Tag Archives: oral argument

The Oral Argument in Maryland v. King — Part V

It is time to sum up and read the tea leaves that are the transcript of the February 26th oral argument in Maryland v. King. Previous postings concerned these topics:

Part I

  • Whether taking DNA profiles of arrestees is distinguishable from acquiring them from the general population;

Part II

  • Whether deriving information from database trawls that could inform pretrial release decisions and conditions can constitute a special need for warrantless DNA acquisition now or in the future;

Part III

  • Whether DNA profiles are distinguishable from fingerprints on the theory that collecting fingerprints is not even a search;
  • Whether DNA samples are distinguishable from fingerprints because DNA samples contain more personal information;

Part IV

  • Whether Kyllo‘s analysis of thermal imaging of a home applies to DNA profiling;
  • Whether the Court’s precedents show it is unwilling to trust the government;
  • How Skinner, Greenwood, and Davis (4th Cir. 2012) affect the claim that a laboratory analysis limited to identifying features is a search in its own right.

At least some of the Justices appeared to be searching for a theory that would distinguish routine DNA collection and analysis before conviction (DNA-BC) for arrestees from the DNA-BC for everyone in the population. But why? � read more �

The Oral Argument in Maryland v. King — Part IV

The previous installment of this series described counsel’s answers to questions as to how DNA profiling is different from fingerprinting. After pointing out that “there are profound privacy concerns associated with the government’s collection of an individual’s DNA” because “when you evaluate the entirety of an individual’s DNA, there is a great deal of personal information contained there,” counsel for Mr. King added that

Now, the government’s response to that is essentially the “just trust us” defense; namely that the government is not looking at all that information, it is only looking at a certain subset of that information. But that has never been how this Court has analyzed privacy interests, at least outside the special needs context. Probably the closest analog is this Court’s decision in Kyllo v. United States, where the Court said that it was of no moment that the heat-sensing device that was at issue in that case did not detect any information about the intimate details of activities within the home.

I think this is inaccurate (or at least incomplete, as oral argument often is). … [Read the full posting]

The Oral Argument in Maryland v. King — Part II

As noted yesterday, the argument that DNA profiling and database trawling for past crimes is or will be useful for pretrial release determinations intrigued several of the Justices. Justice Sotomayor spoke up:

JUSTICE SOTOMAYOR: And I’m having a hard time understanding the bail argument.Because in my time, most bail decisions were made at the time of arrest. And here the arrest was in April and the results didn’t come up until August. … You don’t use it routinely for the bail determination.

MS. WINFREE: At this point, you’re absolutely correct, Justice Sotomayor. We don’t use it routinely for a couple of reasons. For one, as in Mr. King’s case, there has been in the past a more substantial delay in getting those results back. Our — our lab now is getting results between 11 and 17 days. … Now, of course, that wouldn’t be timely for that first bail determination, but the State under Maryland’s procedure certainly has the ability to go back to — to the judge and ask that … that bail determination to be modified. And in point of fact, … in California’s amicus brief, which was joined by the 49 other States and D.C. and Puerto Rico, they actually do cite two particular examples where [release or] diversion was revoked . …

The Deputy Solicitor General maintained that this use of the DNA would only grow:

MR. DREEBEN: [R]apid DNA will permit DNA identification to replace fingerprint identification because it’s far more accurate and it has far more utility in the secondary purpose of fingerprints, which is to match them to latent prints and solve crimes. … Any judge who is looking at a bail case would like to know: I have a guy who has been arrested on grand theft auto. He has no criminal history. Should I release him back on the street? Well, it’s a first offense, he has family ties; maybe yes. If that … defendant’s DNA came back and returned a cold case hit to a murder-rape, the judge would know he’s not such a good risk to be put back on the street.* [* Order of clause rearranged.]

