Tag Archives: King

Reconsidering the “Considered Analysis”: How Convincing Are the Cases Cited in the Stay Order in Maryland v. King?

For nearly a decade, DNA-on-arrest laws eluded scrutiny in the courts. For another five years, they withstood a gathering storm of constitutional challenges. In King v. State, 42 A.3d 549 (Md. 2012), however, the Maryland Court of Appeals reasoned that usually fingerprints provide everything police need to establish the true identity of an individual before trial and that the state’s interest in finding the perpetrators of crimes by trawling databases of DNA profiles is too “generalized” to support “a warrantless, suspicionless search.” The U.S. Supreme Court reacted forcefully. Even before the Court could consider issuing a writ of certiorari, Chief Justice Roberts stayed the Maryland judgment. His chambers opinion signaled that “given the considered analysis of courts on the other side of the split, there is a fair prospect that this Court will reverse the decision below.”

Some thoughts on the lower court opinions and the issues the Supreme Court will confront are in press in the online Discourse section of the UCLA Law Review. The essay provides a more coherent, complete, and polished presentation than the scattered remarks in earlier postings on this blog. It briefly examines four sets of opinions–the early one from the Virginia Supreme Court in Anderson, the Third Circuit’s en banc opinions in Mitchell, the Ninth Circuit’s panel opinions in Haskell (vacated to make way for en banc review), and the Arizona Supreme Court’s opinion in Mario W. Building on these judicial efforts, the essay outlines the Fourth Amendment questions that a fully considered analysis must answer, identifies questionable treatments of “searches” and “seizures” in the four sets of opinions, and criticizes the creative compromise in Mario W. that allows sample collection but not DNA testing before conviction.

I do not think that there is much room for compromise on the constitutional question. A couple of opinions maintain (in dictum) that preconviction collection is acceptable after, but not before, an indictment or preliminary hearing. That’s another compromise, of sorts, and the Maryland law (as the state has implemented it) postpones DNA collection until after a probable-cause-for-trial hearing. Thus, anything the Supreme Court will say in King on DNA collection as part of the booking procedure will be dictum. It seems to me, however, that once an individual is legitimately detained, either the Fourth Amendment permits the compulsory collection, analysis, and use of DNA–the whole ball of wax–as a biometric identifier for both authentication and criminal intelligence purposes or it does not.  Thus, I am betting that the Court will write a broad opinion upholding DNA database laws at all points after arrest.  But IMHO, it’s a close question.


David H. Kaye, On the “Considered Analysis” of Collecting DNA Before Conviction, 60 UCLA L. Rev. Discourse (forthcoming 2013) (preprint)

David H. Kaye, Drawing Lines: Unrelated Probable Cause as a Prerequisite to Early DNA Collection, 91 N.C. L. Rev. Addendum 1 (2012) (preprint)

Crossposted to Forensic Science, Statistics, and the Law.

The Constitutionality of DNA Collection Before Conviction: An Updated Scorecard

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

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

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

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

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

Table 1. Case law

Appellate: State Supreme Courts (1.5-1.5)

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

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

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

Appellate: Federal Courts (2-0)

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

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

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

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

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

Table 2. Law Review Articles and Notes


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


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


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

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

Supreme Court to Review DNA Swabbing on Arrest??

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.” [1]

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. [2])

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. [3]

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.

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

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

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

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

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

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

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

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

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


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


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

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