Tag Archives: arrestee

The Oral Argument in Maryland v. King — Part I

Oral argument before the Supreme Court in Maryland v. King took place on Tuesday, Feb. 26.1/ Alonzo King, Jr., had been arrested in 2009, then charged and convicted of an assault. A Maryland law requires defendants charged with certain crimes to provide a DNA sample–before they are even tried. On this basis, King’s identifying DNA profile was obtained and included in a database of DNA profiles from arrestees and convicts, to be checked periodically against DNA profiles recovered from crime scenes.

King’s DNA profile played no role in the assault case. The state did not want it for that prosecution. Rather, it wanted to see if his DNA might connect him to some unsolved crime. Sure enough, it linked him to an unsolved 2003 rape of a 52-year-old woman. In the ensuing trial for that crime, the state proved that King, then 19 and wearing a mask, broke down the door, held a gun to the woman’s head and sexually assaulted her. He was sentenced to life in prison.

The question before the Supreme Court was whether the state’s law mandating routine DNA sampling before conviction violates the Fourth Amendment’s protection against unreasonable searches or seizures.

I had the worst seat in the house — a small wooden chair against the far wall behind the farthest row of permanent seats. That hardly mattered. From any distance,  the argument would have appeared kaleidoscopic, with patterns forming and shifting apparently at random. Nevertheless, one major theme emerged from the questions: Is the rationale for upholding Maryland’s law confined to arrestees? Several Justices clearly were concerned that upholding this law would permit states or the federal government to acquire the DNA of everyone.

The Chief Justice introduced this line of questioning earlier in the argument for the state:

CHIEF JUSTICE ROBERTS: Your procedure limits the collection to certain violent offenses, right?

MS. WINFREE: It does, Mr. Chief Justice.

CHIEF JUSTICE ROBERTS: But your argument would not be so limited, would it? Under your theory, there’s no reason you couldn’t undertake this procedure with respect to anybody pulled over for a traffic violation?

MS. WINFREE: Well, in Maryland, it’s not just the fact that we have those — those violent crimes and burglaries. Actually, we don’t collect DNA unless someone is physically taken into custody. Now, with respect to —

CHIEF JUSTICE ROBERTS: Well, I understand. But there’s no reason you couldn’t, right? I gather it’s not that hard. Police officers who give Breathalyzer tests, they can also take a Q-tip or whatever and get a DNA sample, right?

MS. WINFREE: Well, what I would say to that is that with respect to a traffic stop, this Court said in Berkheimer that a motorist has an expectation that a traffic stop is going to be relatively brief and temporary, that he or she will be given a citation and sent on their way.

CHIEF JUSTICE ROBERTS: Well, how long does it take to — to undergo the procedure? You say, ah and then —

MS. WINFREE: It doesn’t take long, but what I was suggesting is that because of the nature of a traffic stop, this Court might well decide that a motorist has a reasonable expectation of privacy not to —

These answers are unsatisfying. In Illinois v. Caballes, 543 U.S. 405 (2005), the Court deemed the nature of a traffic stop irrelevant to the reasonableness of a search for something unrelated to the stop. Specifically, the Court rejected the argument that walking a drug sniffing dog around a car while an officer wrote the citation “converted the citizen-police encounter from a lawful traffic stop into a drug investigation, and because the shift in purpose was not supported by any reasonable suspicion that respondent possessed narcotics, it was unlawful.” Given that “governmental conduct that only reveals the possession of contraband ‘compromises no legitimate privacy interest,'” the Court concluded that the dog-sniff was not itself a search, and the traffic offense fully justified the temporary restraint on the driver’s freedom to travel was fully justified.

