The Supreme Court’s opinion in Maryland v. King came out earlier today, concerning whether the Fourth Amendment permits the collection of DNA samples upon arrest. In an interesting 5-4 split (with Breyer joining the conservative wing, and Scalia the liberal one), the Court answered in the affirmative. And while I agree with the opinion on public policy (and scientific) grounds, its legal analysis leaves something to be desired.
The facts of the case are simple. In 2009, Alonzo King was arrested for second-degree assault, a felony in Maryland. Under Maryland’s DNA Collection Act, a buccal swab was warrantlessly taken from King during booking and entered into Maryland’s DNA database. King’s DNA profile later turned out to match to DNA left at the scene of a 2003 rape, a crime for which he was later convicted. The issue before the Court is simply whether this buccal swab–taken without a warrant, and before King was convicted of anything–violated the Fourth Amendment. The crux of the majority opinion focuses on whether obtaining the swab was reasonable, given King’s circumstances (being arrested for a serious crime), and the sort of evidence it provides.
From a public policy perspective, I agree with the outcome: The potential benefits of finding actual perpetrators of cold crimes and, potentially at least, freeing individuals who may have been wrongly convicted of others seem to me to far, far outweigh any privacy concerns. Again, the information obtained are genetic profiles as opposed to sequences, something I’ve written about elsewhere; buccal swabs really aren’t that intrusive; and the opportunities for shenanigans–like doing familial searches of DNA samples–seem to be prohibited by most laws that concern DNA collection. And, for what its worth, the majority opinion gets its science (mostly) right. It focuses on the difference between “coding” and “noncoding” regions and seems to understand what CODIS profiles consist of (i.e., sets of numbers indicating STR repeats at different loci).
But, from a legal perspective, several aspects of the Court’s decision do trouble me. First, the Court’s determination that buccal swabs are not unduly intrusive, and therefore “reasonable,” rests on the fact that “[a] buccal swab is a far more gentle process than a veni-puncture to draw blood,” an issue in another of the Court’s decisions this term, Missouri v. McNeely. (Slip op. at 8.) Maybe so. Most people, I suspect, would rather have a Q-Tip in their mouth than a needle in their arm. But this is a truly artificial distinction for the Fourth Amendment’s purposes. The violation of bodily integrity has long been the hallmark of an unreasonable search. Now, the Fourth Amendment dictates that cheek swabs, some fingernail scrapings, and some breathalyzers are reasonably invasive, but needle draws, other fingernail scrapings, and yet other breathalyzers are not. If the lodestar of the Fourth Amendment are citizens’ “reasonable expectations of privacy,” no one’s view of privacy parallels this list. How lower courts will ever be able to make sense of these distinctions is anyone’s guess.
Second, and relatedly, much of the Court’s analysis is tethered to the fact that the because the police had probable cause, the search of the arrestee’s person was reasonable under the circumstances. What then to make of Terry stop-and-frisks, where police, although short of probable cause, may search the detained’s pockets only if they believe that the suspect is carrying a weapon? We live in a peculiar world where the contents of one’s pockets is a “‘cherished personal security’ that is subject to constitutional scrutiny,” but the contents of one’s mouth is not.
Third, and most problematic, the Court’s pretext for this search–the identification of the arrested individual–is totally bunk. King was undeniably swabbed because police and prosecutors thought it would hit a cold case, not because anyone doubted Alonzo King was who he said he was. Even worse, the Court’s historical analysis of traditional problems of criminal identification includes Bertillon measurements, or Bertillonage, a thoroughly debunked form of proto-eugenics. Appeals to better parts of history, even when wrong, may have served some instructive value here. But appeals to the truly ugly portion of nineteenth century criminology does no one, including the majority, any favors.
The dissent, authored by Justice Scalia, does a pretty good job knocking these arguments down on factual grounds (!). I’ll let Justice Scalia simply recap the incongruity of this line of reasoning:
So, to review: DNA testing does not even begin until after arraignment and bail decisions are already made. The samples sit in storage for months, and take weeks to test. When they are tested, they are checked against the Unsolved Crimes Collection—rather than the Convict and Arrestee Collection, which could be used to identify them. The Act forbids the Court’s purpose (identification), but prescribes as its purpose what our suspicionless-search cases forbid (“official investigation into a crime”). Against all of that, it is safe to say that if the Court’s identification theory is not wrong, there is no such thing as error.
(Scalia, J., dissenting, slip op. at 12.)
This case, therefore, presents several interesting contradictions: between public policy and constitutional right; between scientific accuracy and legal accuracy; and, of course, between “liberal” and “conservative” viewpoints about these difficulties. Bioscience at the Supreme Court is often a mouth…errrr…eye-opener.