{"id":1593,"date":"2012-11-21T20:16:30","date_gmt":"2012-11-22T01:16:30","guid":{"rendered":"http:\/\/journals.law.harvard.edu\/hlpr\/?p=1593"},"modified":"2015-10-02T15:22:31","modified_gmt":"2015-10-02T15:22:31","slug":"maryland-v-king-the-constitutionality-of-dna-fingerprinting-for-arrestees","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/lpr\/2012\/11\/21\/maryland-v-king-the-constitutionality-of-dna-fingerprinting-for-arrestees\/","title":{"rendered":"Maryland v. King: The Constitutionality of DNA Fingerprinting for Arrestees"},"content":{"rendered":"

By\u00a0David Yin<\/p>\n

<\/em>On Nov. 9th the Supreme Court granted certiorari in\u00a0Maryland v. King<\/em><\/a>, 425 Md. 550 (2012), a case from the Maryland Court of Appeals, that state\u2019s highest court.<\/p>\n

Maryland, like many states,\u00a0has 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\u00a0\u00a7 2-504.\u00a0The federal government has a similar law,\u00a042 U.S.C. \u00a7 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\u00a0presumptively innocent<\/span>\u00a0individuals, and without individualized judicial review\u2013i.e. without warrants.\u00a0The Maryland Court of Appeals held that the State of Maryland\u2019s collection of buccal swabs for DNA testing from arrestees like Mr. King was unconstitutional under the Fourth Amendment. After the\u00a0Maryland v. King<\/em>\u00a0ruling was issued, Chief Justice Roberts\u00a0issued a stay<\/a>\u00a0to 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.
\n
\nThe Maryland Court of Appeals applied a totality of the circumstances balancing test to decide whether King\u2019s reasonable expectation of privacy outweighed the state\u2019s 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<\/em>\u00a0through the lens of two Fourth Amendment cases decided last term:\u00a0United States v. Jones<\/em><\/a>, 132 S. Ct. 945 (2012), and\u00a0Florence v. Board of Chosen Freeholders of the County of Burlington<\/a>, 132 S. Ct. 1510 (2012).<\/p>\n

Florence was arrested in New Jersey for failure to pay a fine (wrongly, as it turned out\u2013he later proved that he had paid the fine).\u00a0After 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<\/em>\u00a0that the routine strip-searching struck a reasonable balance between the inmate\u2019s 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\u00a0Florence<\/em>: Breyer, Ginsburg, Sotomayor, and Kagan, noting that empirically these strip searches were hardly necessary, with only one in a thousand turning up contraband.\u00a0In\u00a0Jones<\/em>, 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\u2019s 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 \u201csearch\u201d because officers had planted a device on a car, thus creating a trespass and an unconstitutional invasion of privacy.<\/p>\n

Together,\u00a0Florence<\/em>\u00a0and\u00a0Jones<\/em>\u00a0initially seem to support Maryland\u2019s side.\u00a0Florence<\/em>\u00a0instructs 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\u00a0Jones<\/em>\u00a0tells 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\u00a0Florence<\/em>\u00a0and\u00a0Jones<\/em>\u00a0share 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\u00a0Florence<\/em>, to uphold\u00a0King\u00a0<\/em>and declare the routine collection of DNA from arrestees unconstitutional.<\/p>\n

Justice Alito\u2019s concurrence in\u00a0Florence<\/em>\u00a0\u201cemphasize[d] the limits\u201d of the holding in applying only to \u201carrestees\u00a0who are committed to the general population of a jail<\/em>\u2026.\u201d Alito acknowledged that undergoing a strip-search is \u201cundoubtedly\u00a0humiliating\u00a0and deeply offensive to many\u201d but was justified because prison safety was at stake: \u201cthere is a serious danger that some detainees will attempt to smuggle weapons, drugs, or other contra-band into the jail.\u201d Thus, for Alito, it is not so much that the arrestee\u2019s 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\u00a0King<\/em>, 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\u00a0descending into chaos<\/a>, a DNA fingerprint only assists law enforcement in performing its investigations\u2013if that is enough to merit a search, then no castle would be safe from the constable\u2019s intrusion.<\/p>\n

In\u00a0Jones<\/em>, 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\u2013the amount and nature of information produced by the search\u2013impinges on a reasonable expectation of privacy and should have required a warrant for a Fourth Amendment search. At the moment,\u00a0<\/em>the DNA swabs at issue in\u00a0King<\/em>\u00a0reveal identifying information similar to traditional fingerprinting, but that is perhaps more due to the limitations of technology than anything else. Right now it\u2019s 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\u00a0tissue samples could be used to generate a lot more allegedly \u201cidentifying\u201d phenotypes, while revealing much more information than traditionally possible. As with\u00a0Jones<\/em>, 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.<\/p>\n

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.<\/p>\n","protected":false},"excerpt":{"rendered":"

By\u00a0David Yin On Nov. 9th the Supreme Court granted certiorari in\u00a0Maryland v. King, 425 Md. 550 (2012), a case from […]<\/p>\n","protected":false},"author":6,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[2],"tags":[],"class_list":["post-1593","post","type-post","status-publish","format-standard","hentry","category-blog"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/peZQka-pH","_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts\/1593","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/users\/6"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/comments?post=1593"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts\/1593\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/media?parent=1593"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/categories?post=1593"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/tags?post=1593"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}