Tag Archives: DNA sampling on arrest

Maryland v. King: A Few Good Links

The more I cogitate on the opinions in Maryland v. King, the more I find the dissenting opinion irritating and the majority opinion disappointing. But explaining precisely why is not so easy. Meanwhile, I recommend the following early but penetrating comments on the opinions:

On the “Clear” Outcome Under “Established” Law

Today’s New York Times included an editorial (California and the Fourth Amendment) on Haskell v. Harris, the challenge to the California Proposition requiring DNA sampling on arrest. En banc oral argument takes place today. The following is a letter I sent to the Times editor. I expect somewhere between 0 and 50 percent of it to be published there (point estimate = 0):

Dear Editor,

Your editorial (September 19) asserts that the constitutionality of taking DNA on arrest “should be clear” given “established rights against unreasonable search and seizure.” Yet, over vigorous dissents, federal courts of appeals have ruled otherwise–twice in panels of the Ninth Circuit and once (en banc) in the Third Circuit.

Whether acquiring purely biometric data from arrestees necessitates a warrant is doubtful, and whether acquiring DNA data is “unreasonable” is a close question. The physical invasion of personal security is minor when the individual is already in custody and the sampling is only marginally more intrusive than fingerprinting. The medical information content of the identification profile is (given current knowledge) only slightly more significant than that of a fingerprint. Very few false convictions arising from DNA database searches have been documented. (One in Australia has been reported.)

Contrary to the suggestion in the editorial, what divided the judges in the Ninth Circuit was not whether “the law’s real purpose was investigation.” No one doubted that. The dissenting judge believed that the Supreme Court already had decided that “fingerprints may not be taken from an arrestee solely for an investigative purpose, absent a warrant or reasonable suspicion that the fingerprints would help solve the crime for which he was taken into custody.” What the Court actually held was “that transportation to and investigative detention at the station house without probable cause or judicial authorization together violate the Fourth Amendment.” The dissenting judge also worried, among other things, that “it is possible that … at some future time,” an identification profile might permit strong inferences about the diseases an arrestee has or might develop.

I do not claim that arrestee DNA sampling clearly is constitutional. There are a number of valid concerns about indefinite sample retention and other matters. Neither do I maintain that its benefits (which are not well quantified) plainly outweigh its costs and its impact on legitimate interests in personal privacy and security. But assertions that the balance is “clear” and that the “established” law dictates the result oversimplify a delicate constitutional question.

The Newest from the Ninth Circuit on Arrestee DNA Databases

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

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

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

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

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

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

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

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

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

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

When Is DNA Collection a “Search or Seizure”?

In a brief opinion, the Supreme Court of Louisiana invoked the constitutionality of routine DNA sampling of custodial arrestees to uphold an order for a cheek swab to an indicted defendant. The case presents an unusual set of facts in that investigators were seeking, for no apparent reason, what the court assumed to be a second sample from the defendant.

After “a shooting in which three individuals were killed” and another wounded, “a witness informed [police] that he observed [Charles] Franklin and Dwayne Johnson changing out of their clothing and into clothing that was black.” Franklin and Johnson then were arrested. At their preliminary examination, a detective “testified that, pursuant to a search warrant for a nearby residence, he recovered clothing similar to what Mr. Franklin was observed wearing and subsequently removing on the night of the offense.” State v. Franklin, No. 2010-K-0564 (La. Ct. App. Aug. 11, 2010), rev’d, No. 2011-1909 (La. Dec. 16, 2011),

Rather than apply for a search warrant for a DNA sample, the state obtained a court order for Franklin to give a buccal swab. Id. Before the order could be enforced, however, the Court of Appeals held that this procedure constituted an unreasonable search or seizure because

The State has not developed a DNA profile from the seized clothing; therefore, the State has not established that the DNA to be seized from Mr. Franklin, standing alone, could ‘constitute evidence tending to prove the commission of an offense.

The Louisiana Supreme Court reversed. At first, it seemed to maintain that judicial review and the equivalent of a warrant were superfluous. Louisiana was the first state to authorize DNA sampling as part of a custodial arrest, and the court was willing to “presume that the Louisiana State Police Crime Laboratory already possesses a sample of defendant’s DNA to which its CODIS DNA section has access for testing as part of a cooperative effort between state and federal authorities to develop a comprehensive identification data base.”

This observation is puzzling. If the state already had a sample for the state databank, why demand that defendant provide another before it had even recovered and analyzed any DNA from the clothing? More fundamentally, the court failed to articulate clearly why DNA sampling “as a routine incident of booking” supported later warrantless DNA sampling. Merely comparing a recorded profile to one developed from the clothes would not rise to the level of a “search” requiring constitutional justification (see DNA Database Trawls and the Definition of a Search in Boroian v. Mueller), but this fact does not explain why the state can compel a suspect to open his mouth to a scraping of cells from the inside of his cheek. Does the intrusion into the mouth fall short of a search in Louisiana?

The Louisiana Supreme Court came close to taking this position. It expressed some skepticism of the notion that

a warrant is required to take another buccal sample from defendant for purposes of testing by the Crime Lab’s Forensic DNA Section as part of the effort to solve a particular crime . . . because collection of the sample, although minimally intrusive, nevertheless constitutes a search.”

