Tag Archives: DNA databases

The Oral Argument in Maryland v. King — Part II

As noted yesterday, the argument that DNA profiling and database trawling for past crimes is or will be useful for pretrial release determinations intrigued several of the Justices. Justice Sotomayor spoke up:

JUSTICE SOTOMAYOR: And I’m having a hard time understanding the bail argument.Because in my time, most bail decisions were made at the time of arrest. And here the arrest was in April and the results didn’t come up until August. … You don’t use it routinely for the bail determination.

MS. WINFREE: At this point, you’re absolutely correct, Justice Sotomayor. We don’t use it routinely for a couple of reasons. For one, as in Mr. King’s case, there has been in the past a more substantial delay in getting those results back. Our — our lab now is getting results between 11 and 17 days. … Now, of course, that wouldn’t be timely for that first bail determination, but the State under Maryland’s procedure certainly has the ability to go back to — to the judge and ask that … that bail determination to be modified. And in point of fact, … in California’s amicus brief, which was joined by the 49 other States and D.C. and Puerto Rico, they actually do cite two particular examples where [release or] diversion was revoked . …

The Deputy Solicitor General maintained that this use of the DNA would only grow:

MR. DREEBEN: [R]apid DNA will permit DNA identification to replace fingerprint identification because it’s far more accurate and it has far more utility in the secondary purpose of fingerprints, which is to match them to latent prints and solve crimes. … Any judge who is looking at a bail case would like to know: I have a guy who has been arrested on grand theft auto. He has no criminal history. Should I release him back on the street? Well, it’s a first offense, he has family ties; maybe yes. If that … defendant’s DNA came back and returned a cold case hit to a murder-rape, the judge would know he’s not such a good risk to be put back on the street.* [* Order of clause rearranged.]

In responding to this argument, counsel for Mr. King first seemed to concede that when DNA profiling and database trawling could be done rapidly, the system would become constitutional:

CHIEF JUSTICE ROBERTS: There are two different, two different interests. One is we want to solve unsolved crimes; and the other is we want to be sure — we have someone in our custody and we want to be sure, before he is released back into the community, that he isn’t a person who has committed five violent crimes before that. Now, your brief says, well, the only interest here is the law enforcement interest. And I found that persuasive because of the concern that it’s going to take months to get the DNA back anyway, so they are going to have to release him or not before they know it. But if we are in a position where it now takes 90 minutes or will soon take 90 minutes to get the information back, I think that’s entirely different, because there you can find out whether — it’s just tied in with the bail situation, do you want to release him or not.

MR. SHANMUGAM: The touchstone of the analysis under the special needs doctrine is what was the primary purpose of the program at issue. And there is no evidence that pretrial supervision was a purpose of any of these.

CHIEF JUSTICE ROBERTS: That’s because, that’s because we are not yet at a situation where it takes 90 minutes. Sure, it’s not going to do you any good if it’s taking four months or whatever it took in this case. But if it’s at the point where it’s 90 minutes, it would be critical to make that determination.

MR. SHANMUGAM: Well, Mr. Chief Justice, … the constitutional analysis may very well change at a later point. But I think it’s important to underscore that neither the State of Maryland nor the federal government identifies a single instance in which a pretrial supervision decision in their jurisdictions was altered as a result of the DNA test.

But a little later he qualified his position:

JUSTICE SOTOMAYOR: Counsel, so I am really worried about the question … that I think one of my colleagues asked. I agree completely that today it’s used primarily and almost exclusively for purposes of solving other crimes.* But let’s — is this — the question only because technology hasn’t moved fast enough? You said we have to look at the constitutional principles 5 years from now when they will use it to pull up a guy’s criminal history. Not unsolved crimes, but criminal history. Get to that day. … Tell me what the — why you would then say that would still be unconstitutional. [* Order and wording of sentences altered slightly.]

MR. SHANMUGAM: Justice Sotomayor, … the only other potentially applicable exception to the principle that warrantless, suspicionless searches are unconstitutional is the special needs exception, and that exception looks to the primary purpose of the program at issue. And the mere fact that DNA testing could be used for other purposes wouldn’t necessarily be dispositive of the inquiry. If the primary purpose of DNA testing is still to investigate unsolved crimes, the program would still not qualify under the special needs doctrine.

Then again, under questioning from Justice Kagan, he conceded that the multipurpose system could be constitutional:

JUSTICE KAGAN: Just suppose — I mean, I guess the question is, would this be unconstitutional? It’s not the world we are living in now, but let me — 10 years from now the government says, we are really switching over to a fingerprint system — to a DNA system and what that system is going to allow us to do, is it’s going to allow us to identify, and it’s going to allow us to bring up the old criminal history and it’s going to allow us to see whether there are also unsolved crimes that we can tag to this person and discover that he’s really, really dangerous. All right? And so the government puts that system into effect. Is it constitutional?

MR. SHANMUGAM: I think that it could be, and that would simply be because you would have a system where DNA testing is essentially being used as fingerprinting is being used today. But again I don’t think —

The difficulty the Justices experienced in receiving a definitive response to their vision of a multipurpose DNA database system exposes part of the soft underbelly of the so-called special needs doctrine. One might well ask why “the primary purpose” of a program that produces evidence for criminal investigations and prosecutions is so critical? And, if it is so crucial, may a state salvage a law struck down as unconstitutional (because it was intended and used only to generate evidence in unrelated matters against mere arrestees) by re-enacting it, continuing to use it for its previous primary purpose of generating evidence, adding a new statutory preamble, and also using it (like fingerprints) for one or more additional purposes (such as gathering appropriate information for a bail determination) proclaimed in a carefully crafted preamble?

I asked these questions 13 years ago (Kaye 2001). The so-called special needs exception to the ordinary requirements of probable cause and a warrant applies when the government can articulate special interests in a program that also generates evidence of wrongdoing. For example, the government’s special interest in jail security and inmate health and safety justifies most of the searches that the Deputy Solicitor General reminded the Court about in the opening of his argument. When the government’s sole interest is producing evidence with which to catch criminals and the search is a significant intrusion of persons, houses, papers, or effects, then the normal rule is that warrants and probable cause are required. This reflects a prior balancing of governmental and personal interests that allows some searches but constrains arbitrary or unjustified government action. When special interests are present, however, the prior balancing is incomplete, and the outcome of a more comprehensive balancing could be different, As a result, the normal rule demanding warrants and probable cause might not apply (Kaye 2013).

Under this “special interests” theory, balancing is appropriate whenever special interests are present, and whether the balance of interests favors the government or individual does not depend on whether evidence production is a primary, secondary, or tertiary purpose of the program of searches. Yet, since 2000, the “special needs” doctrine has been more complicated–and less coherent than the reconstruction sketched above. As King argued, special interests do not trigger balancing unless they are the “primary purpose” of the program.

At least, this is what the Court first announced in City of Indianapolis v. Edmond, 531 U.S. 32 (2000). However. Edmond was not a multiple-purpose case. For the single purpose of finding narcotics in vehicles, Indianapolis established a program in which police used dogs to sniff for drugs in vehicles pulled over in groups at fixed roadblocks. The Court previously had upheld brief, suspicionless seizures at highway checkpoints for the such singular purposes as combating drunk driving and intercepting illegal immigrants. In addition, it had ruled that walking a drug-sniffing dog around a properly seized vehicle was not even a search. Thus, both components of the program–the checkpoints and the dog sniffs–had withstood constitutional attack. Yet, the Edmond majority reasoned that these cases did not govern: “Because the primary purpose of the Indianapolis narcotics checkpoint program is to uncover evidence of ordinary criminal wrongdoing,” the special needs exception was unavailable.

