Tag Archives: search

Balancing versus Categorizing in Maryland v. King

The arrestee DNA case of Maryland v. King offers the Supreme Court the opportunity to address a fundamental issue of Fourth Amendment jurisprudence. The Amendment prohibits “unreasonable searches and seizures.” According to the briefs of Maryland and the United States, the established mode of ascertaining reasonableness is an ad hoc “totality of the circumstances” balancing of interests. The major individual interests would seem to be in keeping information about one’s identity and presence at certain locations private, and the dominant government interests are in investigating and solving cases.

These briefs rely on cases that balanced state and individual interests related to searches in limited circumstances–to create or mark the bounds of new, categorical exceptions, or to subject probationers and parolees to searches without a warrant or any well-defined categorical exception to the warrant requirement. Like most lower court cases on arrestee DNA sampling, the briefs do not explain why balancing should apply to DNA testing before conviction. Rather, they seem to assume that the reasonableness of searches flow from an immediate balancing of interests.

The competing, and more traditional view, presented in Alonzo King’s brief, is that it takes a categorical exception to permit a search without a valid judicial warrant. This brief argues that DNA sampling does not fall under an established exception to the general requirement of a search warrant and that ad hoc balancing is not the norm in determining the reasonableness of a search.

A critical case in this regard is Samson v. California, 547 U.S. 843 (2006). There, the Court held that parolees had no protection from warrantless searches to uncover evidence of crimes. It did so without purporting to create a new exception to this requirement. Moreover, it is hard to discern a satisfactory basis for such an exception. All the previous exceptions rest on the presence of a government interest above and beyond the discovery of evidence that would be useful in a criminal case against the target of the search (such as the government’s role as an employer in maintaining a drug-free workforce), an unusually pressing need to dispense with a warrant (as in a limited investigatory stop to acquire information about what appears to be an imminent or ongoing crime), or government conduct that is a milder invasion of personal liberty or privacy than a canonical search or seizure of the person (such as a limited pat down of the individual’s outer clothing). Writing for the Samson Court, however, Justice Thomas reasoned that because parole is “an established variation on imprisonment” with an express condition that the parolee is subject to warrantless searches, “petitioner did not have an expectation of privacy that society would recognize as legitimate.” Id. at 852. Such language normally means that government conduct does not rise to the level of a search. If Samson had no reasonable expectation of privacy, then there was no search under Katz v. United States, 389 U.S. 347 (1967), and hence no need to create an exception to the rule that a search is presumptively unreasonable without a warrant  Thus, at least one prominent commentator (Kerr 2012, p. 318) reads Samson as eliminating the per se rule rather than creating a new exception. I tend to think that the Court is simply vacillating, with no guiding principles, between the two theories of reasonableness–the one that starts with warrants and the more open textured one advanced by Maryland and the federal government.

There is a rich literature on these two theories, but one would not know this from perusing the briefs. Certainly, some Justices have questioned the preference for warrants for years. The King case could test whether their doubts have spread to a majority of the Court, leading to a more flexible but less predictable framework for applying the Fourth Amendment across the board.


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

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.


DNA on Arrest: The Score is Tied

Twelve 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.” Today, the movement to acquire DNA from individuals not convicted of a crime and to check it against state and national databases of DNA profiles from unsolved crimes is snowballing. There now are 21 states with similar laws. In this year alone, seven states — a full one-third of the total — enacted such laws. (Williams 2009).

These laws have had a placid childhood, with surprisingly few challenges to their constitutionality. This period of calm is coming to an end, as conflicting opinions on the reasonableness of these searches under the Fourth Amendment emerge. Within the next few years, it seems likely that, as Kansas State Representative Pat Colloton (R), who authored the bill that initiated her state’s DNA sampling program predicted, “this issue will go to the United States Supreme Court.” (Gramlich 2006).

This posting presents a scoreboard on the litigation and scholarly commentary to date. It is based on preliminary research. 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 arguing that convicted-offenders databases are unconstitutional. These authors would reach the same conclusion for a database that includes arrestees, but since the lower courts have resoundingly rejected their analyses, little would be gained by keeping track of them here.

The tables are descriptive rather than critical. They simply make the point that as yet there is no consensus on the constitutionality of taking DNA samples during a custodial arrest 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). Later, I shall be commenting on some of the more superficial, if not silly, arguments that are surfacing in the pending cases.

Table 1. Caselaw on the Constitutionality of Statutes
Mandating DNA Sampling on Arrest (Nov. 28, 2009)

Appellate: Highest Courts (1-0)
● 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)
Appellate: Intermediate Courts (0-1)
● 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)
● Related case: Friedman v. Boucher, 580 F.3d 847 (9th Cir. 2009) (an arrest does not justify DNA sampling without an applicable statute)
Federal District Courts (1-1)
● United States v. Pool, CR. No. S-09-0015 EJG, 2009 WL 2152029 (E.D.Cal. July 15, 2009)
(federal arrestee law upheld under “totality of circumstances” balancing test) (oral argument before the Ninth Circuit Court of Appeals in docket no. 09-10303 scheduled for the second week of December)
● United States v. Mitchell, No. 2:09cr105, 2009 U.S. Dist. LEXIS 103575 (W.D. Pa. Nov. 6, 2009) (federal law held unenforceable as per se unreasonable)
● Pending: Haskell v. Brown, 09-cv-04779-CRB (N.D. Cal. 2009) (challenge to California law adopted by proposition, no clear standard articulated by either party) (hearing on preliminary injunction scheduled for December 4)

Table 2. Law Review Articles and Notes on the Constitutionality
of Statutes Mandating DNA Sampling on Arrest (Nov. 28, 2009)

Faculty: (1-1)
● 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 of private, nonidentifying 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 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)
Student (2-2)
● 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)
● Reneé 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)
● 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)
● 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)
● 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”)


John Gramlich, States Collecting DNA from Arrestees, July 27, 2006, http://www.stateline.org/live/details/story?contentId=129960, accessed Nov. 28, 2009

Richard Williams, Taking DNA Samples from Arrestees, 17 Legisbrief No. 40, Oct. 2009, http://www.ncsl.org/?TabId=18715, accessed November 28, 2009

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”) and 2009.