In responding to this argument, counsel for Mr. King first seemed to concede that when DNA profiling and database trawling could be done rapidly, the system would become constitutional:

CHIEF JUSTICE ROBERTS: There are two different, two different interests. One is we want to solve unsolved crimes; and the other is we want to be sure — we have someone in our custody and we want to be sure, before he is released back into the community, that he isn’t a person who has committed five violent crimes before that. Now, your brief says, well, the only interest here is the law enforcement interest. And I found that persuasive because of the concern that it’s going to take months to get the DNA back anyway, so they are going to have to release him or not before they know it. But if we are in a position where it now takes 90 minutes or will soon take 90 minutes to get the information back, I think that’s entirely different, because there you can find out whether — it’s just tied in with the bail situation, do you want to release him or not.

MR. SHANMUGAM: The touchstone of the analysis under the special needs doctrine is what was the primary purpose of the program at issue. And there is no evidence that pretrial supervision was a purpose of any of these.

CHIEF JUSTICE ROBERTS: That’s because, that’s because we are not yet at a situation where it takes 90 minutes. Sure, it’s not going to do you any good if it’s taking four months or whatever it took in this case. But if it’s at the point where it’s 90 minutes, it would be critical to make that determination.

MR. SHANMUGAM: Well, Mr. Chief Justice, … the constitutional analysis may very well change at a later point. But I think it’s important to underscore that neither the State of Maryland nor the federal government identifies a single instance in which a pretrial supervision decision in their jurisdictions was altered as a result of the DNA test.

But a little later he qualified his position:

JUSTICE SOTOMAYOR: Counsel, so I am really worried about the question … that I think one of my colleagues asked. I agree completely that today it’s used primarily and almost exclusively for purposes of solving other crimes.* But let’s — is this — the question only because technology hasn’t moved fast enough? You said we have to look at the constitutional principles 5 years from now when they will use it to pull up a guy’s criminal history. Not unsolved crimes, but criminal history. Get to that day. … Tell me what the — why you would then say that would still be unconstitutional. [* Order and wording of sentences altered slightly.]

MR. SHANMUGAM: Justice Sotomayor, … the only other potentially applicable exception to the principle that warrantless, suspicionless searches are unconstitutional is the special needs exception, and that exception looks to the primary purpose of the program at issue. And the mere fact that DNA testing could be used for other purposes wouldn’t necessarily be dispositive of the inquiry. If the primary purpose of DNA testing is still to investigate unsolved crimes, the program would still not qualify under the special needs doctrine.

Then again, under questioning from Justice Kagan, he conceded that the multipurpose system could be constitutional:

JUSTICE KAGAN: Just suppose — I mean, I guess the question is, would this be unconstitutional? It’s not the world we are living in now, but let me — 10 years from now the government says, we are really switching over to a fingerprint system — to a DNA system and what that system is going to allow us to do, is it’s going to allow us to identify, and it’s going to allow us to bring up the old criminal history and it’s going to allow us to see whether there are also unsolved crimes that we can tag to this person and discover that he’s really, really dangerous. All right? And so the government puts that system into effect. Is it constitutional?

MR. SHANMUGAM: I think that it could be, and that would simply be because you would have a system where DNA testing is essentially being used as fingerprinting is being used today. But again I don’t think —

The difficulty the Justices experienced in receiving a definitive response to their vision of a multipurpose DNA database system exposes part of the soft underbelly of the so-called special needs doctrine. One might well ask why “the primary purpose” of a program that produces evidence for criminal investigations and prosecutions is so critical? And, if it is so crucial, may a state salvage a law struck down as unconstitutional (because it was intended and used only to generate evidence in unrelated matters against mere arrestees) by re-enacting it, continuing to use it for its previous primary purpose of generating evidence, adding a new statutory preamble, and also using it (like fingerprints) for one or more additional purposes (such as gathering appropriate information for a bail determination) proclaimed in a carefully crafted preamble?