But neither Edmond nor any other case has tried to apply the primary-purpose limitation to a program that plausibly serves two or more purposes. Would the Indianapolis program have been eligible for special-needs balancing had the city established roadblocks strictly to check for intoxicated drivers, and then, after waiting a decent interval, added a dog-sniff in parallel with the sobriety check?

To cope with the analogous situation envisioned in the questions from the Chief Justice and Justices Kagan and Sotomayor, the Court has at least two stark choices. It could overrule Edmond and abandon the primary-purpose restriction, allowing special needs balancing as long as special interests actually are present. Or, it could engage in a slightly mystical search for the “primary” purpose of a truly multipurpose program.

But even if the special needs exception would apply in the future, the Chief Justice asked, what does it mean for the Maryland law today?

CHIEF JUSTICE ROBERTS: How can I base a decision today on what you tell me is going to happen in two years? You say, in two years we will have this rapid DNA available, but we don’t now. Don’t I have to base a decision on what we have today?

MS. WINFREE: Well, that’s really only one component of our argument, Mr. Chief Justice, that certainly with respect to a bail determination we will be able to make it more rapidly at the time that rapid DNA comes into effect.

Whereupon Justice Scalia got in the last word during Maryland’s rebuttal argument. Expressing his reticence to uphold the Maryland program because of what it might become, he stated:

JUSTICE SCALIA: Yes, but if we believe that the purpose of it has much to do with whether it’s legitimate or not, you can’t demonstrate that the purpose is immediate identification of the people coming into custody. You just can’t demonstrate that now. Maybe you can in two years. The purpose now is — is the purpose you began your presentation with, to catch the bad guys, which is a good thing. But you know, the Fourth Amendment sometimes stands in the way.

References

1. David H. Kaye, The Constitutionality of DNA Sampling on Arrest, 10 Cornell J. L. & Pub. Pol’y 455 (2001), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=263145.

2. David H. Kaye, A Fourth Amendment Theory for Arrestee DNA and Other Biometric Databases, 15 U. Pa. J. Const. L. No. 4 (forthcoming 2013), available at http://ssrn.com/abstract=2043259

Cross-posted to Forensic Science, Statistics, and the Law

Scientists’ Brief on CODIS Loci

On November 9, 2012, the Supreme Court voted to review a case posing the following question: “Does the Fourth Amendment allow the States to collect and analyze DNA from people arrested and charged with serious crimes?” In Maryland v. King, the state’s supreme court concluded that the protection against unreasonable searches and seizures forbids the state from collecting DNA from an individual whose true identity can be established with ordinary fingerprints. On December 28, 2012, the Supreme Court received a Brief of Genetics, Genomics and Forensic Science Researchers as Amici Curiae. Below are ten questions and answers about the brief.

Who contributed to the brief?

I did, and Hank Greely was an additional author. The scientists who participated in the writing are all active and distinguished researchers at medical schools (including Harvard, Yale, and Johns Hopkins) or universities (including Duke, Penn State, and Kings College, London). They include a former president of the American Society of Human Genetics, a past president of the American Board of Medical Genetics, Fellows of the American Association for the Advancement of Science, and members of the Institute of Medicine and the American Academy of Arts and Sciences.

Why did these law professors, medical and statistical geneticists, and molecular biologists submit an amicus brief?

The brief is intended “to inform the Court of the possible medical and social significance of the DNA data stored in law enforcement databases.” (P. 1). Advocacy groups, legal scholars, and some judges have asserted that the small number of features used in law enforcement DNA databases are predictive of health status (or soon will be). The brief attempts to clarify this issue.

Which side does the brief support?

The brief was submitted in support of neither side. It describes the nature of genetic information, the features of the genome used in law enforcement DNA databases, how those features are used in medical research, and whether they currently permit police, employers, or insurers to discern significant facts about a person’s present or future health status.

What conclusions does it reach?

Amici conclude that “[u]nlike medical genetic tests, law enforcement identification profiles have no known value for medical diagnosis or prediction of future health.” (P. 2).

That’s today. What about the future?

Amici caution that “no one can say with certainty what the future will bring, and it is possible that specific loci will be found to affect the operation of certain genes or to display correlations to disease states.” (P. 2). Nevertheless, they suggest that “it is unlikely that the identification profiles will turn into powerful medical diagnostic or predictive tools that can be used to infer disease states or predispositions by examining forensic database records.” (P.2).

Does this mean that the “CODIS loci,” as the identifying features are called, have no medical significance?

Absolutely not. The DNA sequences have been used in medical research for some 20 years to hunt for disease-causing gene mutations. They have been studied for associations with diseases and traits such as longevity. The question the brief addresses is what kind of information can be gleaned from inspecting a database record.

Doesn’t the highly publicized ENCODE Project prove that there is no such thing as “junk DNA”?

The brief contends that debate over the fraction of the genome that is, in an evolutionary sense, ‘junk’ … is orthogonal to the matter before the Court. (P. 26). A section of the brief explains that the data sets and papers recently released from the international Encyclopedia of DNA Elements Project are important to further research into gene regulation and other matters, but they do not indicate that all DNA sequences are critical to health or other important traits. What “[t]he ENCODE papers show [is] that 80% of the genome displays signs of certain types of biochemical activity–even though the activity may be insignificant, pointless, or unnecessary.” (P. 32).

Well, how about other uses? Don’t the CODIS loci tell scientists a lot about a person’s ancestry and race?

Not really. The CODIS loci can reveal something about bio-geographic ancestry, but anthropologists and population geneticists use far more probative ancestry-informative and lineage markers to study genetic histories. That “race” is not a biological category is now well known. As for socially perceived race, “[a] CODIS profile could be used to calculate probabilities that someone would be described as Caucasian, African-American, or Hispanic, but categorical inferences would not be very accurate, and attempts to predict the census-type race of a person from a CODIS profile would seem pointless considering that apparent race already would be known.” (P. 36).

So the brief shows that there is absolutely no important information that can be deduced from a CODIS profile?

No, amici do not say that either. The brief explains that “[b]ecause children inherit all their DNA from their biological parents, the CODIS loci can be powerful tools for determining whether two people could be genetically related as parent and child. … [T]he most powerful genetic information other than identity that the CODIS profiles contain [would be] that two people are not parent and child” or “that two people were identical twins.” (Pp. 33-34).

Where can I find the brief?

Here’s a pdf file. It should appear, along with other briefs, “soon” in the American Bar Association’s Preview of Supreme Court cases.

Cross-posted to Forensic Science, Statistics, and the Law.

The Constitutionality of DNA Collection Before Conviction: An Updated Scorecard

Note: This posting updates previous ones that have been deleted. It is current as of November 10, 2012.

Fifteen years ago, Louisiana adopted a law mandating that “[a] person who is arrested for a felony sex offense or other specified offense . . . shall have a DNA sample drawn or taken at the same time he is fingerprinted pursuant to the booking procedure.” As of early 2012, 26 states and the federal government had laws providing for DNA sampling before any conviction is obtained. Most other countries with DNA databases also collect samples on arrest.

The DNA-before-conviction (DNA-BC) laws in the U.S. had a placid childhood, with surprisingly few challenges to their constitutionality. This period of calm is over. In contrast to their older brother, laws mandating DNA collection after conviction (DNA-AC), which have been upheld in scores of cases, DNA-BC laws have provoked conflicting constitutional opinions. Yesterday, the Supreme Court voted to take up the issue in its 2012-2013 Term.

This posting presents a scoreboard on the litigation and scholarly commentary to date. If any players or contests have been omitted, I hope that readers will correct those omissions by leaving a comment. The law review articles listed in the table do not include ones on DNA-AC. Authors who have contended that these databases are unconstitutional would reach the same conclusion for a database that includes arrestees, but the lower courts have resoundingly rejected their analyses. Therefore, little would be gained by keeping track of the many articles on convicted-offender databases.

