by By David Yin
On Nov. 9th the Supreme Court granted certiorari in Maryland v. King, 425 Md. 550 (2012), a case from the Maryland Court of Appeals, that state’s highest court.
Maryland, like many states, has a statute requiring state and local police to collect DNA samples from individuals merely arrested for crimes of violence or burglary, MD Code Pub. Safety § 2-504. The federal government has a similar law, 42 U.S.C. § 14135(a), which commands federal law enforcement to collect DNA samples from every individual charged with federal felonies, sexual crimes, or other crimes of violence (though if an the individual is not convicted, there is a mechanism to expunge his or her DNA submission from the national database). Importantly, however, these DNA samples are collected pre-conviction, from presumptively innocent individuals, and without individualized judicial review–i.e. without warrants. The Maryland Court of Appeals held that the State of Maryland’s collection of buccal swabs for DNA testing from arrestees like Mr. King was unconstitutional under the Fourth Amendment. After the Maryland v. King ruling was issued, Chief Justice Roberts issued a stay to suspend enforcement of the state court ruling; now that the Supreme Court has granted certiorari, the Court will have the opportunity to formally overturn it and legitimize DNA collection statutes around the country.
The Maryland Court of Appeals applied a totality of the circumstances balancing test to decide whether King’s reasonable expectation of privacy outweighed the state’s interest in identifying him. All the myriad arguments in this balancing test are beyond the scope of a blog post. Instead, I would like to look atMaryland v. King through the lens of two Fourth Amendment cases decided last term: United States v. Jones, 132 S. Ct. 945 (2012), and Florence v. Board of Chosen Freeholders of the County of Burlington, 132 S. Ct. 1510 (2012).
Florence was arrested in New Jersey for failure to pay a fine (wrongly, as it turned out–he later proved that he had paid the fine). After being subjected twice to a New Jersey jails policy that allowed routine strip-searches of inmates, Florence sued the New Jersey jail for invasion of privacy. The Supreme Court held inFlorence that the routine strip-searching struck a reasonable balance between the inmate’s expectation of privacy and the secure administration of jails, even if there was no reason to suspect the individual of carrying contraband. Four justices dissented in Florence: Breyer, Ginsburg, Sotomayor, and Kagan, noting that empirically these strip searches were hardly necessary, with only one in a thousand turning up contraband. In Jones, the GPS-tracking case, the Court found unconstitutional a warrantless (the GPS was installed after the expiry of the warrant) tracking of a car by GPS for 28 straight days. Justice Scalia’s majority opinion, however, escaped the concerns regarding the amount of information collected to focus on a narrow property-rights aspect of the case: the tracking was a “search” because officers had planted a device on a car, thus creating a trespass and an unconstitutional invasion of privacy.
Together, Florence and Jones initially seem to support Maryland’s side. Florence instructs that mere arrestees have a greatly diminished expectation of privacy (not only can they be fingerprinted and have mug-shots taken, they can even be strip searched!), and Jones tells us that the Court is more concerned with the extent of physical invasions than the fruits the search, i.e. the incredible amount of data that can be collected by advancing technology. But defense attorneys may also note that Florence and Jones share concurring opinions by Justice Alito that diverge from the majority analysis in each case. In fact, Justice Alito may provide a critical fifth vote, along with the liberal four justices from Florence, to uphold King and declare the routine collection of DNA from arrestees unconstitutional.
Justice Alito’s concurrence in Florence “emphasize[d] the limits” of the holding in applying only to “arrestees who are committed to the general population of a jail….” Alito acknowledged that undergoing a strip-search is “undoubtedly humiliating and deeply offensive to many” but was justified because prison safety was at stake: “there is a serious danger that some detainees will attempt to smuggle weapons, drugs, or other contra-band into the jail.” Thus, for Alito, it is not so much that the arrestee’s expectation of privacy is so diminished merely by being arrested, but that his strip-search is allowable for the special safety concerns related to administering jails. In King, the collection and analysis of DNA is arguably less traditionally humiliating than a strip-search, and yet it is in other ways just as private. Unlike our fingers and faces, which are ordinarily on public display, we protect our bodily tissues more jealously from invasion than we clothe our bodies from sight. And while a strip-search may prevent a volatile prison from descending into chaos, a DNA fingerprint only assists law enforcement in performing its investigations–if that is enough to merit a search, then no castle would be safe from the constable’s intrusion.
In Jones, Alito authored a concurrence joined by Ginsburg, Breyer, and Kagan that was highly critical of the trespass-based approach of the majority. Alito warned that law enforcement would simply conduct the same continuous tracking as before without committing a physical trespass. Instead, Alito suggested that we should be concerned about the radical invasions of privacy made possible by new technology and concluded that the lengthy monitoring–the amount and nature of information produced by the search–impinges on a reasonable expectation of privacy and should have required a warrant for a Fourth Amendment search. At the moment, the DNA swabs at issue in King reveal identifying information similar to traditional fingerprinting, but that is perhaps more due to the limitations of technology than anything else. Right now it’s cost-effective to amplify DNA from mitochondria, of which there are a lot more than cells in a small tissue sample, producing a limited DNA fingerprint. When technology advances and genetic sequencing becomes cheaper however, the preserved tissue samples could be used to generate a lot more allegedly “identifying” phenotypes, while revealing much more information than traditionally possible. As with Jones, the real issue is not that there was a physical search, but simply how much technology can reveal about our lives, our activities, and very fundamentally who we are on a genetic level.
Perhaps Alito will be as squeamish about DNA collection as he was about GPS-tracking, and become the fifth bulwark against the erosion of Fourth Amendment rights by new technology.