Rather than “the nature of the traffic stop” creating a reasonable expectation of privacy that would make the traffic-stop DNA sampling a search, it is the nature of DNA sampling (as currently conducted) that has this effect. Justice Scalia emphasized this when he later commented:

If there’s no reasonable expectation of privacy, there’s no search. But here, there is a search. You have a physical intrusion. You — you pull a guy’s cheek apart and stick a — a swab into his mouth. That’s a search — a reasonable expectation of privacy or not. 2/

Soon afterward, Maryland’s Chief Deputy Attorney General took another stab at explaining why its justifications for the law would not subject everyone to compulsory DNA sampling:

MS. WINFREE: Well, happily we don’t have to decide that one today. But what I — the cornerstone of our argument is that when an individual is taken into custody, an individual is arrested on a probable cause, on a probable cause arrest, that person by virtue of being in that class of individuals whose conduct has led the police to arrest him on — based on probable cause surrenders a substantial amount of liberty and privacy.

The U.S. Department of Justice’s Deputy Solicitor General elaborated at the outset of his presentation:

MR. DREEBEN: Thank you, Mr. Chief Justice, and may it please the Court: Arrestees are in a unique category, they are on the gateway into the criminal justice system.    They are no longer like free citizens who are wandering around on the streets retaining full impact Fourth Amendment rights. The arrest itself substantially reduces the individual’s expectation of privacy. The arrestee can be searched and sent to arrest. His property, whether or not connected with a crime, can be inventoried. When he’s taken into the jail situation, he can be subjected to a visual strip search. If he’s admitted to the population of the jail, he’ll be given a TB test and a thorough medical screen. These are not individuals who are like free citizens, and they are not like free citizens in another significant respect. Arrestees are rarely arrested for the first time. They tend to be repeat customers in the criminal justice system. Up to 70 percent of arrestees have been previously arrested.

The trouble with this argument should be obvious. Of course, arrestees have been arrested and may be searched in ways inapplicable (thankfully) to people who not currently in police custody. But the fact that “they are not like free citizens” does not necessarily mean that the justifications for taking their DNA are not just as powerful when applied to the general population. One must go beyond diffuse talk of surrendering “a substantial amount of liberty and privacy” to adequately distinguish this group from the general population for the purpose of DNA identification testing. The argument that arrestees are different just because they have been arrested (and are likely to be re-arrested) is empty.

One thing that gives the difference claim some content is the state’s argument that DNA databases do or can provide significant information for pretrial supervision of arrestees. Much of the hour’s argument focused on Maryland’s contention that the “purpose of the statute is to enable the state to identify perpetrators of serious crimes and — and to use the information to make bail determinations for people who are validly in their custody.” Part II of this series will describe the Justices’ often skeptical questioning on this point.


  1. For the same-day transcript, see http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-207.pdf.
  2. On its face, this comment seems to be internally inconsistent. The first sentence asserts that there can be no search without a reasonable expectation of privacy. The third says that is a search even if there is a reasonable expectation of privacy. I take it that Justice Scalia means that one need not fuss with reasonable-expectation test when there is a traditional trespass to gather information. This was the position that the Justice articulated for a majority of the Court in United States v. Jones, 132 S.Ct. 945 (2012).

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

Balancing versus Categorizing in Maryland v. King

The arrestee DNA case of Maryland v. King offers the Supreme Court the opportunity to address a fundamental issue of Fourth Amendment jurisprudence. The Amendment prohibits “unreasonable searches and seizures.” According to the briefs of Maryland and the United States, the established mode of ascertaining reasonableness is an ad hoc “totality of the circumstances” balancing of interests. The major individual interests would seem to be in keeping information about one’s identity and presence at certain locations private, and the dominant government interests are in investigating and solving cases.

These briefs rely on cases that balanced state and individual interests related to searches in limited circumstances–to create or mark the bounds of new, categorical exceptions, or to subject probationers and parolees to searches without a warrant or any well-defined categorical exception to the warrant requirement. Like most lower court cases on arrestee DNA sampling, the briefs do not explain why balancing should apply to DNA testing before conviction. Rather, they seem to assume that the reasonableness of searches flow from an immediate balancing of interests.

The competing, and more traditional view, presented in Alonzo King’s brief, is that it takes a categorical exception to permit a search without a valid judicial warrant. This brief argues that DNA sampling does not fall under an established exception to the general requirement of a search warrant and that ad hoc balancing is not the norm in determining the reasonableness of a search.