The tables make the point that there is no clear consensus among lower courts on the constitutionality of taking DNA samples during a custodial arrest (or at another point before conviction) with the intention of running database searches (in the absence of a warrant and probable cause to believe that the search will produce a hit in the database).


Table 1. Case law

Appellate: State Supreme Courts (1.5-1.5)

  • Mario W. v. Kaipio, Commissioner, 281 P.3d 476 (Ariz. 2012) (state arrestee law for juveniles constitutional insofar as it allows sampling as a booking procedure, but pre-conviction analysis of the sample is unconstitutional under a totality-of-the-circumstances standard and an analogy to searching containers)
  • King v. State, 42 A.3d 549 (Md. 2012) (state law requiring sampling after arraignment unconstitutional “as applied” under “totality of the circumstances” balancing test), cert. granted sub nom. Maryland v. King, No. 12-207 (U.S. Nov. 9, 2012)
  • Anderson v. Commonwealth, 650 S.E.2d 702 (Va. 2007) (state arrestee law upheld under unspecified balancing test and analogy to fingerprinting as a booking procedure)
  • Related case: State v. Franklin, 76 So.3d 423 (La. 2011) (no search warrant required to take a DNA sample from a murder defendant for use in the murder investigation because he had to submit a sample “as a routine incident of booking” anyway)

Appellate: State Intermediate Courts (opinions not reviewed by higher courts) (0-2)

  • People v. Buza, 129 Cal.Rptr.3d 753 (Cal. Ct. App. 2011) (unconstitutional under balancing tests), rev. granted, 262 P.3d 854 (Cal. 2011)
  • In re Welfare of C.T.L., 722 N.W.2d 484 (Minn. Ct. App. 2006) (state arrestee law struck down as per se unreasonable without probable cause and a warrant)

Appellate: Federal Courts (2-0)

  • United States v. Mitchell, 652 F.3d 387 (3d Cir. 2011) (en banc) (federal arrestee law upheld under “totality of circumstances” balancing test)
  • Haskell v. Harris, 669 F.3d 1049 (9th Cir. 2012) (state arrestee law upheld under “totality of circumstances” balancing test), reh’g en banc granted, 686 F.3d 1121 (9th Cir. 2012)
  • United States v. Pool, 621 F.3d 1213 (9th Cir. 2010) (federal arrestee law upheld under “totality of circumstances” balancing test), vacated as moot, 659 F.3d 761 (9th Cir. 2011) (en banc)
  • Related case: Friedman v. Boucher, 580 F.3d 847 (9th Cir. 2009) (an arrest does not justify DNA sampling without an applicable statute)

Trial Courts: Federal (not reviewed by higher courts) (1-1)

  • United States v. Thomas, No. 10-CR-6172 CJS, 2011 WL 1627321 (W.D.N.Y. Apr. 27, 2011) (federal arrestee law upheld under “special needs” balancing test), dismissed, No. 11-1742 (2d Cir. Sept. 20, 2011), ECF No. 43.
  • Amended Order Denying the Government’s Motion to Compel DNA Samples, United States v. Frank, No. CR-092075-EFS-1(E.D. Wash. Mar. 10, 2010), available at http://www.dnaresource.com/documents/USvFrank.pdf (applying totality balancing to a limited list of interests to find compulsory collection before conviction unreasonable)
  • Related case: United States v. Purdy, No. 8:05CR204, 2005 WL 3465721 (D. Neb. 2005) (forcibly taking a buccal swab from an arrestee violates Fourth Amendment in the absence of a statute providing for a uniform and limited system of sampling)

Trial Courts: Federal (reviewed by higher courts) (2-1)

  • United States v. Mitchell, 681 F.Supp.2d 597 (W.D.Pa. 2009) (federal law held unenforceable), rev’d, 652 F.3d 387 (3d Cir. 2011) (en banc)
  • United States v. Pool, 645 F.Supp.2d 903 (E.D.Cal. 2009) (federal arrestee law upheld under “totality of circumstances” balancing test), aff’d, 621 F.3d 1213 (9th Cir. 2010), affirming opinion vacated as moot, 659 F.3d 761 (9th Cir. 2011) (en banc)
  • Haskell v. Brown, 677 F.Supp.2d 1187 (N.D. Cal. 2009) (denying a preliminary injunction against the enforcement of California’s arrestee sampling law in large part because the balance of interests establishes that the requirement is reasonable), aff’d sub nom. Haskell v. Harris, 669 F.3d 1049 (9th Cir.), reh’g en banc granted, 686 F.3d 1121 (9th Cir. 2012)


Table 2. Law Review Articles and Notes

Faculty

  • D.H. Kaye, The Constitutionality of DNA Sampling on Arrest, 10 Cornell J.L. & Pub. Pol’y 455-508 (2001) (a statute with sufficient protections to confine the government to identifying information is constitutional under the special needs exception)
  • Tracey Maclin, Is Obtaining an Arrestee’s DNA a Valid Special Needs Search Under the Fourth Amendment? What Should (and Will) the Supreme Court Do?, 34 J.L. Med. & Ethics 165, 178-82 (2006) (predicting that the Supreme Court will uphold taking DNA from arrestees under a balancing test but stating that it should reject the practice as per se unreasonable)
  • D. H. Kaye, Who Needs Special Needs? On the Constitutionality of Collecting DNA and Other Biometric Data from Arrestees, 34 J.L. Med. & Ethics 188 (2006) (proposing a “biometric information exception” to the warrant requirement)
  • Brian Gallini, Step Out of the Car: License, Registration, and DNA Please, 62 Ark. L. Rev. 475 (2009) (Arkansas law unconstitutional because it does not require a judicial finding of probable cause arrest, contains inadequate safeguards to protect the samples and records, and because it does not fall within an established exception to the warrant requirement)
  • Kevin Lapp & Joy Radice, A Better Balancing: Reconsidering Pre-Conviction DNA Extraction from Federal Arrestees, 90 N. Car. L. Rev. Addendum 157 (2012) (pre-conviction DNA extraction should be permitted only after a neutral third-party finding of probable cause and DNA samples should be destroyed)
  • David H. Kaye, Drawing Lines: Unrelated Probable Cause as a Prerequisite to Early DNA Collection, 91 N.C. L. Rev. Addendum 1 (2012) (a formal finding of probable cause for an unrelated arrest is not constitutionally required)
  • David H. Kaye, On the “Considered Analysis” of DNA Collection Before Conviction, 60 UCLA L. Rev. Discourse, (forthcoming March 2013)
  • David H. Kaye, A Fourth Amendment Theory for Arrestee DNA and Other Biometric Databases, U. 15 Pa. J. Const. L. No. 4 (forthcoming 2013)
  • Related article: Robert Molko, The Perils of Suspicionless DNA Extraction of Arrestees Under California Proposition 69: Liability of the California Prosecutor for Fourth Amendment Violation? The Uncertainty Continues in 2010, 37 W. St. U. L. Rev. 183 (2010) (reaching no conclusions)

