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King – Maryland and the Supreme Court – Part 2

On Monday, on this blog, I published the first part of a section of an article for the Maryland Association for Justice’s Trial Reporter magazine.  The first part dealt with the King case in the context of Maryland’s Court of Appeals.  The second part deals with King in the context of the Supreme Court of the United States.  The article, in its entirety, can be read in the MAJ’s Trial Reporter.  Please note that article cites are best read by reading the article as a whole.  This is the second part of the article sample…

Maryland v. King, 133 S. Ct. 1958 (2013). 

The Supreme Court reversed the Court of Appeals. The Court concluded that DNA identification of arrestees was a “reasonable search that can be considered part of a routine booking procedure.” Id. at 1980. In doing so, the Court first described the collection procedures authorized under the Collection Act, its unauthorized use and expungement provisions, and the 13 non-coding loci from which DNA profiles are developed, which the Court described as not containing any genetic disposition information.

The Court’s reasonableness analysis first pointed out that once the Defendant was arrested, there was little discretion for police to exercise because the Collection Act prescribed the procedure for collection and prohibited invasive use of the collected sample. Thus, the search was not per se unreasonable for lack of a warrant because there were virtually no facts for a magistrate to decide.

The Court proceeded to balance the private and government interests at stake because the search still had to be reasonable in its scope and manner of execution even if no warrant was required. The legitimate government interest served by the Collection Act was the “need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody.” Id. at 1970. Furthermore, the government had a firmly-rooted right to search an individual incident to arrest. DNA played a significant role in “subjecting the body of the accused to [the law’s] physical dominion” instead of searching for criminal evidence. Id. at 1971.

In the context of arrest and processing, the Defendant’s identity included his criminal history. DNA provided “unparalleled accuracy” and was not evidence of a crime itself. Id. at 1972. DNA was merely “another metric of identification used to connect the arrestee with his or her public persona.” Id. Furthermore, DNA helped the police protect themselves and other detainees by determining exactly who was detained. Accurately determining a detainee’s prior criminal history assured availability of the Defendant at trial, helped judges determine future dangerousness in pretrial release determinations, and protected the police, other inmates, and the public.

The Court explained that “law enforcement agencies routinely have used scientific advancements in their standard procedures for the identification of arrestees,” id. at 1975, citing the development of photography, body measurements, and fingerprinting to identify arrestees during administrative booking procedures. The fact that DNA took longer than fingerprinting was irrelevant because the delay went “to the efficacy of the search for its purpose of prompt identification, not the constitutionality of the search.” Id. at 1976.

The Court stressed that Defendant’s expectation of privacy was diminished due to his arrest for a serious offense because he should expect a “relatively extensive exploration” of his person and property when brought into the police station. Id. at 1978. The Court distinguished this search from “programmatic searches of . . . the public at large,” for which a warrantless, suspicionless search required “some other purpose other than ‘to detect evidence of ordinary criminal wrongdoing.’” Id. (quoting Indianapolis v. Edmund, 531 U.S. 32, 38 (2000)).   By contrast, no “unique needs” were required in this case because the Defendant’s privacy expectation was reduced upon arrest. Id.

In addition to the Defendant’s diminished expectation of privacy, the Court relied on the fact that a buccal swab was even less intrusive than normal booking procedures. The Court pointed to the fact that (1) the 13 loci used to produce the Defendant’s DNA profile were “not at present revealing information beyond identification,” a point which the Court recognized was “open to dispute;” id. at 1979; (2) the police only processed the Defendant’s DNA sample to produce a unique identifying number; and (3) the statute provided for expungement upon acquittal and penalties for unauthorized use and testing. These characteristics of the Act relieved privacy concerns.

Justice Scalia dissented, joined by Justices Ginsburg, Sotomayor, and Kagan. Justice Scalia began by stating:

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.

Id. at 1980. The “‘closely guarded category of constitutionally permissible suspicionless searches’ . . . ha[d] never included searches designed to serve ‘the normal need for law enforcement.’” Id. at 1981 (quoting Chandler v. Miller, 520 U.S. 305, 309 (1997); Skinner v. Ry. Labor. Exec. Ass’n, 489 U.S. 602, 619 (1989)).

Justice Scalia admonished the majority’s conclusion that the buccal swab was anything other than gathering evidence of a crime. The Defendant’s genetic material did not fall into any of the categories of permissible objects of a search incident to arrest, i.e., it was not a weapon, not evidence that could be easily destroyed, and not evidence of the crime for which the Defendant was arrested.

Justice Scalia criticized the majority’s identity justification. In his opinion, identifying someone did not include discovering evidence of crimes unrelated to the crime for which the person was arrested. The fact that the Collection Act did not permit DNA testing until after the Defendant’s arraignment undermined the majority’s reliance on the government interests in protecting personnel and other inmates. In fact, the Defendant’s DNA was not tested until months after his arrest.

Furthermore, DNA samples taken from arrestees and matched with DNA samples taken from crime scenes were given ID numbers because it was assumed that authorities already identified the person to whom the sample belonged. The State could not be seeking to identify the Defendant when it compared the Defendant’s DNA with DNA from crime scenes because the DNA from crime scenes had obviously not been linked to any person. The Collection Act by its terms stated that DNA was collected and tested “as part of an official investigation into a crime.” Id. at 1985.

Moreover, DNA analysis was not comparable to photographing, taking body measurements, or fingerprinting. Photography and body measurements did not involve bodily intrusion and the results were not used to connect the subject to other crimes. It was unclear whether fingerprinting was a Fourth Amendment search. Assuming that it was, fingerprinting was different from DNA because of the way in which the police used the results after arrest. DNA was used solely to solve other crimes. Fingerprints were used solely to identify the subject, which sometimes incidentally led to other crimes being solved. Fingerprint analysis was returned in minutes, was accompanied by detailed identifying information, and could not readily be compared to “latent prints” from crime scenes. Furthermore, the constitutionality of fingerprinting had never been squarely addressed by the Court. The fact that DNA analysis may in the near future be conducted faster than currently, which was in dispute, is irrelevant to whether the Collection Act is used to identify the Defendant or to solve other crimes. Justice Scalia concluded: “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.” Id. at 1989.