Maryland v. King, USSC No. 12-207, 6/3/13
In a decision validating the collection of DNA from at least some persons before they are even convicted of a crime, a divided Supreme Court has concluded that when officers make an arrest supported by probable cause for a “serious” offense and detain the suspect in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate part of the routine booking procedure that is reasonable under the Fourth Amendment.
The case arose when Alonzo King was arrested in 2009 for assault for menacing people with a shotgun. (Slip op. at 2). A DNA sample was collected from him under Maryland statutes authorizing police to collect DNA samples from persons charged with certain serious offenses, including murder, sexual assault, kidnapping, arson, and burglary. (Slip op. at 2, 4). After his sample was processed, his DNA was found to match unidentified DNA taken from an unsolved 2003 sexual assault. (Slip op. at 2). King challenged the use of the DNA taken during his 2009 arrest and, as described in our post on the grant of certiorari, the state appellate court held the collection of King’s DNA was unlawful because it was a warrantless, suspicionless search. (Slip op. at 2-3).
The majority decision first concludes the buccal swab used to collect DNA is a search, as it is an intrusion into the human body like a blood draw or the scraping of an arrestee’s fingernails. (Slip op. at 7-8). The Court then addresses the lawfulness of the search using “the category of cases this Court has analyzed by reference to the proposition that the ‘touchstone of the Fourth Amendment is reasonableness, not individualized suspicion.’” (Slip op. at 10, quoting Samson v. California, 547 U.S. 843, 855 n.4 (2006)). Under that approach, the Court does not employ the usual per se rule of unreasonableness governing warrantless searches; instead, the Court balances the promotion of legitimate governmental interests against the intrusion on the arrestee’s privacy. (Slip op. at 8-10, 23-24, citing Illinois v. McArthur, 531 U. S. 326, 331 (2001), and Wyoming v. Houghton, 526 U. S. 295, 300 (1999)).
In its balancing, the Court puts extensive weight on the state’s interest in “a safe and accurate way to process and identify the persons and possessions they must take into custody.” (Slip op. at 10). The Court dwells at length on why accurate identification of an arrestee is essential to make decisions about what charges, if any, to pursue, about classification of the arrestee while in detention, and about pretrial release. (Slip op. at 10-18). To the Court, identification is not limited to the arrestee’s name, but includes his or her prior history: “A suspect’s criminal history is a critical part of his identity that officers should know when processing him for detention.” (Slip op. at 12). And, “an arrestee’s past conduct is essential to an assessment of the danger he poses to the public, and this will inform a court’s determination whether the individual should be released on bail.” (Slip op. at 15).
Further, the Court concludes DNA is an advanced, more accurate version of, and not significantly more invasive than, other standardized identification techniques that have long been an unobjectionable part of the standard booking routine–photography, the Bertillon identification measurements, and fingerprinting. (Slip op. at 18-21). “In the balance of reasonableness required by the Fourth Amendment, therefore, the Court must give great weight both to the significant government interest at stake in the identification of arrestees and to the unmatched potential of DNA identification to serve that interest.” (Slip op. at 23). By comparison, the buccal swab involves only a minimal intrusion on the arrestee’s privacy, particularly in light of the normal incidents of arrest. In addition, an arrested person has a diminished expectation of privacy because of the demands of jail security. (Slip op. at 23-26). Therefore:
In light of the context of a valid arrest supported by probable cause [King’s] expectations of privacy were not offended by the minor intrusion of a brief swab of his cheeks. By contrast, that same context of arrest gives rise to significant state interests in identifying respondent not only so that the proper name can be attached to his charges but also so that the criminal justice system can make informed decisions concerning pretrial custody. Upon these considerations the Court concludes that DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure. (Slip op. at 28).
Justice Scalia, joined by Ginsberg, Sotomayor, and Kagan, dissent, rejecting “the free-form ‘reasonableness’ inquiry” of the majority. (Dissent at 3). The dissent starts from the proposition that “[t]he 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.” (Dissent at 1). “That prohibition is categorical and without exception,” and suspicionless searches are permitted only when there is “a justifying motive apart from the investigation of crime.” (Id.).
The dissent concludes that there is no such motive here. It “taxes the credulity of the credulous” to claim that DNA collection was about identifying the arrestee because, unlike fingerprinting or other standard booking procedures, it takes weeks, if not months, for the biological sample to be tested, and once tested, it is checked against unsolved crimes, but not records of arrestees or convicts. (Dissent at 1, 6-12). Because the DNA collection is ultimately about further investigation of unsolved cases, not identification, it violates the categorical rule against searches without individualized suspicion, even if the search is only minimally invasive. (Dissent at 4-6).
Wisconsin is one of 20 or so states that don’t collect biological specimens from arrestees. (For the jurisdictions that do, see this summary by forensic evidence expert David Kaye). So this decision doesn’t affect Wisconsin–yet. But it likely will soon: The pending biennial budget bill includes a proposal for collecting DNA from all felony and some misdemeanor arrestees (though the joint finance committee has proposed an amendment eliminating the misdemeanor arrestees and the full legislature could make that change, and others).
This highlights one of the questions left unresolved by King—namely, whether DNA collection regimes that differ from Maryland’s might be subject to some as-applied challenges. For example, the Court, following Maryland’s statute, refers repeatedly to arrests for “serious” crimes. (Slip op. at 1, 9, 14, 17, 22, 23, 24, 28). Which crimes are “serious”? Will it go too far to collect samples of all felony arrestees? What if some misdemeanants are included? We don’t know yet, though the dissent, at least, thinks the “serious” crime limitation is an empty one:
If one believes that DNA will “identify” someone arrested for assault, he must believe that it will “identify” someone arrested for a traffic offense. …. At the end of the day, logic will out. When there comes before us the taking of DNA from an arrestee for a traffic violation, the Court will predictably (and quite rightly) say, “We can find no significant difference between this case and King.” Make no mistake about it: As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason. (Dissent at 17).
Also, note the Court’s references to a valid arrest supported by probable cause. (Slip op. at 28). Does that open an avenue to challenge DNA evidence being used in a “cold” case because it was collected as the result of an unlawful arrest in a case where the DNA isn’t used as evidence? And what about other restrictions in the Maryland law?—e.g., the prohibition on the use of the DNA database that go beyond the identification of individuals (such as familial matches). (Slip op. at 4-5, 26-28). Is DNA collection under laws without those limits invalid? The majority doesn’t say, so the limits, if any, will be developed by future cases.
Finally, the “free-form” reasonableness test applied by the majority differs starkly from the dissent’s categorical approach. As explained more fully by Orin Kerr’s prescient pre-argument analysis and an essay by David Kaye arguing for a warrant requirement exception for arrestee DNA collection, the contrary approaches both find support in the Court’s prior cases. Kerr’s post on the Court’s decision may be right to conclude the case does nothing new from a doctrinal standpoint, turning as it does on characterization of the purpose of the search; but Kaye is also right to express disappointment that the Court invoked generalized balancing because, as his essay argues (at 1117), that approach “sit[s] poised to devour any Fourth Amendment cases founded on normal categorizing.” Whether that approach remains the “anomaly,” as he also suggests, remains to be seen.
UPDATE (6/5/13): King‘s subject matter, and Justice Scalia’s robust dissent, are prompting a lot of commentary. If you’re interested, Scotusblog has collected links to a number of pieces here; a guest at Concurring Opinions offers some commentary here and here; and, inspired by Justice Scalia’s reference to the construction of a “genetic panopticon” (dissent at 18), a contributor at Scotusblog explains the term’s connection to Jeremy Bentham (a reference to whom was also woven into the dissent’s argument at page 6).