Student

  • Martha L. Lawson, Note, Personal Does Not Always Equal “Private”: The Constitutionality of Requiring DNA Samples from Convicted Felons and Arrestees, 9 Wm. & Mary Bill Rts. J. 645 (2001) (the government’s interest in mandatory testing of all those arrested outweighs individuals’ privacy interests)
  • Rene� A. Germaine, Comment, “You Have the Right to Remain Silent. . . You Have No Right to Your DNA” Louisiana’s DNA Detection of Sexual and Violent Offender’s Act: An Impermissible Infringement on Fourth Amendment Search and Seizure, 22 J. Marshall J. Computer Info. L. 759 (2004) (unconstitutional under balancing test other than special needs)
  • Robert Berlet, Comment, A Step Too Far: Due Process and DNA Collection in California after Proposition 69, 40 U.C. Davis L. Rev. 1481 (2007) (with certain modifications, arrestee DNA sampling as provided for under California law would be constitutional)
  • John D. Biancamano, Note, Arresting DNA: The Evolving Nature of DNA Collection Statutes and Their Fourth Amendment Justifications, 70 Ohio St. L.J. 619 (2009) (unconstitutional under special needs and totality of the circumstances tests)
  • Corey Preston, Note, Faulty Foundations: How the False Analogy to Routine Fingerprinting Undermines the Argument for Arrestee DNA Sampling, 19 Wm. & Mary Bill Rts. J. 475 (2010)
  • Ashley Eiler, Note, Arrested Development: Reforming the Federal All-Arrestee DNA Collection Statute to Comply with the Fourth Amendment, 79 Geo. Wash. L.Rev. 1201, 1220 (2011)
  • Lauren N. Hobson, Note, North Carolina’s Arrested Development: Fourth Amendment Problems in the DNA Database Act of 2010, 89 N.C. L. Rev. 1309 (2011) (unconstitutional because no existing exception to the Warrant Clause applies)
  • Kimberly A. Polanco, Note, Constitutional Law-The Fourth Amendment Challenge to DNA Sampling of Arrestees Pursuant to the Justice for All Act of 2004: A Proposed Modification to the Traditional Fourth Amendment Test of Reasonableness, 27 U. Ark. Little Rock L. Rev. 483 (2005) (constitutional under a balancing test)
  • Related note: Jacqueline K. S. Lew, Note, The Next Step in DNA Databank Expansion? The Constitutionality of DNA Sampling of Former Arrestees, 57 Hastings L.J. 199 (2005) (unconstitutional as applied to “former arrestees”)


References

Martin Kaste, Wash. Lawmakers Fight for DNA Sampling at Arrest, All Things Considered, Feb. 28, 2012, http://www.npr.org/2012/02/28/147225828/wash-lawmakers-fight-for-dna-sampling-at-arrest, accessed Aug. 17, 2012

15 La . Rev. Stat. � 609(A)(1) (“A person who is arrested for a felony sex offense or other specified offense, including an attempt, conspiracy, criminal solicitation, or accessory after the fact of such offenses on or after September 1, 1999, shall have a DNA sample drawn or taken at the same time he is fingerprinted pursuant to the booking procedure.”), derived from Act No. 737, approved July 9, 1997, and amended in 2003 (adding the phrase “including an attempt, conspiracy, criminal solicitation, or accessory after the fact of such offenses”)

Dear Judges: A Letter from the Electronic Frontier Foundation to the Ninth Circuit

On the eve of the en banc oral argument in Haskell v. Harris, The Electronic Frontier Foundation (EFF) filed a letter asking “the Court to consider the ENCODE project findings in determining the outcome of this case.” It seems hard to oppose the idea that the court should consider relevant scientific research, but without input from the scientific community, will the judges do better than they have in the past as “amateur scientists” (to use the skeptical phrase of Chief Justice Rehnquist in Daubert v. Merrell Dow Pharmaceuticals, Inc.)?

Deciphering the ENCODE papers’ descriptions of the data is no easy task, and EFF’s lawyers do not seem to be up to it. Their letter asserts that the project “has determined that more than 80% of DNA once thought to be no more than ‘junk’ has at least one biochemical function, controlling how our cells, tissue and organs behave.” This is not a fair characterization of the findings. Which geneticist ever claimed that all noncoding DNA plays no role in how cells behave? The issue always has been how much junk, how much func — and what “functions”?

What does EFF mean by “controlling”? Making organs function? Stimulating tissue growth? Turning normal cells into cancerous ones? Making us tall or short, fat or skinny, gay or straight? None of those things are mentioned in the Nature cover story cited in the letter. Instead, the EFF relies on New York Times reporter Gina Kolata’s misleading news article for the letter’s claim that “The ENCODE project has determined that ‘junk’ DNA plays a critical role in determining a person’s susceptibility to disease and physical traits like height.”

My earlier postings described the limited meaning of the phrase “biochemical function” in the cited paper. I’d love to see a citation to a page of an ENCODE paper that asserts that fully 80% of the noncoding DNA is determining “susceptibility to disease and physical traits like height.” And if I were a judge, I would demand an explanation of why “physical traits like height” are, in the words of the EFF letter, “sensitive and private.”

After the judges consider the ENCODE papers (by having their law clerks read them?), will they be better informed about the actual privacy implications of the CODIS loci than they were before this excursion into this realm of the bioinformatics? I would not bet on it, but maybe I am growing cynical.

The Constitutionality of DNA Collection Before Conviction: An Updated Scorecard

Note: This scorecard has been superseded. Please check for later editions.

Fifteen years ago, Louisiana adopted a law mandating that “[a] person who is arrested for a felony sex offense or other specified offense . . . shall have a DNA sample drawn or taken at the same time he is fingerprinted pursuant to the booking procedure.” Today, the movement to acquire DNA from individuals not convicted of a crime and to check it against state and national databases of DNA profiles from unsolved crimes is snowballing. As of early 2012, 26 states and the federal government had laws providing for DNA sampling before any conviction is obtained. Most other countries with DNA databases also collect samples on arrest.

The DNA-on-arrest laws in the U.S. had a placid childhood, with surprisingly few challenges to their constitutionality. This period of calm is over. Conflicting opinions are emerging on the reasonableness of these searches under the Fourth Amendment. Within the next few years, it seems likely that, as Kansas State Representative Pat Colloton (R), who authored the bill that initiated her state’s DNA sampling program predicted, “this issue will go to the United States Supreme Court.” (Gramlich 2006). In fact, if U.S. Supreme Court Chief Justice Roberts has his way, the Court will take up the issue in its 2012-2013 Term.

This posting presents a scoreboard on the litigation and scholarly commentary to date. If any players or contests have been omitted, I hope that readers will correct those omissions by leaving a comment. The law review articles listed in the table do not include ones on the constitutionality of convicted-offender databases. Authors who have contended that these databases are unconstitutional would reach the same conclusion for a database that includes arrestees, but the lower courts have resoundingly rejected their analyses. Therefore, little would be gained by keeping track of the many articles on convicted-offender databases.

The tables make the point that as yet there is no consensus on the constitutionality of taking DNA samples during a custodial arrest with the intention of running database searches (in the absence of a warrant and probable cause to believe that the search will produce a hit in the database).


