Tag Archives: balancing

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

DNA Database Trawls and the Definition of a Search in Boroian v. Mueller

In August 2010, the U.S. Court of Appeals for the First Circuit disposed of an argument about the constitutionality of DNA databases that it previously had consciously and conspicuously avoided a few years earlier. In Boroian v. Mueller, 616 F.3d 60 (1st Cir. 2010), this court finally held that the government can keep a convicted offender’s DNA profile in a law enforcement database even after he has paid his metaphorical debt to society.

This outcome is hardly surprising. Long-lasting, collateral consequences of convictions have become commonplace (Pinard 2010), and continuing to trawl for matches to unsolved crimes after a convicted offender is no longer subject to confinement or supervision adds significantly to the power of DNA databases. Nevertheless, the reasoning that the court used to reach this result has come under attack in recent writing, and the court itself tried to reign in the implications of the rationale it employed.

The Case and the Prior First Circuit Law

Martin Boroian was convicted in 2004 of making a false statement to a federal official. For this crime, he spent a year on probation. During this year, he provided (under protest) a blood sample as required by a federal law mandating the inclusion of DNA profiles in the FBI’s national DNA database. In 2008, Boroian sought to have his DNA profile expunged and his DNA sample destroyed. His complaint, filed in federal district court, alleged that the retention and analysis of his DNA profile and sample–after completion of his probation term and without reasonable suspicion of any new criminal activity–violated the Fourth Amendment’s prohibition on unreasonable searches and seizures.

The district court dismissed the complaint. The court decided that even if the facts listed in the complaint all were true, the government was acting constitutionally. First, the court concluded that the government’s retention and periodic accessing of his lawfully obtained DNA profile was not a new search within the meaning of the Fourth Amendment. Second, the court held that although a new analysis of the DNA sample could constitute a separate search under the Fourth Amendment, Boroian’s complaint contained no allegations of a present or imminent analysis of the sample. In short, the district court determined that the government can hold on to the physical evidence Boroian was required to provide as long as it wanted to, and it could use the information it had extracted from the evidence–Boroian’s DNA identification profile–over and over, in checking profiles from new crime-scene DNA samples against Boroian’s (and those of the millions of convicted offenders with profiles in the national database).

The latter proposition seems difficult to deny. On appeal, Boroian did not–and realistically, could not–argue that the law requiring him to provide the sample for the database was unconstitutional. Like every other appellate court to the address this question, the First Circuit has held that the compulsory collection of DNA samples from convicted offenders for computer searchable DNA databases is a reasonable search and seizure. In United States v. Weikert, 504 F.3d 1, 14 (1st Cir. 2007), the First Circuit wrote that:

After careful consideration, we conclude that the government’s important interests in monitoring and rehabilitating supervised releasees, solving crimes, and exonerating innocent individuals outweigh Weikert’s privacy interests, given his status as a supervised releasee, the relatively minimal inconvenience occasioned by a blood draw, and the coding of genetic information that, by statute, may be used only for purposes of identification.

Because the court’s balancing relied heavily on the value of the DNA database in producing “cold hits” to solve crimes, Weikert surely upheld, as constitutionally reasonable, not merely the compelled collection of DNA from offenders while on probation or release, but also the analysis of the samples to extract the numerical DNA profiles, the recording of these profiles in the national database, and the trawls of this database of the DNA profiles extracted from these samples. These trawls, after all, are the raison d’etre of a computer-searchable database.

The only colorable argument against continuing to trawl the database with Boroian’s profile in it was that the balance of interests had shifted in his favor after he had served his sentence. Indeed, the Weikert court had left this question wide open, writing that it was

withholding judgment on whether retaining a former conditional releasee’s DNA profile in CODIS passes constitutional muster. The distinction in status between a current and a former offender clearly translates to a change in the privacy interests at stake. A former conditional releasee’s increased expectation of privacy warrants a separate balancing of that privacy interest against the government’s interest in retaining his profile in CODIS.

