There are lots of criticisms that one can make of the majority opinion in Maryland v. King — and even more that apply to the dissent — but, contrary to one commentator, I do not think that the Court’s reference to the use of anthropometrics as employed in the late 1800s and early 1900s for authenticating the identities of prisoners is particularly problematic. … Find more at http://for-sci-law-now.blogspot.com/2013/06/maryland-v-king-no-3-bertillonage-as.html.
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.
- For the same-day transcript, see http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-207.pdf.
- 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.
According to the SCOTUS blog,
Chief Justice John G. Roberts, Jr., calling tests of the DNA of individuals arrested by police ‘a valuable tool for investigating unsolved crimes,’ on Monday cleared the way for the state of Maryland to continue that practice until the Supreme Court can act on a challenge to its constitutionality. The Chief Justice’s four-page opinion is here. A Maryland state court ruling against the practice will remain on hold until the Justices take final action.
One should not read these words as stating that the stay is in effect until the Justices decide whether Maryland constitutionally can take DNA from mere arrestees. That would require two further actions by the Court–“granting cert” and extending the stay while the Court decides the case–both unusual events. The Court receives over 8,000 petitions per year asking it to issue writs of certiorari–orders for lower courts to send the record to the Supreme Court for its review. The court grants on the order of 100 of them. It takes only four votes to grant a petition. (It used to require five.) Justice Scalia once called wading through piles of petitions and supporting materials “the most … onerous and … uninteresting part of the job.” 
Thus far, the Chief Justice has issued a order (on his authority as a Circuit Justice) temporarily blocking (“staying”) the judgment of the Maryland Court of Appeals. The Court of Appeals judgment did not order the state to do anything (although its import hardly could be ignored). It reversed the decision of the state’s intermediate appellate court (that had upheld the constitutionality of Maryland’s DNA-on-arrest law) and remanded the case to that lower court for further proceedings. (I described some notable features of the original Maryland Court of Appeals opinion on April 26. )
The Chief Justice’s order remains in effect only until the other Justices of the Supreme Court get around to voting on Maryland’s petition for a writ of certiorarari. At that point, one of three things will happen: either (1) the Justices will grant the petition and decide to continue the freeze on the Maryland judgment while the Court reviews the case; (2) the Justices will grant the petition and let the stay elapse while they hear the case; or (3) they will deny the petition and leave the judgment of Maryland’s highest court undisturbed. 
Thus, the Court’s “final action” might be merely to decide not to act on the merits of the challenge to the constitutionality of the Maryland law. Denying cert has no precedential value. But the Chief Justice’s July 30 opinion predicts that the Court actually will review the case and issue an opinion that will uphold the constitutionality of the law. Because of the contentiousness of the constitutional question, the brief opinion is worth dissecting
The Chief Justice begins with the observation that “there is a reasonable probability this Court will grant certiorari.” He ought to know, but the reason he gives is not entirely convincing. He writes that:
Maryland’s decision conflicts with decisions of the U. S. Courts of Appeals for the Third and Ninth Circuits as well as the Virginia Supreme Court, which have upheld statutes similar to Maryland’s DNA Collection Act. … The split implicates an important feature of day-to-day law enforcement practice in approximately half the States and the Federal Government. … Indeed, the decision below has direct effects beyond Maryland: Because the DNA samples Maryland collects may otherwise be eligible for the FBI’s national DNA database, the decision renders the database less effective for other States and the Federal Government.
But this “split” is not like a split in the federal circuits on the constitutionality of the federal database law. That kind of split would throw a real monkey wrench into the operation of NDIS, the FBI’s National DNA Index System. The split here only affects timing and a fraction of all DNA profiles. That is, for those individuals who are convicted anyway, not taking DNA on arrest in Maryland only delays the time at which their profiles go into the database. Once the offender profiles are entered, a weekly database trawl should link them to any profiles in the database of crime-scene samples. Of course, this delay is not without costs. For example, some arrestees will commit other crimes, up to and including murder, in the period between arrest and conviction.
With respect to arrestees who never are convicted of offenses that trigger inclusion in the database, the state loses the opportunity to trawl the crime-scene database for their DNA profiles. Some of these individuals might be connected to these unsolved crimes, but many will not be. Thus, the split does not shut down the database system. It does reduce its efficiency by an amount that is not clearly known. As the Chief Justice puts it, “the decision renders the database less effective.”