Table 1. Case law (as of August 17, 2012)

Appellate: State Supreme Courts (1.5-1.5)

  • Mario W. v. Kaipio, Commissioner, No. CV-11-0344-PR (Ariz. June 27, 2012) (state arrestee law for juveniles constitutional insofar as it allows sampling as a booking procedure, but pre-conviction analysis of the sample is unconstitutional under a totality-of-the-circumstances standard and an analogy to searching containers)
  • King v. State, 42 A.3d 549 (Md. 2012) (state arrestee law unconstitutional “as applied” under “totality of the circumstances” balancing test), pet.for cert. filed, Aug. 14, 2012
  • Anderson v. Commonwealth, 650 S.E.2d 702 (Va. 2007) (state arrestee law upheld under unspecified balancing test and analogy to fingerprinting as a booking procedure)
  • Related case: State v. Franklin, 76 So.3d 423 (La. 2011) (no search warrant was required to take a DNA sample from a murder defendant for use in the murder investigation because he had to submit a sample “as a routine incident of booking” anyway)

Appellate: State Intermediate Courts (opinions not reviewed by higher courts) (0-2)

  • People v. Buza, 129 Cal.Rptr.3d 753 (Cal. Ct. App. 2011) (unconstitutional under balancing tests), rev. granted, 262 P.3d 854 (Cal. 2011)
  • In re Welfare of C.T.L., 722 N.W.2d 484 (Minn. Ct. App. 2006) (state arrestee law struck down as per se unreasonable without probable cause and a warrant)

Appellate: Federal Courts (2-0)

  • United States v. Mitchell, 652 F.3d 387 (3d Cir. 2011) (en banc) (federal arrestee law upheld under “totality of circumstances” balancing test)
  • Haskell v. Harris, 669 F.3d 1049 (9th Cir. 2012) (state arrestee law upheld under “totality of circumstances” balancing test), reh’g en banc granted, 2012 WL 3038593 (July 25, 2012)
  • United States v. Pool, 621 F.3d 1213 (9th Cir. 2010) (federal arrestee law upheld under “totality of circumstances” balancing test), vacated as moot, 659 F.3d 761 (9th Cir. 2011) (en banc)
  • Related case: Friedman v. Boucher, 580 F.3d 847 (9th Cir. 2009) (an arrest does not justify DNA sampling without an applicable statute)

Trial Courts: Federal (not reviewed by higher courts) (1-1)

  • United States v. Thomas, No. 10-CR-6172 CJS, 2011 WL 1627321 (W.D.N.Y. Apr. 27, 2011) (federal arrestee law upheld under “special needs” balancing test), dismissed, No. 11-1742 (2d Cir. Sept. 20, 2011), ECF No. 43.
  • Amended Order Denying the Government’s Motion to Compel DNA Samples, United States v. Frank, No. CR-092075-EFS-1(E.D. Wash. Mar. 10, 2010), available at http://www.dnaresource.com/documents/USvFrank.pdf (applying totality balancing to a limited list of interests to find compulsory collection before conviction unreasonable)
  • Related case: United States v. Purdy, No. 8:05CR204, 2005 WL 3465721 (D. Neb. 2005) (forcibly taking a buccal swab from an arrestee violates Fourth Amendment in the absence of a statute providing for a uniform and limited system of sampling)

Trial Courts: Federal (reviewed by higher courts) (2-1)

  • United States v. Mitchell, 681 F.Supp.2d 597 (W.D.Pa. 2009) (federal law held unenforceable), rev’d, 652 F.3d 387 (3d Cir. 2011) (en banc)
  • United States v. Pool, 645 F.Supp.2d 903 (E.D.Cal. 2009) (federal arrestee law upheld under “totality of circumstances” balancing test), aff’d, 621 F.3d 1213 (9th Cir. 2010), affirming opinion vacated as moot, 659 F.3d 761 (9th Cir. 2011) (en banc)
  • Haskell v. Brown, 677 F.Supp.2d 1187 (N.D. Cal. 2009) (denying a preliminary injunction against the enforcement of California’s arrestee sampling law in large part because the balance of interests establishes that the requirement is reasonable), aff’d sub nom. Haskell v. Harris, 669 F.3d 1049 (9th Cir. 2012)


Table 2. Law Review Articles and Notes (as of August 17, 2012)

Faculty

  • D.H. Kaye, The Constitutionality of DNA Sampling on Arrest, 10 Cornell J.L. & Pub. Pol’y 455-508 (2001) (a statute with sufficient protections of private, nonidentifying information is constitutional under the special needs exception)
  • Tracey Maclin, Is Obtaining an Arrestee’s DNA a Valid Special Needs Search Under the Fourth Amendment? What Should (and Will) the Supreme Court Do?, 34 J.L. Med. & Ethics 165, 178-82 (2006) (predicting that the Supreme Court will uphold taking DNA from arrestees under a balancing test but that it should reject the practice as per se unreasonable)
  • D. H. Kaye, Who Needs Special Needs? On the Constitutionality of Collecting DNA and Other Biometric Data from Arrestees, 34 J.L. Med. & Ethics 188 (2006) (proposing a “biometric information exception” to the warrant requirement)
  • Brian Gallini, Step Out of the Car: License, Registration, and DNA Please, 62 Ark. L. Rev. 475 (2009) (Arkansas law unconstitutional because it does not require a judicial finding of probable cause arrest, contains inadequate safeguards to protect the samples and records, and because it does not fall within an established exception to the warrant requirement)
  • Kevin Lapp & Joy Radice, A Better Balancing: Reconsidering Pre-Conviction DNA Extraction from Federal Arrestees, 90 N. Car. L. Rev. Addendum 157 (2012) (pre-conviction DNA extraction should be permitted only after a neutral third-party finding of probable cause and DNA samples should be destroyed)
  • —, Drawing Lines: Unrelated Probable Cause as a Prerequisite to Early DNA Collection,
    91 N.C. L. Rev. Addendum No. 1 (forthcoming 2012
  • David H. Kaye, A Fourth Amendment Theory for Arrestee DNA and Other Biometric Databases, U. 15 Pa. J. Const. L. No. 4 (forthcoming 2013)
  • Related article: Robert Molko, The Perils of Suspicionless DNA Extraction of Arrestees Under California Proposition 69: Liability of the California Prosecutor for Fourth Amendment Violation? The Uncertainty Continues in 2010, 37 W. St. U. L. Rev. 183 (2010) (reaching no conclusions)

Student

  • Martha L. Lawson, Note, Personal Does Not Always Equal “Private”: The Constitutionality of Requiring DNA Samples from Convicted Felons and Arrestees, 9 Wm. & Mary Bill Rts. J. 645 (2001) (the government’s interest in mandatory testing of all those arrested outweighs individuals’ privacy interests)
  • Rene� A. Germaine, Comment, “You Have the Right to Remain Silent. . . You Have No Right to Your DNA” Louisiana’s DNA Detection of Sexual and Violent Offender’s Act: An Impermissible Infringement on Fourth Amendment Search and Seizure, 22 J. Marshall J. Computer Info. L. 759 (2004) (unconstitutional under balancing test other than special needs)
  • Robert Berlet, Comment, A Step Too Far: Due Process and DNA Collection in California after Proposition 69, 40 U.C. Davis L. Rev. 1481 (2007) (with certain modifications, arrestee DNA sampling as provided for under California law would be constitutional)
  • John D. Biancamano, Note, Arresting DNA: The Evolving Nature of DNA Collection Statutes and Their Fourth Amendment Justifications, 70 Ohio St. L.J. 619 (2009) (unconstitutional under special needs and totality of the circumstances tests)
  • Corey Preston, Note, Faulty Foundations: How the False Analogy to Routine Fingerprinting Undermines the Argument for Arrestee DNA Sampling, 19 Wm. & Mary Bill Rts. J. 475 (2010)
  • Ashley Eiler, Note, Arrested Development: Reforming the Federal All-Arrestee DNA Collection Statute to Comply with the Fourth Amendment, 79 Geo. Wash. L.Rev. 1201, 1220 (2011)
  • Lauren N. Hobson, Note, North Carolina’s Arrested Development: Fourth Amendment Problems in the DNA Database Act of 2010, 89 N.C. L. Rev. 1309 (2011) (unconstitutional because no existing exception to the Warrant Clause applies)
  • Kimberly A. Polanco, Note, Constitutional Law-The Fourth Amendment Challenge to DNA Sampling of Arrestees Pursuant to the Justice for All Act of 2004: A Proposed Modification to the Traditional Fourth Amendment Test of Reasonableness, 27 U. Ark. Little Rock L. Rev. 483 (2005) (constitutional under a balancing test)
  • Related note: Jacqueline K. S. Lew, Note, The Next Step in DNA Databank Expansion? The Constitutionality of DNA Sampling of Former Arrestees, 57 Hastings L.J. 199 (2005) (unconstitutional as applied to “former arrestees”)