A critical case in this regard is Samson v. California, 547 U.S. 843 (2006). There, the Court held that parolees had no protection from warrantless searches to uncover evidence of crimes. It did so without purporting to create a new exception to this requirement. Moreover, it is hard to discern a satisfactory basis for such an exception. All the previous exceptions rest on the presence of a government interest above and beyond the discovery of evidence that would be useful in a criminal case against the target of the search (such as the government’s role as an employer in maintaining a drug-free workforce), an unusually pressing need to dispense with a warrant (as in a limited investigatory stop to acquire information about what appears to be an imminent or ongoing crime), or government conduct that is a milder invasion of personal liberty or privacy than a canonical search or seizure of the person (such as a limited pat down of the individual’s outer clothing). Writing for the Samson Court, however, Justice Thomas reasoned that because parole is “an established variation on imprisonment” with an express condition that the parolee is subject to warrantless searches, “petitioner did not have an expectation of privacy that society would recognize as legitimate.” Id. at 852. Such language normally means that government conduct does not rise to the level of a search. If Samson had no reasonable expectation of privacy, then there was no search under Katz v. United States, 389 U.S. 347 (1967), and hence no need to create an exception to the rule that a search is presumptively unreasonable without a warrant  Thus, at least one prominent commentator (Kerr 2012, p. 318) reads Samson as eliminating the per se rule rather than creating a new exception. I tend to think that the Court is simply vacillating, with no guiding principles, between the two theories of reasonableness–the one that starts with warrants and the more open textured one advanced by Maryland and the federal government.

There is a rich literature on these two theories, but one would not know this from perusing the briefs. Certainly, some Justices have questioned the preference for warrants for years. The King case could test whether their doubts have spread to a majority of the Court, leading to a more flexible but less predictable framework for applying the Fourth Amendment across the board.


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

The Arizona Supreme Court Adopts a No-Peeking Rule for Juvenile Arrestee DNA

Preface: This posting (of June 29) replaces one from June 28. Part of that initial discussion of the Arizona Supreme Court’s opinion was, I think, unwarranted. In particular the criticism of the court’s treatment of the state interests may not have been accurate. Complex opinions, like good literature, rarely can be fully grasped on a first reading.

* * * A few days ago, the Supreme Court of Arizona promulgated a creative “don’t peek” rule for DNA samples routinely taken from juveniles before a finding of delinquency. Justice Andrew Hurwitz (who has just moved to the U.S. Court of Appeals for the Ninth Circuit) penned the unanimous opinion in Mario W. v. Kaipio, Commissioner, No. CV-11-0344-PR (Ariz. June 27, 2012). The opinion injects some new ideas and analysis into the legal controversy over arrestee DNA sampling, but I have to question whether the reasoning is sufficient to support the result the court reaches and to ask how far the court’s theory of Fourth Amendment privacy extends.

At the outset, the Arizona court quite properly sets out the normal rule that Fourth Amendment reasonableness requires a warrant and probable cause unless a categorical exception to these requirements exists. But then the court states that “[t]he parties do not dispute the applicability of the totality of the circumstances test, and we therefore analyze the Arizona scheme under that rubric.” This is hardly a ringing endorsement of this mode of analysis, but it is the way most courts approach the issue [1].

Getting to the specifics of DNA sampling on arrest, the court observes that there are “two separate intrusions” and “two searches — ‘the physical collection of the DNA sample’ and the ‘processing of the DNA sample.'” The former observation is basically correct. “The seizure of buccal cells is a physical intrusion, but does not reveal by itself intimate personal information about the individual.”1/

But the laboratory analysis probably is not a “later search.” The U.S. Supreme Court, at any rate, has yet to hold that physical testing or inspection is a separate search simply because it produces information about the substance being analyzed. Indeed, the Court, in two opinions–United States v. Edwards, 415 U.S. 800 (1974), and United States v. Jacobsen, 466 U.S. 109 (1984)–has held the opposite.