504 F.3d at 16.

Boroian’s Reasoning

The court in Boroian, however, refused to undertake this “separate balancing.” Rather than weigh the two sets of interests to decide whether an offender could be forced to surrender his DNA for database trawls after the completion of the sentence, the court now reasoned that the trawls coming at this later stage were not even “searches” within the meaning of the Fourth Amendment. Analogizing DNA identification profiles to “fingerprints or mugshots [that] are routinely retained by the government after . . . sentences are complete,” 616 F.3d at 67, the First Circuit wrote that “we join the other courts to have addressed the issue in holding that the government’s retention and matching of Boroian’s profile against other profiles in CODIS does not violate an expectation of privacy that society is prepared to recognize as reasonable, and thus does not constitute a separate search under the Fourth Amendment.” Id. at 67-68 (footnote omitted). In this way, Boroian repudiated Weikert‘s “dicta that the government’s retention and periodic matching of a lawfully obtained profile after the offender had completed his term of supervised release would require a rebalancing of the relevant government and privacy interests to determine the reasonableness of the search.” Id. at 68 n.6.

In general, rejecting the suggestion that every trawl of information in a database is a separate search that requires independent justification is sensible. Once the government lawfully acquires the information, the marginal invasion of privacy that comes from using it later is minimal. Consequently, the government should not be forced to use the data once, then forget it. Suppose that in executing a valid warrant permitting the seizure of a stolen personal computer with serial number C2011A from a warehouse, government agents observe and record the serial numbers C2013A and C2013C on other computers. A week later, they receive a report of a theft of the PC with serial number C2013A. The warrant did not authorize the agents to compare the numbers a week later, but one of them remembers the number (or looks up the record of the first search), thus linking the owner of the warehouse to the second crime. What meritorious privacy interest can the owner assert to stop the government from checking for a match in the serial numbers? Treating the simple trawl of the stored information as not subject to the strictures of the Fourth Amendment–because it is not a “search”–seems appropriate.

Yet, this mode of analysis creates a puzzle. By invoking a broad no-search doctrine, Boroian avoids even asking the fundamental, prior question of whether the government’s interests justify a system that trawls for DNA matches not only during the sentencing period but indefinitely thereafter. The opinion seems to say that as long as it is clear that the acquisition and use of the offender’s DNA profile for a limited time is permissible, trawls for all time also are permissible.

A recent law review article takes issue with the generally accepted view that “[l]awful collection simply ends the analysis: anything further is fair play.” (Murphy 2010, 1334). But the free reuse of legitimately acquired information is deeply entrenched in established Fourth Amendment doctrine. It follows from the nature of the interests the Fourth Amendment protects. For example, an individual whose DNA profile is in the database–a database inhabitant, so to speak–might well be concerned that later trawls will harm him by exposing him as the perpetrator of an unsolved crime. A later trawl that had this outcome certainly would harm the database inhabitant, but it would not infringe a legitimate interest, let alone an interest that the Fourth Amendment respects. Under “conventional doctrine,” id., the Fourth Amendment does not protect information. It only protects individuals against oppressive methods of acquiring that information. One can decry this “this singular attention on acquisition,” id., but trying to undo it through the Fourth Amendment would be a major task. It harkens back to the days of Boyd v. United States, 116 U.S. 616 (1886), in which the Supreme Court held that a court order for the production at trial of certain papers was a search and seizure, not because of the manner in which the government was acquiring the information, but because of the information itself.


Boroian v. Mueller, 616 F.3d 60 (1st Cir. 2010).

Boyd v. United States, 116 U.S. 616 (1886),

Erin Murphy, Relative Doubt: Familial Searches of DNA Databases, 109 Mich. L. Rev. 291, 3334 (2010).

Michael Pinard, Collateral Consequences of Criminal Convictions: Confronting Issues of Race and Dignity, 85 NYU L. Rev. 457 (2010).

United States v. Weikert, 504 F.3d 1, 14 (1st Cir. 2007).