References

John Gramlich, States Collecting DNA from Arrestees, July 27, 2006, http://www.stateline.org/live/details/story?contentId=129960, accessed Nov. 28, 2009

Martin Kaste, Wash. Lawmakers Fight for DNA Sampling at Arrest, All Things Considered, Feb. 28, 2012, http://www.npr.org/2012/02/28/147225828/wash-lawmakers-fight-for-dna-sampling-at-arrest, accessed Aug. 17, 2012

15 La . Rev. Stat. � 609(A)(1) (“A person who is arrested for a felony sex offense or other specified offense, including an attempt, conspiracy, criminal solicitation, or accessory after the fact of such offenses on or after September 1, 1999, shall have a DNA sample drawn or taken at the same time he is fingerprinted pursuant to the booking procedure.”), derived from Act No. 737, approved July 9, 1997, and amended in 2003 (adding the phrase “including an attempt, conspiracy, criminal solicitation, or accessory after the fact of such offenses”)

CODIS Loci Ready for Disease Prediction, Vermont Court Says

A trial court in Vermont has gone where no court has gone before. In State v. Abernathy [1], Chittenden Superior Court Judge Alison Sheppard Arms found that because “[s]ix CODIS loci … have associations with an increased risk of disease or have functional properties,” the custodians of law enforcement DNA databases can make “probabilistic predictions of disease.” According to the judge, modern research has established that “some of the CODIS loci have associations with identifiable serious medical conditions,” making the scientific evidence “sufficient to overcome the previously held belief[s]” about the innocuous nature of the CODIS loci.

Emphasizing this finding that richly information-laden STR profiles reside in identification databases, the court proceeded to strike down “Vermont’s new pre-conviction DNA testing requirement … that requires submission of a DNA sample from a ‘person for whom the court has determined at arraignment there is probable cause that the person has committed a felony … .'” In an atypical opinion, the court applied a “special needs” balancing test, placed the burden of proof on the state, and held that this law violates the state constitution.

A major theme in Judge Arms’ discussion of human genetics is that there has been a revolution in our understanding of what used to be called “junk DNA.” Even though the CODIS loci originally were described as “junk” in “good faith,” that understanding was wrong–we now know that even DNA that does not code for proteins is biologically important.1 Other judges, advocacy groups, and at least one law professor have jumped from the discovery that the triplet code for proteins is not the sole message inscribed in DNA to the conclusion that all the CODIS loci may well convey significant information about disease states or propensities.

There are a couple of problems with this reasoning. All that we actually know is that some non-protein-coding DNA regulates gene expression. Scientists do not believe that all non-protein-coding sequences are regulatory. In particular, whether noncoding, nontranscribed, and largely nonconserved sequences are part of a regulatory system (even if their presence might have some function) is far from established.2 The opinion cites an essay I wrote making this point [3] but then ignores its content. It quotes the legal treatise, Modern Scientific Evidence, for the view that “while it is generally agreed that no single loci [sic] contains a gene that definitively determines any discernible characteristic of significance, there are nonetheless indications that they may play a role in some sensitive matters, and continued debates about their importance.” Before Abernathy, it appeared that the “continued debates” ended five years ago with agreement on what already was known — that even if the loci do not play a functional role, they might, like certain fingerprint patterns or blood types, have some statistical associations with diseases.3

Venturing beyond the inconclusive generalities like these, Abernathy refers to the biomedical literature on five loci and to a testifying expert’s characterization of the literature (with no specific references) on another locus. The opinion does not give the magnitude of any putative association, let alone any measure of predictive utility.4. It uses the following phrases: “a fairly large effect size,” “a modest association,” “not the most strongly associated,” “small but … not zero,”5 and “cannot find that this marker has no association.” It does not provide measures of the uncertainty in these estimates. Finally, the opinion does not discuss the extent to which the studies said to prove that the associations have been replicated.6

Of course, few judges could confidently review the flood of studies on human genetics. Unlike some previous opinions and law review articles, however, this opinion does not rely entirely or largely on newspaper headlines and stories about “junk DNA.” Here, the iconoclastic findings came after an evidentiary hearing. But, as has happened before with DNA evidence [8], the evidentiary hearing was one-sided. The defendants presented the testimony of Professor Gregory Wray of Duke University, a specialist in genetics and evolutionary biology, and the state did not to present an expert in medical genetics or genomics to counter his testimony. Although Professor Wray reviewed the biomedical literature before he testified, the defense submitted no written report, and the state rather than the defense introduced the papers cited in the opinion as exhibits. Scanning the testimony, it seems to me that Dr. Wray never was asked a series of critical questions:

  1. Is it generally accepted that the associations he pointed to apply to the population of individuals whose DNA is placed in law enforcement databanks?
  2. Assuming that they do apply to that population, what is the positive and negative predictive value of any inference about disease status or propensity derived from these particular CODIS alleles?
  3. How would the predictive or diagnostic disease-related information in a state DNA database compare to that of (a) color photographs, (b) fingerprints, (c) blood types used in conventional serology, and (d) the HLA-A and HLA-B haplotypes that used to be a mainstay of parentage testing?
  4. Are the CODIS genotypes likely to be substantially more predictive in the future?

Until these questions are answered, there is reason to ask whether the trial court’s findings fairly represent the status quo or instead are grim predictions of what could come to pass.

Notes

1. For a short audio clip reporting on the revolutionary discoveries, click on Joe Palca, Don’t Throw It Out: ‘Junk DNA’ Essential In Evolution, All Things Considered, Aug. 19, 2011 (with a sound bite from Professor Gregory Wray, among other interviewees).

2. According to Judge Arms,”[t]he term ‘junk DNA’ was coined in the early 1980s.” In fact, the phrase normally is attributed to Susumu Ohno, who used it in the title of a 1972 paper [2]. Ohno did not reason that “we don’t know what noncoding DNA does, therefore, is it is useless junk.” Indeed, he proposed that the duplication and inactivation of genes produce non-protein-coding DNA (now designated pseudogenes) that might have a function. A video introducing Ohno and reading an excerpt from the paper about the role of the noncoding sequences as “spacers” with evolutionary importance can be found at http://www.youtube.com/watch?v=nomI35DJB40&noredirect=1. Since 1972, other possible functions for noncoding DNA have been proposed. Some functions imply that the sequences should be conserved as one species evolves into another. Others, such as Ohno’s suggestion that noncoding sequences act as buffers between genes, do not.

3. See [5, p. 228] (referring to “a brief debate in the legal literature” necessitated by “a misunderstanding by Simon Cole over some of the things I [John Butler] had written in a review article on STR markers” and emphasizing that “STR markers used for human identity testing do not predict disease.”). One source of confusion, which also infects the Abernathy opinion is the thought that a statistical association between a locus and a disease detected in a family study in say, Northern India, establishes that the same association exists throughout the population in the United States.

4. Even a strong association (large relative risk) would not make for a useful predictive test if the prevalence of the condition is very small. See [3].

5. The sentence “[t]he relative risk of developing schizophrenia associated with this marker is small but it is not zero” is technically flawed. A relative risk of 1 would express a 0 correlation.

6. Replication is always important, and the problem of false positives is especially acute with genome-wide association studies. See, e.g., [6, 7].

References

1. State v. Abernathy, No. 3599-9-11 (Vt. Super. Ct. June 1, 2012).

2. S. Ohno, So Much “Junk” DNA in our Genome, 23 Brookhaven Symp. Biol. 366 (1972) (also published in Evolution of Genetic Systems 366 (H.H. Smith ed. 1972).