The Arizona court relies on an analogy to containers. It maintains that human cells are like steamer trunks or purses that contain private possessions. The police engage in a search when they open such a container and rummage through its contents.

The analogy looks good at first blush. People surely have reasonable expectations of privacy in the contents of their luggage and their purses. The Orthodox Jew on Yom Kippur with an apple core in her purse, the Catholic juvenile with birth control pills in hers, and the English literature professor with sleazy novels in his trunk all have a fair claim to freedom from unregulated intrusions into their purses or luggage. The police will all but inevitably espy these legal but embarrassing items if they look through the container without a warrant.

But compare this with the laboratory analysis of the epithelial cells. The laboratory extracts a single kind of molecule–DNA. It does not look at the rest of the cell. Within the DNA, it looks at a tiny fraction of the genome–locations (“loci”) that are not potentially embarrassing (except insofar as they match crime-scene samples).1/ The situation begins to resemble cases in which dogs that (supposedly) alert only to drugs are used to sniff luggage–and that, the Court has twice held, is not a search.2/

Because the government does not look through the parts of genome in which an individual has a strong expectation of privacy, a better analogy is required. Imagine, then, that every time a person commits a crime, a mysterious being delivers an envelope to the police that always contains only two things–a card with the name of an individual who was at the scene of the crime (but not necessarily at the time the crime occurred) and a key to a safe deposit box in that person’s name. Is opening the envelope a “search” that triggers the need for a warrant or an exception to the warrant requirement? Maybe, but the cases and the doctrine cited in Mario W. are insufficient to establish this result. All that the container cases establish is that the police must abide by the constitutional requirements for searches before and when they use the key to open the safe deposit box. The box, of course, is the vast part of the human genome that the police do not open in DNA testing for identity. In DNA profiling for law enforcement databases, they only read the name on the card.3/

Yet, whether one denominates the laboratory analysis as a separate search is not decisive. It might be a constitutionally permissible, warrantless, probable-causeless search, at least under the totality-of-the-circumstances balancing test. The Arizona justices reject this conclusion in favor of the following rule: (1) the state’s “important interest in locating an absconding juvenile and, perhaps years after charges were filed, ascertaining that the person located is the one previously charged” justifies collecting the sample–“even if a formal judicial determination of probable cause was not made at the advisory hearing.” However, (2) no combination of state interests justifies the warrantless laboratory analysis of the DNA sample (a) to determine whether it matches unsolved crime samples or (b) to have a profile in a database that will identify the juvenile as the contributor of DNA found in future crimes.

But why is taking DNA solely for “locating an absconding juvenile” so critical when the state already takes fingerprints that can be used this purpose? Doesn’t the fingerprint on file eliminate the need to house the DNA as well, as the Maryland Court of Appeals recently reasoned in King v. State, 42 A.3d 549 (Md. 2012)?

The Arizona court’s answer is that “[o]ne arrested for a serious crime may be fingerprinted before a judicial determination of probable cause. … A judicial order to provide a buccal cell sample occasions no constitutionally distinguishable intrusion.” This suggests that the state can choose either fingerprints or DNA as the source of identifying marks. However, if a DNA profile is “intimate personal information about the individual” merely because it constitutes “uniquely identifying information”–which is all that Mario W. says about informational privacy–then fingerprints are equally “intimate personal information.” They too provide “uniquely identifying information.” Indeed, they are better for this purpose, for they permit differentiation of identical twins.

So does Mario W. prohibit the state from examining the minutiae in fingerprints unless or until arrestees are convicted (the no-peeking rule)? From running an arrestee’s print against a database of prints from unsolved crimes? From adding the fingerprint to the national Automated Fingerprint Identification System database (AFIS) before that point? Of course, DNA loci might be significantly more threatening to privacy than fingerprint details, but that conclusion is far from obvious [1].