Chief Justice Roberts also writes that “the decision below subjects Maryland to ongoing irreparable harm” because “[A]ny time a State is enjoined by a court from effectuating statutes enacted by representatives of its people, it suffers a form of irreparable injury.” The latter quotation comes from the previous Chief Justice, who expressed this claim in New Motor Vehicle Bd. of Cal. v. Orrin W. Fox Co., 434 U. S. 1345, 1351 (1977) (REHNQUIST, J., in chambers). But the notion that every court order that blocks enforcement of a duly enacted law in a state works an irreparable injury seems extravagant. Does the public suffer irreparable harm when someone on a Fort Lauderdale beach plays frisbee, flies a kite, attaches a hammock to a tree, or swims in long pants–all prohibited?
The more meaningful argument is that the Maryland ruling constitutes “an ongoing and concrete harm to Maryland’s law enforcement and public safety interests.” The Chief Justice explains: “According to Maryland, from 2009–the year Maryland began collecting samples from arrestees–to 2011, ‘matches from arrestee swabs [from Maryland] have resulted in 58 criminal prosecutions.'” But this statistic is wide of the mark. How many of these 58 prosecutions would the state have foregone had it been unable to enter the profiles at the point of the arrest rather than waiting until a conviction ensured?
The Chief Justice is correct in stating that “in the absence of a stay, Maryland would be disabled from employing a valuable law enforcement tool for several months,” but his opinion leaves unresolved the question of just how valuable it really is. This is a matter that surely will receive more attention if and when the full Court actually hears the case.
1. CSPAN, Justices in Their Own Words: Granting Certiorari, http://supremecourt.c-span.org/Video/JusticeOwnWords.aspx
2. David H. Kaye, Maryland’s Highest Court’s Opinion on Arrestee DNA Is an Outlier, Forensic Science, Statistics, and the Law, Apr. 26, 2012, http://for-sci-law-now.blogspot.com/2012/04/foot-in-mouth-disease-in-maryland.html
3. H. Greely, The Supreme Court and Mandatory Collection of DNA from Arrestees — Stay Tuned!, http://blogs.law.stanford.edu/lawandbiosciences/2012/07/22/the-action-inaction-distinction-before-nfib-v-sebelius/
Cross-posted to the Forensic Science, Statistics, and the Law Blog.
Last month, I noted the findings of a superior court in Vermont 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 . The judge based her conclusion in State v. Abernathy  that the CODIS loci now permit “probabilistic predictions of disease” on the unpublished views of biologist Greg Wray, who oversees the Center for Evolutionary Genomics and the DNA Sequencing Core Facility, within Duke University’s Institute for Genome Sciences and Policy.
A technical report accepted for publication in the Journal of Forensic Sciences seems to dispute these claims. Sara Katsanis, a staff researcher at Duke’s same Institute for Genome Sciences and Policy, and Jennifer Wagner, a postdoc at the University of Pennsylvania’s Center for the Integration of Genetic Healthcare Technologies, searched the biomedical literature and genomic databases not only for associations with phenotypes in the current 13 loci used in offender databases, but also in ones that soon may be added to the system. They came up with “no evidence” that any particular CODIS single-locus STR genotypes “are indicative of phenotype.”
1. CODIS Loci Ready for Disease Prediction, Vermont Court Says, June 15, 2012.
2. State v. Abernathy, No. 3599-9-11 (Vt. Super. Ct. June 1, 2012).
Cross-posted to Forensic Science, Statistics, and Law Blog
About a year ago, I asked whether any false convictions have resulted from DNA database searches.  Of course, if there are any, they might be hard to find, but there is a known recent case of a false initial accusation. It came about because a laboratory contaminated a crime-scene sample with DNA from an whose DNA was on file from other cases.
In March 2012, a private firm in England re-used a “plastic tray as part of the robotic DNA extraction process.”  The tray, which should have been disposed of, apparently contained some DNA from Adam Scott, a young man from Exeter, in Devon.  This DNA contaminated the sample from the clothing of a woman who had been raped in a park in Manchester. Police charged Scott, who claimed he had never been to Manchester, with the rape. After detectives realized that Scott “was in prison 300 miles away, awaiting trial on other unrelated offences” at the time of the rape, the charges were dropped.  An audit and investigation of 26,000 other samples analyzed after the robotic system had been introduced, uncovered no other instances of contamination. Steps intended to prevent a repetition of the error have been implemented. 