3. David H. Kaye, Please, Let’s Bury the Junk: The CODIS Loci and the Revelation of Private Information, 102 Nw. U. L. Rev. Colloquy 70 (2007).

4. David H. Kaye, Mopping Up After Coming Clean About “Junk DNA”, Nov. 23, 2007, available at http://ssrn.com/abstract=1032094.

5. John M. Butler, Advanced Topics in Forensic DNA Typing: Methodology (2012).

6. D.J. Hunter & P. Kraft, Drinking from the Fire Hose–Statistical Issues in Genomewide Association Studies, 357 N. Engl. J. Med. 436 (2007).

7. Thomas A. Pearson, & Teri A. Manolio, How to Interpret a Genome-wide Association Study, 299 J. Am. Med. Ass’n 1335 (2008).

8. David H. Kaye, The Double Helix and the Law of Evidence (2010).

Cross-posted to Forensic Science, Statistics, and the Law.

Can King Reign? A Less-than-regal Edict in Maryland

Maryland’s highest court is its Court of Appeals. Three days ago, in King v. State [1], this court became the first supreme court of any state to hold that taking a DNA sample from an arrestee is unconstitutional. But you would not know this from the court’s opinion.

Instead, the Maryland court purports to follow “the Minnesota Supreme Court in C.T.L.” Considering that the Minnesota Supreme Court did not decide C.T.L. and that it has yet to consider the routine practice of taking DNA prior to arrest [2], this is no small feat.

The majority opinion in King, penned by Judge Glenn T. Harrell, Jr., contains additional gaffes. It refers to Judge Marjorie Rendell of the U.S. Court of Appeals for the Third Circuit as a man, and it asserts that “Fourth Amendment analyses” should be “more stringent” than “a First Amendment ‘rational basis’ review” — whatever that may mean.

Of course, these infelicities do not mean that the opinion is wrong — although it is long on description and short on analysis. The balancing of state and individual interests that is pivotal to the opinion is less than lucid. We can get a sense of the court’s approach from its discussion of the individual interests that the opinion seeks to protect. To begin with, the Maryland court gives more weight than most courts do to the interest in being free from an unwanted but painless and relatively minor intrusion into one’s body. Judge Harrell writes that DNA

is collected by swabbing the interior of a cheek (or blood draw or otherwise obtained biological material). While the physical intrusion of a buccal swab is deemed minimal, it remains distinct from a fingerprint. We must consider that “[t]he importance of informed, detached and deliberate determinations of the issue whether or not to invade another’s body in search of evidence of guilt is indisputable and great.” Schmerber, 384 U.S. at 770.

The puzzle here is that, if the physical intrusion is indeed minimal, why is it of “great importance” to have a “detached . . . determination” in the form of a judicial warrant? It cannot be the peculiar notion that laboratory analysis to produce an identifying profile is a separate search requiring a warrant. If that were so, the laboratory analysis of “abandoned” DNA of a suspect also would require a warrant. This might be a reasonable position–but the King court does not retreat from State v. Williamson, 993 A.2d 626 (Md. 2010). There, the police recovered and then analyzed DNA from a drinking cup given to a suspect at a police station, and the Maryland Court Appeals flatly rejected the separate-search argument. Furthermore, if the “physical invasion” aspect of the DNA collection were of such great importance, the state could avoid the impact of King by changing the method for collecting the DNA. Instead of a buccal swab, the arrestee could be asked to place his fingers on a sticky pad to which some cells would adhere.

The interest that actually seems to be driving the opinion is not that the arrestee is compelled open his mouth so that some cells can be scraped from the inside of his cheek. It is, in the King court’s words, the possibility that “the vast genetic treasure map that remains in the DNA sample retained by the State” will be read or released in violation of state law. But the opinion utterly fails to address whether the state’s possession of that unread map (the physical sample kept under lock and key) unreasonably interferes with a defined privacy interest. And even if it does, could not Maryland acquire the identification profiles — data that are nothing like “[a] person’s entire genetic makeup and history” — and then destroy the physical sample to satisfy the court’s oddly applied balancing test?

Despite its problems, both superficial and fundamental, the King opinion is not devoid of all redeeming value. For example, the court correctly distinguishes between the use of a biometric identifier for identification and its use of it for intelligence purposes. But the opinion sheds no new light on the constitutional issue and casts some grotesque shadows. Readers seeking a deeper analysis will have to look elsewhere [3].

References

  1. King v. State, No. 68, 2012 WL 1392636 (Md. Apr. 24, 2012)
  2. In re Welfare of C.T.L., 722 N.W.2d 484 (Minn. Ct. App. 2006)
  3. David H. Kaye, A Fourth Amendment Theory for Arrestee DNA and Other Biometric Databases, University of Pennsylvania Journal of Constitutional Law, Vol. 15 (in press)

Postscript

Alan Lazerow pointed out that the court’s opinion does not have the superficial flaws that caused my jaw to drop and pen to move. Thankfully, the opinion as now posted on Maryland’s website and in Westlaw has these blemishes removed..

Cross-posted to the Forensic Science, Statistics and the Law.

The Newest from the Ninth Circuit on Arrestee DNA Databases

As of today, the Ninth Circuit Court of Appeals has twice upheld the constitutionality of DNA collection before conviction (DNA-BC). The first opinion came in United States v. Pool, 621 F.3d 1213 (9th Cir. 2010). There, the panel applied a totality-of-the-circumstances balancing test to uphold the federal arrestee law. However, the full court promptly agreed to rehear the case en banc (thus vacating the opinion in Pool).

At that point, another challenge to DNA-BC was pending. Haskell v. Brown, 677 F.Supp.2d 1187 (N.D. Cal. 2009), was a class action brought to enjoin enforcement of the California Proposition that initiated DNA arrestee sampling in that state. Determining that this law was, on balance, constitutionally reasonable, District Judge Charles Breyer, denied the request for a preliminary injunction. Plaintiffs appealed this ruling.

With eleven Ninth Circuit judges stirring the pot in Pool, Haskell moved to the back burner. But then Pool pled guilty, and the en banc court dropped his case as moot. Pool, 659 F.3d 761 (9th Cir. 2011) (en banc). Hence, the Haskell panel returned to work.

Today the case boiled over with the release of the panel’s opinion. As in Pool, the court split 2-1 in favor of DNA-BC. The two judges in Haskell to side with the state were Milan D. Smith, Jr., and James Dale Todd, a senior district judge for the Western District of Kentucky. Judge William A. Fletcher wrote a sharp dissent. Judge Smith devoted much of his majority opinion to refuting Judge Fletcher’s dissent. As a preliminary matter, they disagreed over whether Friedman v. Boucher, 580 F.3d 847 (9th Cir. 2009), a previous Ninth Circuit case not even involving a DNA database forced the court’s hand here. Judge Smith correctly wrote that “very broad dicta” in the case did not compel any particular result in Haskell.

With the path cleared, Judge Smith asked whether the “totality of the circumstances” were such that DNA-DB under California law was “reasonable” within the meaning of the Fourth Amendment. Judge Fletcher disputed the use of this amorphous standard. On this issue, neither opinion is convincing. Time after time, in case after case, the Supreme Court has repeated an important mantra–full fledged searches and seizures intended to produce evidence of criminal conduct are per se unreasonable, regardless of the other circumstances, when they are undertaken without a warrant and when they do not fall within a categorical exception to this warrant requirement. E.g., Kentucky v. King, 131 S.Ct. 1849 (2011); City of Ontario v. Quon, 130 S.Ct. 2619 (2010); Katz v. United States, 389 U.S. 347, 357 (1967). Therefore, it will not do to state, as Judge Smith blandly did, that totality-of-the-circumstances balancing is the norm in Fourth Amendment cases. To the contrary, it is an anomaly that has been used only in two Supreme Court cases (involving probationers). Upholding DNA-BC therefore requires showing that the program falls within an established exception–or recognizing a new exception to accommodate the acquisition of fingerprints, photographs, and now, DNA profiles for use in databases. The former move is possible but takes considerable effort. The latter would be the more candid and convincing mode of analysis.

