyone they arrest, without a warrant, and cross-checking them against all unsolved crimes nationwide, that seems unjustifiably extensive.

      This. And I don’t think we should be doing it with fingerprints, either. For the same reasons that employers should not be able to discriminate on the basis of arrests, even when they can discriminate on the basis of convictions.

      • That analogy completely misfires for me. We rule out discrimination on basis of arrest because we recognize that simply being arrested doesn’t prove anything about actual guilt. I.e. you shouldn’t be a pariah for the rest of your life because a rushed cop picked up the wrong man.

        How is that analogous to fingerprint checks? If there is a match in the database to DNA or fingerprints found at a crime scene, then all happens is you become a person of interest in that case. Just as you would if a witness saw you at the scene or they found your library card on the body. Now it may be no fun to be a person of interest, but it certainly isn’t unreasonable.

      • My issue with employers discriminating against arrestees, and DNA/fingerprinting, is the degree of “punishment” assigned despite there being no conviction. That’s the connection I see.

        You become a “person of interest” only because you were arrested of something else. Regardless of whether or not the arrest was legit. That’s significant.

        On the other hand! The value in cross-checking for existing warrants is a valid reason to fingerprint and maybe to take DNA. Basically, to verify somebody’s identity to see if they’re wanted in Tucson or something. I can’t quite suss it out yet, but my mind wants to draw a distinction between using it for enforcement purposes (following up on the warrant already issued in Tucson) and using it for investigative reasons.

        Maybe the split in the middle is that they can take your fingerprint, but they cannot put it into a database until you have actually been convicted of something?

        Ultimately, though, it just seems wrong to me to have two classes of citizens. One on which the government has the information on, and one where the government doesn’t, despite neither having been convicted of a crime or otherwise voluntarily submitted to a test (for, say, a job with the county).

        My fingerprints are in the system because I worked for the census bureau. Which is all right and good. I made that choice. But having been arrested but never convicted of something strikes me as something different.

  7. Great piece Burt. I agree with you about Scalia’s writing. Love him or hate him, he’s a brilliant writer and reading one of his opinions or dissents is rarely dull (unlike, say, reading a Souter opinion). While I find a lot of Scalia’s judgments questionable, he’s been consistently good on Fourth Amendment issues and this case is no exception.

  8. Great post, Burt. I’m amazed at how often I read an opinion and find it pretty convincing, then read a dissent and find it pretty convincing. It sometimes takes a couple reads before I can make up my own mind.

  9. A prisoner escapes from jail. The guards gather one of the prisoner’s shirts and presents it to a tracker dog. Off they go, the dog following the trail of evidence — evidence — left by the fleeing prisoner. It’s not a stretch of technology to produce a filter paper to gather the evidence the dog is following.

    Has the prisoner’s right to privacy been violated under any of the relevant statutes and rulings? The Exclusionary Rule is outdated and ought to be replaced. Courts order paternity tests all the day long.

    If Alonzo King had been in prison for so much as one night, the authorities could have gathered the same DNA evidence from his bed sheets.

    • This is a very different circumstance from the one involved in the case. Scalia doesn’t seem to take issue with the gathering of DNA evidence per se but its use to solve unrelated crimes in which there was no probable cause to suspect the arrestee.

      In the case of the prisoner, he’s already been tried and convicted and, by escaping from prison, has committed another crime. If the DNA evidence is used to track him down, then it’s perfectly reasonable. But if the DNA evidence is run through a data bank of unsolved crimes in search of a match then yes, in Scalia’s view, but not the majority’s, that would be an unconstitutional violation of his privacy.

    • The Exclusionary Rule is outdated and ought to be replaced

      With what?

      • Something with teeth. Something with hard, sharp pointy things in its jaws capable of putting the bite on misconduct in the judiciary and law enforcement communities. Something which imposes large fines and jail terms for such misconduct. Something to put the Law back in Law Enforcement. In short, a New Fourth Amendment, this time con brio.

  10. So… what’s to be done about the government taking DNA in the normal course of duty, and then using that to cross-check against the rapekits?

    What if the government decided (ha! past tense!) to pull DNA on a whole host of randomly selected people?

    • Based on the majority opinion, it could do that if the random sample fell within one of the “special needs” sorts of searches, in a situation analogous to a drunk driving checkpoint.

      • So, the government isn’t allowed to simply merge databases? If the government pays for a DNA sequencing (say for medical purposes), they aren’t allowed to check against the rape database?

  11. There is another aspect to this. From what I understand, people wrongfully convicted of crimes where there is DNA evidence often have trouble getting that evidence tested.

    It would seem that such comparisons should be automatically done; and if a wrongful conviction (meaning their DNA does not match the crime,) that should trigger re-examination of their conviction; yet the incarcerated often have long struggle to get exoneration — to get their own DNA, presumably in these data bases — compared to the DNA from the crimes for which they’ve been convicted.

    Yet their comparing DNA for those only accused of something else to old crime evidence. Does this seem backward?