Other errors in handling samples have been documented. In a 2001 Las Vegas case, police obtained DNA samples from two young suspects, Dwayne Jackson and his cousin, Howard Grissom. A technician put Jackson’s sample in a vial marked as Grissom’s, and vice versa. A falsely accused Jackson then pleaded guilty and was imprisoned for four years. The error came to light in 2010, after Grissom was convicted of robbing and stabbing a woman in Southern California. California officials took Grissom’s DNA and entered the profile into the national database, leading to a match to the crime-scene DNA from the 2001 burglary for which Jackson had been falsely convicted. 
Of course, this is not a case of a DNA database hit producing a conviction or even a false accusation. Quite the contrary, it is a case of a DNA database producing an exoneration that would not have occurred otherwise. But both cases vividly illustrate the need to implement quality control systems that reduce the chance of handling and other error and to avoid over-reliance on cold hits.
Addendum of July 10, 2012: If anyone has trouble posting comments, please email me. Jeremy Gans ran into problems trying to post an excellent and informative comment that I am posting on his behalf.
1. David H. Kaye, Genetic Justice: Potential and Real, The Double Helix Law Blog, June 5, 2011.
2. BBC News, DNA Blunder: Man Accused of Rape After Human Error, Mar. 21, 2012.
3. Simon Israel, DNA Contamination Blamed on Human Error, Channel 4 News, May 9, 2012,.
4. Lawrence Mower & Doug McMurdo, Las Vegas Police Reveal DNA Error Put Wrong Man in Prison, Las Vegas Rev..-J., July 8, 2011.
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 .
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 .
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 . 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
Should a state be permitted to convict a rapist who is caught because his DNA is placed in a database in violation of the state’s DNA databank statute? In People v. Robinson, 224 P.3d 55 (Cal. 2010), the California Supreme Court upheld the sexual assault convictions of a man whose DNA was taken by correctional officials who mistakenly thought that the state’s DNA database statute applied to the misdemeanor for which he was convicted. This search thus violated the state law but not the U.S. Constitution, which permits DNA sampling from those convicted of some (if not all) misdemeanor offenses. Because the state database law did not prescribe the exclusion of evidence at trial as a remedy, the California court could have upheld the convictions without discussing the scope of the Fourth Amendment exclusionary rule.
Yet, the Robinson court described a second ground for its action — the “good faith” exception to the Fourth Amendment exclusionary rule announced in United States v. Leon, 468 U.S. 897 (1984). The facts of Leon were compelling. Why exclude reliable physical evidence from trial when it was not the constable who blundered, but “a detached and neutral magistrate” who misjudged whether probable cause was present and issued a search warrant? Later cases applied the exception for “good faith” mistakes to other forms of police reliance on facts or other information supplied by officials. Just this month, in United States v. Davis, No. 09-11328 (U.S. June 16, 2011), the Court refused to apply the exclusionary rule to a search that conformed to circuit court precedent at the time, even though the Supreme Court devised a different rule two years later. More to the point, in Herring v. United States, 555 U. S. 135 (2009), a police officer, pursuing a grudge against a suspect, arrested and searched him and his truck on the basis of a false and negligent report from a clerk in another county of an outstanding arrest warrant. The Court held that this “attenuated negligence” did not warrant the application of the exclusionary rule.
In an essay published last month, I argue that the Robinson court exceeded the boundaries of the good-faith exception by applying it to a nonattenuated negligent mistake. The essay, “Unraveling the Exclusionary Rule: From Leon to Herring to Robinson–And Back?,” 58 UCLA L. Rev. Disc. 207 (2011), is at http://uclalawreview.org/?p=1719.
The majority leader of the Pennsylvania Senate, Dominic Pileggi, just introduced a bill to make major changes in the state’s law enforcement DNA database system. The most significant change is the requirement that individuals who are merely arrested for certain crimes must provide a DNA sample for inclusion in the state database. About half the states now have such laws, although (as noted an earlier posting to this blog) their constitutionality is the subject of continuing litigation. This bill is relatively moderate in its approach to arrestee sampling. There must be a judicial finding of probable cause (or a waiver of the preliminary hearing). The DNA profiles must be removed from the database if there is no conviction. The samples may not be used for kinship searching (a topic of previous postings).
The bill requires the state police to develop and implement procedures for kinship searching. Maryland and the District of Columbia prohibit kinship searching, and California, Colorado, New York, Texas, and Virginia conduct such searches in the absence of explicit statutory authority. Currently there is confusion in Pennsylvania over whether disclosure of near matches to local officials is permissible. The state police contend that “Although familial searching has the potential to be a great investigative tool, implementation at this early stage, without direct legislative approval and a standard national policy, is premature.” Flam (2011). Obviously, the notion that in a federation of states, no state should act before “a standard national policy exists” is somewhat strange. Mimicking the policy adopted by executive action in California, the bill restricts kinship searches to cases in which other investigative methods have failed. Unlike the California policy, however, the bill imposes no artificial floor on the number of autosomal alleles that must match. Instead, it requires administrative rule-making to arrive at more “scientifically valid and reliable” procedures.