This skepticism seems difficult to square with Cupp v. Murphy, 412 U.S. 291 (1973). There, the U.S. Supreme Court described the extraction of material beneath a suspect’s thumbnail to be a “‘severe, though brief, intrusion upon cherished personal security’ that is subject to constitutional scrutiny.” The Louisiana court seemed to recognize the problem (although it did not mention Cupp), for it assumed arguendo that the cheek swabbing “constitutes a search.” On that assumption, the court reasoned that

the state … need only show a “fair probability” the sample may yield evidence to establish the requisite probable cause, not that the search will produce evidence probative one way or another on the question of guilt. Illinois v. Gates, 462 U.S. 213, 231 (1983) (“‘The process does not deal with hard certainties, but with probabilities.'”) . . . . Given probable cause that defendant participated in the charged crimes, it suffices that the state has established that its evidence, removed from defendant’s residence, contains recoverable biological samples that may, but not necessarily will, provide a DNA profile useful for forensic purposes.

This part of the opinion poses another puzzle or two. Why demand probable cause? The language I quoted from Cupp comes from Terry v. Ohio, 392 U.S. 1 (1968), in which the Court approved of limited searches on the basis of a reasonable suspicion rather than probable cause. “Nontestimonial orders” for blood, hair, fingerprints, voice exemplars, and the like do not require probable cause. In any event, both probable cause and reasonable suspicion involve probabilities, not certainties, but this tells us next to nothing about the level of probability that is required to justify a search under either standard. There is no obvious reason that investigators cannot analyze clothing from the vicinity of a crime before demanding a DNA sample from a suspect. In this case, however, “the state refined its motion by presenting a search warrant to the trial judge with a crime lab report attached indicating that the evidence, clothing taken from defendant’s residence in a prior search, contains blood and a single hair strand with follicle, which may be tested and which may yield a DNA profile . . . .” Still, “may yield a DNA profile” is a rather weak promise from the laboratory. Any item of clothing “may yield” a profile.


Update on Pennsylvania Senate Bill 775

By a vote of 42-6, the Pennsylvania Senate passed a bill (discussed here on March 18, 2011) to begin taking DNA samples on arrest and to authorize kinship trawling in some cases. The proposed changes come with a price tag. Although the state police laboratory is reducing the backlog of convicted-offender samples, it hardly has surplus capacity. The appropriations committee’s fiscal note estimates the cost for laboratory staff and supplies for phasing in just a portion of the samples that could be collected from arrested at more than $560,000 in 2012-13.

Third Circuit Upholds Federal Arrestee DNA Database Law

In 2009, the United States District Court for the Western District of Pennsylvania made legal history. For the first time, a federal court held that the government lacked the constitutional power to compel individuals who had been arrested and charged with a crime to provide a DNA sample. Today, the Court of Appeals for the Third Circuit (one of the 12 appellate courts that sit one rung below the Supreme Court in the federal judicial system) reversed this ruling. Yet, both courts applied the “totality of the circumstances” standard for ascertaining the reasonableness of searches and seizures. What, then, accounts for the anticlinal outcomes?

Basically, the two courts took very different views of the individual’s Fourth Amendment interests and their role in evaluating the legislation. The following passages from the district court opinion and the opinion of the majority of the court of appeals are illustrative.

  • District Court: [T]he search in this instance is one that reveals the most intimate details of an individual’s genetic condition, implicating compelling and fundamental “interests in human dignity and privacy. See Schmerber v. California, 384 U.S. 757, 770 (1966).
  • Court of Appeals: Schmerber recognized society’s judgment that blood tests “do not constitute an unduly extensive imposition on an individual’s personal privacy and bodily integrity.”
  • District Court: [T]o compare the fingerprinting process and the resulting identification information obtained therefrom with DNA profiling is pure folly. Such oversimplification ignores the complex, comprehensive, inherently private information contained in a DNA sample.
  • Court of Appeals: While we acknowledge the seriousness of Mitchell’s concerns about the possible misuse and future use of DNA samples, we conclude that these hypothetical possibilities are unsupported by the record before us and thus do not have any substantial weight in our totality of the circumstances analysis.

The district court was not reassured by the fact that DNA identification profiling currently is little more than a token of personal identity. On the basis of a student law review article, it feared that “DNA samples may reveal private information regarding familial lineage and predisposition to over four thousand types of genetic conditions and diseases; they may also identify genetic markers for traits including aggression, sexual orientation, substance addiction, and criminal tendencies.”

The majority of the en banc court of appeals was less fearful that the government would change its use of the samples to go beyond the current production and trawling of identification profiles. It observed that “[t]he judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear. … At this juncture, … we consider the amount and type of personal information to be contained in the DNA profile to be nominal.”

Thus, the district court saw the retained samples as a potentially rich source of private information about the arrestee that the government might want to exploit some day (although it it did not explain why the government would be interested in performing genetic tests for 4,000 or more medical conditions). The court of appeals was content to uphold the status quo: “As currently structured and implemented . . . the DNA Act’s compulsory profiling of qualified federal offenders can only be described as minimally invasive–both in terms of the bodily intrusion it occasions, and the information it lawfully produces.”

Similar cases are pending before the Second and Ninth Circuits. I predict that both will uphold the federal law — over some vigorous dissents. When will the Supreme Court step in?


United States v. Mitchell, 681 F.Supp.2d 597 (W.D. Pa. 2009)

United States v. Mitchell, No. 02-2859 (3d Cir. Aug. 25, 2011) (en banc)

More on Pennsylvania Senate Bill 775

The Pennsylvania Senate Judiciary Committee held a hearing on DNA evidence issues today. The attached statement submitted to the committee discusses the provisions of SB 775 on taking DNA from arrestees, on kinship trawling (called “modified DNA matching” in the bill), and on the release of DNA anonymized profiles for research.