I asked these questions 13 years ago (Kaye 2001). The so-called special needs exception to the ordinary requirements of probable cause and a warrant applies when the government can articulate special interests in a program that also generates evidence of wrongdoing. For example, the government’s special interest in jail security and inmate health and safety justifies most of the searches that the Deputy Solicitor General reminded the Court about in the opening of his argument. When the government’s sole interest is producing evidence with which to catch criminals and the search is a significant intrusion of persons, houses, papers, or effects, then the normal rule is that warrants and probable cause are required. This reflects a prior balancing of governmental and personal interests that allows some searches but constrains arbitrary or unjustified government action. When special interests are present, however, the prior balancing is incomplete, and the outcome of a more comprehensive balancing could be different, As a result, the normal rule demanding warrants and probable cause might not apply (Kaye 2013).

Under this “special interests” theory, balancing is appropriate whenever special interests are present, and whether the balance of interests favors the government or individual does not depend on whether evidence production is a primary, secondary, or tertiary purpose of the program of searches. Yet, since 2000, the “special needs” doctrine has been more complicated–and less coherent than the reconstruction sketched above. As King argued, special interests do not trigger balancing unless they are the “primary purpose” of the program.

At least, this is what the Court first announced in City of Indianapolis v. Edmond, 531 U.S. 32 (2000). However. Edmond was not a multiple-purpose case. For the single purpose of finding narcotics in vehicles, Indianapolis established a program in which police used dogs to sniff for drugs in vehicles pulled over in groups at fixed roadblocks. The Court previously had upheld brief, suspicionless seizures at highway checkpoints for the such singular purposes as combating drunk driving and intercepting illegal immigrants. In addition, it had ruled that walking a drug-sniffing dog around a properly seized vehicle was not even a search. Thus, both components of the program–the checkpoints and the dog sniffs–had withstood constitutional attack. Yet, the Edmond majority reasoned that these cases did not govern: “Because the primary purpose of the Indianapolis narcotics checkpoint program is to uncover evidence of ordinary criminal wrongdoing,” the special needs exception was unavailable.

But neither Edmond nor any other case has tried to apply the primary-purpose limitation to a program that plausibly serves two or more purposes. Would the Indianapolis program have been eligible for special-needs balancing had the city established roadblocks strictly to check for intoxicated drivers, and then, after waiting a decent interval, added a dog-sniff in parallel with the sobriety check?

To cope with the analogous situation envisioned in the questions from the Chief Justice and Justices Kagan and Sotomayor, the Court has at least two stark choices. It could overrule Edmond and abandon the primary-purpose restriction, allowing special needs balancing as long as special interests actually are present. Or, it could engage in a slightly mystical search for the “primary” purpose of a truly multipurpose program.

But even if the special needs exception would apply in the future, the Chief Justice asked, what does it mean for the Maryland law today?

CHIEF JUSTICE ROBERTS: How can I base a decision today on what you tell me is going to happen in two years? You say, in two years we will have this rapid DNA available, but we don’t now. Don’t I have to base a decision on what we have today?

MS. WINFREE: Well, that’s really only one component of our argument, Mr. Chief Justice, that certainly with respect to a bail determination we will be able to make it more rapidly at the time that rapid DNA comes into effect.

Whereupon Justice Scalia got in the last word during Maryland’s rebuttal argument. Expressing his reticence to uphold the Maryland program because of what it might become, he stated:

JUSTICE SCALIA: Yes, but if we believe that the purpose of it has much to do with whether it’s legitimate or not, you can’t demonstrate that the purpose is immediate identification of the people coming into custody. You just can’t demonstrate that now. Maybe you can in two years. The purpose now is — is the purpose you began your presentation with, to catch the bad guys, which is a good thing. But you know, the Fourth Amendment sometimes stands in the way.


1. David H. Kaye, The Constitutionality of DNA Sampling on Arrest, 10 Cornell J. L. & Pub. Pol’y 455 (2001), available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=263145.

2. David H. Kaye, A Fourth Amendment Theory for Arrestee DNA and Other Biometric Databases, 15 U. Pa. J. Const. L. No. 4 (forthcoming 2013), available at http://ssrn.com/abstract=2043259

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

The Oral Argument in Maryland v. King — Part I

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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


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

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