A unique provision in the bill states that “No DNA sample or DNA record shall be used for human behavioral genetic research.” This prohibition is superfluous. See Kaye (2006). The bill states that “the tests to be performed on each DNA sample shall be used only for law enforcement identification purposes or to assist in the recovery or identification of human remains from disasters or for other humanitarian identification purposes, including identification of missing persons,” and it defines “Law enforcement identification purposes” as “Assisting in the determination of the identity of an individual whose DNA is contained in a biological sample.” Human behavioral genetic research is not an “identification purpose.”
Whether the state can afford an expansion in the databank is unclear. In the absence of adequate data on the effectiveness of DNA sampling on arrest, a cost-benefit analysis of the proposal is all but impossible. Over ten years ago, the National Commission on the Future of DNA Evidence avoided taking a stand on arrestee sampling on that ground that with large backlogs of crime-scene and offender samples awaiting analysis, adding arrestee samples was premature. The Commission suggested that the issue be readdressed in 2005.
Faye Flam, Colorado D.A. Offers Philadelphia Help in Kensington Strangler Case, Philadelphia Inquirer, Jan. 10, 2011.
David H. Kaye, Behavioral Genetics Research and Criminal DNA Databanks, 69 Law and Contemporary Problems, 259 (2006), reprinted in revised form as Behavioral Genetics Research and Criminal DNA Databases: Laws and Policies, in The Impact of Behavioral Science in Criminal Law 355-387 (N. Faranhy ed., New York: Oxford Univ. Press, 2009).
In United States v. Leon, 468 U.S. 897 (1984), the Supreme Court adopted a narrow, “good-faith exception to the Fourth Amendment exclusionary rule” for “reliable physical evidence seized by officers reasonably relying on a warrant issued by a detached and neutral magistrate.” Later cases have applied this exception to a police officer’s “reasonable reliance” in making arrests or executing searches on the basis of information or authorization from courts or other government officials. 1/ But if the exception is not to swallow the rule, the Leon exception should not apply when the police department conducting the unreasonable search or seizure is itself the source of the mistake that appears to justify the search. In this situation, it can hardly be said that “there is no police illegality and thus nothing to deter.” 2/
In People v. Robinson, 47 Cal. 4th 1104 (2009), however, the Supreme Court of California unanimously adopted this radical expansion of Leon. And it did so in a case in which it did not need to address the issue. In 1999, when Paul Eugene Robinson “was in custody at [a detention center] for two misdemeanor convictions and awaiting transfer to state prison based on a parole revocation [for a] burglary,” California’s DNA database law went into effect. Although Robinson’s crimes did not qualify him for inclusion in the new database, “an unknown person in the Center‟s records department . . . mistakenly identified [him] as a prisoner with a qualifying offense . . . . As a result of that mistake, a [blood] sample . . . was drawn . . . .” The California Department of Justice Laboratory analyzed the sample, uploaded the DNA profile, and got a cold hit to the man wanted on a “John Doe” DNA warrant for “five felony sexual offenses, all perpetrated against Deborah L. on August 25, 1994.” A jury convicted Robinson of these offenses, the California Court of Appeal affirmed, and the state supreme court granted review.
The California Supreme Court held that an arrest warrant for “John Doe, unknown male” with a particular 13-locus STR profile was valid and thus tolled the statute of limitations on rape prosecutions. It held that the erroneous extraction of blood violated state law, but not the Fourth Amendment. For good measure, it added that even if there had been a constitutional violation, it would not have mattered under the Leon good-faith exception to the exclusionary rule. Although there is reason to doubt the Court’s conclusion that the statutorily unauthorized seizure of blood was consistent with the Fourth Amendment, my target here is the pointed rejection of the exclusionary rule. The United States Supreme Court has never approved the admission of evidence seized in violation of the Fourth Amendment by a police agency relying on Its own, mistaken information, and no court should do so.