But just as the Haskell majority’s leap to totality balancing is largely unjustified, the dissent’s theory of why DNA-BC is unconstitutional is groundless. According to dissenting Judge Fletcher, the Supreme Court held in Hayes v. Florida, 470 U.S. 811 (1985), and Davis v. Mississippi, 394 U.S. 721 (1969), that identifying information (fingerprints, in those cases) “may not be taken from an arrestee solely for an investigative purpose, absent a warrant or reasonable suspicion that the [information] would help solve the crime for which he was taken into custody.” This characterization overlooks the most critical facts in the cases and the explicit reasoning of the opinions. Justice White’s majority opinion in Hayes could not have been clearer in explaining that the cases simply hold “that transportation to and investigative detention at the station house without probable cause or judicial authorization together violate the Fourth Amendment.” 470 U.S. at 815. That the fingerprints were used for investigative purposes and not just to establish the true identities of the arrested suspects had nothing to do with the constitutional infirmity. “[T]he fingerprints … were the inadmissible fruits of an illegal detention” (id. at 813) because “the police at that time were without probable cause for an arrest, there was no warrant, and [the suspects] had not consented to being taken to the station house.” Id. at 313-14. Not a single Justice dissented from this understanding of the issue. Yet, Judge Fletcher transformed the simple and unremarkable result in Hayes and Davis into a condemnation of all forms of DNA-BC. Judge Smith was kind to call this aggressive reading of the cases a “novel interpretation.”

The Haskell court also split on the outcome of the balancing test. The majority was quick to accept the state’s litany of interests in DNA-BC as weighty, whereas the dissent demanded more rigorous proof. Conversely, the dissent was quick to accept nonscientific speculations about the dangers of DNA profiles and the risks of misuse of retained DNA samples, whereas the majority was loath to invalidate today’s laws on the grounds that they might be misused or changed.

Further developments are likely in the Ninth Circuit. Of the six judges to vote in Haskell and Pool (three per case), two of them came from outside the circuit and sat by designation. Counting only the Ninth Circuit noses, the vote to uphold DNA-DB has been 2-2 — not exactly a stable alignment. Obviously, there is considerable turmoil among the Ninth Circuit judges, and an en banc order in Haskell seems probable.

Acknowledgments: Thanks to Jen Wagner for sending me a copy of today’s slip opinion in Haskell.

Cross-posted to Forensic Science, Statistics, and the Law.

Legislation to Implement Kinship Matching

A few years ago, “Jeffrey Rosen, a constitutional law professor at George Washington University, warned: ‘I can guarantee if familial searching proceeds, it will create a political firestorm.'” (1) But familial searching, as it is tendentiously called, prompted no huge political protests when California, Colorado, New York, and Virginia adopted it administratively. Now, legislative initiatives to implement it in various states (2, 3) and federally (4) have begun. However, the proposed legislation is timid, usually authorizing the practice only in murder and sexual assault cases and only after traditional investigative methods have failed.

References

1. Maura Dolan & Jason Felch, California Takes Lead on DNA Crime-fighting Technique: The State Will Search its Database for Relatives of Unidentified Suspects in Hopes of Developing Leads, Los Angeles Times, Apr. 26, 2008

2. Mike Cook, DNA — It’s All in the Family, Minnesota House of Representatives Session Weekly: News from the House, Apr. 8, 2011

3. Mark Scolforo, DNA Proposal Has Foes: Pa. Bill to Expand its Collection Opposed by the ACLU, Phil. Inquirer, Oct. 2, 2011

4. Press Release, Schiff’s Familial DNA Language Passes as Part of Conference Report, Nov. 21, 2011

An Odd Set of Odds in Kinship Matching with DNA Databases

The 22d International Symposium on the Future of Human Identification began yesterday with a set of workshops. One was on “familial searching.” The phrase refers to trawling the profiles in a DNA database for certain types of partial matches to a DNA profile from a crime-scene sample.

Partial matches that are useful in generating investigative leads to family members arise much more often when a particular kind of relative (say, a full sibling) is the source of the crime-scene sample than when an individual who is not closely related to the database inhabitant is the source. The ratio of the probability of the partial match under the former condition (a given genetic relationship) to the latter (unrelated individuals) is a likelihood ratio (LR). The LR (or, technically, its logarithm) for siblingship expresses the weight of the evidence in favor of the hypothesis that the source is full sibling as opposed to an unrelated individual.

After explaining the this idea, the first speaker presented the following formula:

“Odds” = LRautosomal x LRY-STR x 1/N         (1)

She attributed this formula to the California state DNA laboratory that does familial searching in that state. In this equation, N is the size of the database, LRautosomal is the likelihood ratio for the partial match at a set of autosomal STR loci, and LRY-STR is the likelihood ratio for the matching Y-STR haplotype.

She described this as a Bayesian computation that could lead to statements in court such as “there is a 98% probability” that the person whose DNA was found at the crime scene is a brother of Joe Smith, a convicted offender whose DNA profile is in a DNA database.

There are three interesting things to note about these suggestions. To begin with, it is not clear why such a statement would be introduced in a trial. By the time the suspect has become a defendant, a new sample of his DNA should have been tested to establish a full match to the crime-scene sample. At that point, why would the judge or jury care whether defendant is related to a database inhabitant. The relevance of the DNA evidence lies in the full match to the crime-scene sample, and the jury need not consider whether the defendant is a relative of someone not involved in the alleged crime. (One might ask whether the trawl through the database somehow degrades the probative value of the full match, but, if anything, it increases it. [1])

The issue could arise, however, if police were to seek a court order or search warrant to collect a DNA sample from the suspect. At that point, they would need to describe the significance of the partial match to the convicted offender.

This possibility brings us to the second noteworthy point about equation (1). The “odds” (or the corresponding probability) are not the way to present the weight of the partial match. Consider the prior probability of a match in a small database, say, of size N=2. Prior to considering the partial match, why would one think that the probability of a database inhabitant being the sibling of the criminal who resides outside the database is 1/N = 1/2? It is quite improbable that the database of two people includes a relative of every criminal who leaves DNA at a crime-scene. The a priori probability for a small database must be closer to 0 than 1/N.

That the prior probability is less than 1/N is a general result. The only exception occurs when it is absolutely certain that a sibling of the perpetrator is in the database. On that assumption, prior odds of 1 to N-1 are not unreasonable. But that assumption is entirely artificial, and to advise a magistrate that the posterior odds have the value computed according to (1) would be to overstate the implications of the partial match.

The third thing to note about dividing by N is that it accomplishes nothing in producing a viable list of partially matching profiles in a DNA database trawl. The straightforward approach is to produce a short list of candidates in the database whose first-degree relatives might be the source of the crime-scene sample. The minimum value of LRautosomal x LRY-STR should be large enough to keep the two conditional error probabilities (including a candidate when there is no relationship, and not including a candidate when there is a relationship) small. This threshold value does not depend on N. (A later speaker made this observation.)

Equation (1), it seems, is useless. Instead, the magistrate should be told the value of the LR and how often such large LRs would occur when a crime-scene sample comes from a relative versus how often it would occur when it comes from an related person.

Reference

1. David H. Kaye, 2009, Rounding Up the Usual Suspects: A Legal and Logical Analysis of DNA Database Trawls, North Carolina Law Review, 87(2), 425-503.