In analyzing the state’s interests in pre-conviction DNA analysis, the opinion correctly notes that the value in solving unrelated crimes (and in deterring future ones) is reduced considerably by two features of the Arizona law. As with all pre-conviction profiling and databasing, many of the arrestees would have their samples analyzed and included in the state database after they are convicted anyway. As for the ones who are not convicted, the Arizona law does not permit continued use of the profiles. Thus, the opinion notes, with current technology and staffing, the government has the benefit of the profiles for only a month or so (for those who not adjudicated delinquent) and for only an extra month or so for the others.

These points help explain the court’s balancing, but how enduring are they? Advances in technology, making it possible to analyze profiles in a matter of hours, easily could extend the period of pre-conviction use. In addition, what would happen if the law did not require the samples to be removed from the database in the event that the state does not prove delinquency? Obviously, that would advance the state’s law enforcement interests (although it might not be politically popular). The sad fact is that lots of people who are arrested but never convicted commit later crimes. If DNA is to be believed, California’s “Grim Sleeper” killer is one. Lives would have been saved had his profile been acquired at his first of sixteen arrests and kept in a state database. Of course, the mere fact that law enforcement could gain by keeping tabs on more people does not make all such practices constitutional. Still, it adds something to the state’s interests that is missing in the Arizona system of juvenile arrestee DNA databasing and that would have to be considered in totality balancing for the more extended system.

Interestingly, the Mario W. court intimates that expungement is mandatory “given the constitutional presumption of innocence” and the fact that those accused of crimes “do not forfeit Fourth Amendment protections.” This part of the opinion raises several puzzles. Given the history and cases on the presumption of innocence, it is an expansive reading of the presumption [2]. Moreover, if the presumption does mean that the state may not include DNA profiles of those arrested but not ultimately convicted in databases, what of fingerprints, which are retained indefinitely? As noted earlier, the court’s theory as to why DNA profiling invades informational privacy seems to apply with equal force to AFIS databases. That people do not forfeit Fourth Amendment rights just because they are accused of crimes–or, for that matter, convicted of them–is important, but it does not imply that the Fourth Amendment is an absolute barrier to suspicionless profiling and databasing. The opinion asserts that

[O]ne accused of a crime, although having diminished expectations of privacy in some respects, does not forfeit Fourth Amendment protections with respect to other offenses not charged absent either probable cause or reasonable suspicion. An arrest for vehicular homicide, for example, cannot alone justify a warrantless search of an arrestee’s financial records to see if he is also an embezzler.

As with the purse and the trunk, the financial records of the arrestee merit strong Fourth Amendment protection (unless, according the U.S. Supreme Court, they are held by a bank or other third party). But what is it about the DNA loci that merits similar protection? The state’s claim is not that an arrest justifies every unrelated search. It is (or should be) that the custodial arrest justifies using identifying marks–whether they are within fingerprint impressions or DNA molecules–for identification of the person and then for speculative searching against the marks left at past and future unsolved crimes.

To be sure, a sensitive balancing of individual and public interests might lead to the conclusion that the latter goes too far. But the assumption in Mario W. seems to be that tokens of an individual’s identity are inherently “intimate personal information” that impose a “serious intrusion on … privacy interests.” Without a clearer and more convincing analysis of the actual privacy interests associated with the many things that mark us as individuals–DNA profiles, fingerprints, iris scans, even photographs–Mario W. raises more questions than it answers.


1. One can quibble with the term “seizure,” for the extraction of the cells in the inner surface of the cheek does not seem to be a seizure in the Fourth Amendment sense. Unlike keeping a person away from his home or luggage or stopping him, it is not a substantial interference with the individual’s use of his possessions or his person. It is, however, probably a search under Cupp v. Murphy, 412 U.S. 291 (1973) (physical intrusion under fingernail), Schmerber v. California, 384 U.S. 757 (1966) (physical intrusion with syringe), or United States v. Jones, No. 10-1259 (U.S. Jan. 23, 2012) (the GPS tracking case that applied a trespass-with-intent-to-acquire-information test for ascertaining a “search”).