The Robinson Court relied largely on the recent–and controversial–decision in Herring v. United States, 555 U. S. __ (2009). 3/ In Herring, police officers arrested and searched a suspect and his vehicle. The search uncovered contraband and an illegally possessed weapon. The officers lacked probable cause to detain or search the suspect; however, a police clerk in a neighboring county had advised them that a current warrant called for the suspect’s arrest. In fact, the court had recalled the warrant. The police database did not reflect this fact. Regarding the false report as a single act of “nonrecurring and attenuated negligence,” a bare majority of the Court held that the application of the exclusionary rule was not warranted. Four Justices objected that the extension of Leon to acts of distinct but cooperating police agencies was “no occasion to further erode the exclusionary rule.” 4/
Despite the division within the Court over Herring, one thing is clear. In every Supreme Court case that has treated an officer’s reliance of erroneous information as grounds for suspending the exclusionary rule, the information has come from an unrelated and apparently reliable governmental source. 5/ In these narrow circumstances, courts may balance “the culpability of the police [against] the potential of exclusion to deter wrongful police conduct.” 6/ Within these boundaries, ordinary and “isolated negligence” normally is not enough to warrant exclusion. 7/
To apply this balancing test outside these confines, however, would open every case of a Fourth Amendment violation arising from inaccurate information supplied by fellow police officials to complicated litigation over how the balance should be struck in light of the facts of the case. Courts would need to draw a difficult line between simple negligence and “deliberate, reckless, or grossly negligent conduct,” or between “isolated” negligence and “recurring or systematic negligence.” 8/ Being unable to predict the outcome of a Fourth Amendment violation, police would have sharply reduced incentives to comply with the amendment and to seek judicial warrants. They could be tempted to avoid the dictates of the amendment by dividing up investigations so that each officer can rely on a report from a colleague rather than pursue the investigation in a more direct fashion. The resulting regime would benefit neither the public, the police, nor the courts.
The novel theory that a police agency may rely on its own negligence to avoid the exclusionary rule deviates from Herring‘s express requirement that the negligence be not merely “isolated” (itself a sharply contested proposition in Robinson) but “attenuated.” 9/ As we have seen, in Herring and in every other case applying Leon to admit evidence, the negligent misstatement was attenuated in the sense that a police officer reasonably relied on plausible information from an independent government agency. In Robinson, however, the correctional facility misinformed itself. To allow such nonattenuated misconduct to escape the exclusionary rule would open the courthouse door to widespread, negligent police misconduct in violation of the Fourth Amendment. 10/
Robinson is not the only star in the expanding university of Herring. See, e.g., United States v. Song Ja Cha, No. 09-10147, 2010 WL 775238 (9th Cir. Mar. 9, 2010) (assuming, without analysis, that Herring applies to an unreasonably long, warrantless seizure of a residence to allow officers to obtain a warrant). The Supreme Court needs to arrest this inflation by explicitly confining the Leon exception to reasonable reliance by the police on generally accurate information or judgments from unrelated government officials. A police agency should not be permitted to rely on its own, negligent mistakes to escape the century-old rule of Weeks v. United States, 232 U. S. 383, 398 (1914), that “forbids the use of improperly obtained evidence at trial.” 11/
1. Arizona v. Evans, 514 U.S. 1 (1995) (reliance on court clerk); Illinois v. Krull, 480 U. S. 340 (1987) (reliance on state statute), Herring v. United States, 555 U. S. __ (2009) (reliance on police clerk).
2. Leon, 468 U.S. at __.
3. See generally Albert W. Alschuler, Herring v. United States: A Minnow or a Shark?, Ohio St. J. Crim. L. 463 (2009); Wayne R. Lafave, The Smell of Herring, 99 J. Crim. L. & Criminology 757 (2009); The Supreme Court 2008 Term, 123 Harv. L. Rev. 153 (2009) (criticizing Herring).
4. 555 U.S. at __, __ (concurring opinion of Ginsburg, Stevens, Souter, & Breyer, JJ.).
5. See Leon (a judicial officer); Krull (a legislature whose enactments enjoy a presumption of constitutionality); Evans (judicial staff); Herring (a records clerk at another police department).
6. Herring, 555 U. S. at __.
7. Id. at __.
8. Id. at __.
9. Id. at __.
10. See Albert W. Alschuler, Herring v. United States: A Minnow or a Shark?, 7 Ohio St. J. Crim. L. 463, 463 (2009) (discarding the attenuation requirement “would leave most violations of the Fourth Amendment without a remedy [and] would create a regime in which courts would make most of their Fourth Amendment rulings in dictum if they decided Fourth Amendment questions at all.”).
11. Herring, 555. U.S. at __,