    • This, too, is shameful for the justice system, albeit something the Court did not have occasion to tackle. We commonly think of DNA evidence being used to exonerate a prisoner but this case demonstrates what I suspect is the more frequent way the science is deployed: to incriminate.

      • Well, you’ll excuse my language, and I know that this was not the question before the court, but given both the civil liberties lost and the cost of incarceration, doesn’t this strike you as fucking moronic?

        What kind of people are we?

        /finished ranting. Thank you, Burt. I feel better, now.

  12. If they had no reason to think this guy was a rapist, let alone the rapist he turned out to be, then any search or investigation to that end is wrong.

    Don’t get me wrong: I’m glad this rapist is off the streets. But I don’t like the way the police went about getting him off the streets.

    I’m reminded of the controversial ‘Papers, please’ immigration bill Arizona tried to pass. I believe the original wording said that any “legal contact” an individual had with a police officer allowed the latter to ask for papers, essentially performing an investigation of the former’s immigration/citizenship status. It didn’t matter whether the “legal contact” was related to asking for directions, serving as a witness, or investigation of a crime unrelated to immigration: all allowed the investigation to proceed. Now, there was also language that the officer needed to have a reasonable suspicion that the individual’s status might be in doubt but, well, we all know what that meant.

    Get a warrant. Period.

  13. It says something about the prospects for the cause of civil libertarians that *losing* a case with flourish is considered a victory and “gives heart for the issue of the NSA looking in to domestic metadata on rubber-stamp warrants”.

    Burt, I’m less sanguine than you about this pair of opinions. Kennedy knew what arguments he was up against and had to know that he would be exposed as having manipulated the framing of the case by Scalia. Kennedy wrote anyway. Kennedy’s words, however, misleading mean something in determining what happens in future cases while Scalia’s points, however well made, carry no weight for the lack of one more vote.

    I thought it interesting that you quoted Scalia on 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”. This is meant to show how ludicrous Kennedy’s arguments are. And it does that effectively. However, when one considers that Kennedy’s words are what matter, how can you help but be horrified rather than comforted?

    • This says what I was thinking much better than I would have.
      My take is that Kennedy will side with the police, no matter what.
      If Kennedy just got through saying that no police officer should ever urinate on the floor of the Supreme Court, and a police officer urinated on the floor right in front of him immediately after he said it, Kennedy would find a way to excuse it.

      • What’s more dismaying is that Breyer sided with the police as well. If you can’t count on the Court’s liberals to uphold the Fourth Amendment, who can you count on?

        • Well, Breyer doesn’t seem to believe in actual, firm, inviolable, rights. He sees the Constitution as creating room for a democratic conversation. Apparently that democratic conversation includes what constitutional rights we’ll enjoy. What the point of a bill of rights is, then, I can’t quite fathom. Even when I agree with Breyer’s conclusions, I loathe his “democratic constitution” and “active liberty” approach. It ultimately means the Constitution is not meant to be a safeguard against majoritarianism, which is anathema to any serious civil libertarian. (Hence, Breyer, for all that he’s considered liberal, cannot truly be considered a serious civil libertarian.)

      • Well, ‘urinate’ ‘urine’, ‘floor’ ‘police officer’ ‘should’ .Supreme Court’ ‘of’….

        Lots of meat for a dishonest justice.

        • Heck, you don’t even need to fool around.

          “The Police shall not urinate on the floor” obviously was written at a time when they could not have foreseen the beverages we have today.

    • For me, the bright spot here was that it was Scalia who shone — one from the traditional conservative bloc. Scalia has offered some rather vituperative opinions on terrorism issues in the past — I’m very, very interested to see how the Scalia who dissented two weeks ago in Maryland v. King will be reconciled with the Scalia who dissented in 2008 in Boumediene v. Bush.

      • I suspect the difference for Scalia is between the concept of “rights and liberties for ‘us’ ” and “rights and liberties for ‘the terrorists’ “.

  14. IIRC the Supreme Court said that the police can only collect DNA if the suspect/alleged defendant is arrested for a “serious crime”.

    What do you think the drawling line will be between a serious crime and not-serious crime?

    • Wherever it is, you can be pretty sure which side of the line drugs will be on.

    • Can this be true? An arrest has no real meaning: anyone can be arrested for any crime. Only after some kind of adjudication can there be said to be a reasonable chance that a charge is just or meaningful.

      This seems like a loophole that any police department could drive a truck through: one’s rights are diminished upon arrest???

      • Professional athletes are often disciplined (fined or suspended) for being arrested. It’s a disgrace.

  15. Thanks for the analysis Burt, it cut through a lot of the hyperbole I’ve heard on this.

  16. Speaking of DNA testing, it’s causing a revolution in apprehending poachers. Fish & Wildlife agents were always finding gut piles in the woods (out of season) and tasty meat in suspects freezers but had a hard time directly linking the two. Now they can prove that the meat in the freezer is a DNA match for the gut pile in the woods.

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