2. But Caballes and Place also are distinguishable in that DNA loci are not contraband.)

3. How much, if any, other information the card contains is an interesting question.

4. I am oversimplifying. When profiles from putative close relatives are available, the loci can be used for kinship testing. For example, if the state has the profiles of a mother-father-child trio, it could determine whether they are in the specified biological relationship or whether, for example, someone else is the biological father. The reader is invited to make his own comparison between the strength of the privacy interest in the contents of all manner of containers of personal effects and records on the one hand, and the STR loci used for identification, on the other.


1. David H. Kaye, A Fourth Amendment Theory for Arrestee DNA and Other Biometric Databases, 15 U. Pa. J. Const. L. No. 4 (forthcoming Apr. 2013).

2. David H. Kaye, Drawing Lines: Unrelated Probable Cause as a Prerequisite to Early DNA Collection, 91 N. C. L. Rev. Addendum No. 1 (forthcoming Oct. 2012)

Postscript: Rereading the Mario W. opinion yet again, the following paragraph struck me:

�26 The State argues that once it has lawfully obtained the cell samples, the Fourth Amendment provides no greater bar to the processing of those samples and the extraction of the DNA profile than it does to the analysis of fingerprints. But the State’s reliance on the fingerprinting analogy here is misplaced. Once fingerprints are obtained, no further intrusion on the privacy of the individual is required before they can be used for investigative purposes. In this sense, the fingerprint is akin to a photograph or voice exemplar. But before DNA samples can be used by law enforcement, they must be physically processed and a DNA profile extracted. See Erin Murphy, The New Forensics: Criminal Justice, False Certainty, and the Second Generation of Scientific Evidence, 95 Cal. L. Rev. 721, 726-30 (2007).”

This is a distinction without a difference. First, in both fingerprinting and DNA analysis, a sample (an exemplar) must be collected from an arrestee. Elsewhere, the opinion describes the intrusion on the individual in this step with unusual clarity. Second, with both fingerprinting and DNA profiling, the physical sample must be examined “before [the] samples can be used by law enforcement.”

The fingerprint information lies in minutiae that must be studied by eye or by computer to extract useful data. The DNA information lies in particular loci that must be characterized by chemical reactions and computers to extract useful data. What matters is not the physics or the chemistry, but the transformation into identifying information. If extracting this information is a separate search for DNA, then extracting the identifying information also is a separate search for fingerprints. If this “second search” requires a warrant for DNA, it requires it for fingerprints.

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

Rhode Island arrests man following a partial match

A Rhode Island newspaper reports that “[t]he Cranston Police Department has arrested 49-year-old David Finegan, of no permanent address, for the burglary and sexual assault of an 81-year-old woman.” [1] Police “collected [DNA] at the crime scene on May 2.” On June 10, the Rhode Island Department of Health reported that it had a DNA profile from the crime with which to query an offender database. The Rhode Island laboratory did not use software designed for kinship searching, but on July 8, the department advised detectives that it had found a partial DNA match to a female inmate.

The article does not speculate on why it took a month to complete a routine computer search and report the results.Was it because of legal concerns? Was the partial match trawl intentional, or was the discovery inadvertent? Whichever it was, the detectives turned their attention to five male siblings. They discovered that one of them, David Finegan, was “in close proximity . . . on the night of the incident.”

Why this roundabout method of identifying Finegan? He was on parole in July. Was the underlying offense not one that triggered entry into the DNA database? Was there a backlog in entering offender profiles into the database? Whatever the explanation, Finegan had the misfortune of being picked up on July 14 on a parole violation and held for the weekend. Detectives quickly obtained a search warrant and took a sample of DNA from him before he made bail and dropped out of sight. A week later, they learned that it matched the crime-scene DNA.

Pursuing an anonymous tip, police found and arrested Finegan in Providence. He “is being charged with burglary and first-degree sexual assault.” Interestingly, he has an arrest record (including domestic assault, felony DWI, resisting arrest and other assaults) dating back to 1991. A bill that would expand the state database to include arrestees is before House and Senate committees in Rhode Island.


1. Joe Kernan, Arrest Made in Rape of Elderly Woman, Cranston Herald, Dec. 19, 2011


Thanks to Frederick Bieber for informing me of the Cranston Herald article.