Why so contrived? Fourth Amendment balancing, per se rules, and DNA databases after Maryland v. King.

• Author: Kaye, David H.
• Position: Introduction through II. Doctrinal Alternatives A. Discarding the Per Se Rule, p. 535-565

TABLE OF CONTENTS INTRODUCTION I. THE COURT'S REASONING: FREE-FORM BALANCING WITH BLINDERS A. Deciding to Balance B. Balancing to Decide C. The Dissent's Suspicionless Search Doctrine II. DOCTRINAL ALTERNATIVES: A CLOSER LOOK AT PSUWE AND THE DEMISE OF THE WARRANT-PREFERENCE RULE A. Discarding the Per Se Rule B. Special Needs Balancing C. A Broader Biometric Exception III. MORE TO COME A. Noncoding Loci and Statutory Privacy Protections B. From "Serious Offenses" to Universal Coverage C. Uniformity of Application D. No Bodily Intrusion E. Outer-directed Database Trawling (a.k.a. "Familial Searching") F. Profiling Before Charging G. Retaining Without Convicting CONCLUSION INTRODUCTION

In Maryland v. King, (1) the Supreme Court rejected a constitutional challenge to the practice of routinely collecting DNA from arrested individuals. (2) A bare majority of five Justices effusively endorsed the acquisition of DNA samples for "identification" before conviction (DNA-BC). (3) In response, four dissenting Justices called the opinion a precedent-shattering and "scary" (4) foundation for "the construction of ... a genetic panopticon" (5) that could gaze into the DNA of airline travelers, motorists, and public school students. (6)

The case began when police in Maryland arrested Alonzo King for menacing people with a shotgun. (7) Following the arrest, they took his picture, recorded his fingerprints--and swabbed the inside of his cheeks. (8) When checked against Maryland's DNA database, his DNA profile led to the discovery that six years earlier, King had held a gun to the head of a fifty-three-year-old woman and raped her. (9) Before the DNA match, the police had no reason to suspect King of that crime. Lacking probable cause--or even reasonable suspicion--they did not rely on a judicial order to swab his cheek. They relied on a state law that mandated collection of DNA from all people charged with a crime of violence or burglary. (10)

King appealed the resulting rape conviction. (11) He argued that the DNA collection deprived him of the right, guaranteed by the Fourth Amendment to the Constitution, to be free from unreasonable searches or seizures. (12) Maryland's highest court agreed. (13) It held that except in the rarest of circumstances where a suspect's true identity could not be established by conventional methods--the court gave the example of a face transplant (14)--forcing an arrestee to submit to DNA sampling was unconstitutional. (15)

The state petitioned the Supreme Court for review. (16) Over and over, the Court had denied requests from convicted offenders and, more recently, from arrestees to address the legality of state and federal laws mandating routine collection of their DNA. But this case was different. Never before had a state supreme court or a federal appellate court deemed a DNA database law unconstitutional. (17) Even before the Court met to consider whether it would review the case, Chief Justice John Roberts stayed the Maryland judgment. (18) His chambers opinion stated "there is a fair prospect that this Court will reverse the decision below" (19) and found that "the decision below subjects Maryland to ongoing irreparable harm." (20)

The Chief Justice's prediction proved correct. But the margin of victory was as narrow as it could be, and the majority opinion leaves important questions unresolved. Moreover, the dissenting Justices issued a biting opinion importuning the Court "some day" (21) to repudiate its "incursion upon the Fourth Amendment." (22) Indeed, when Justice Anthony Kennedy announced the opinion of the Court, Justice Antonin Scalia invoked the rare practice of reading a dissent aloud. For eleven minutes, he mocked the majority's defense of Maryland's law as a means of identifying arrestees. (23) "[I]f the Court's identification theory is not wrong, there is no such thing as error," he railed. (24) As he and the three Justices who joined his dissenting opinion (Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan) saw it, the majority's reasoning "taxes the credulity of the credulous." (25)

The popular press and bloggers seized on the dissent's portrayal of the Court's opinion. (26) One trenchant journalist asked, "Why did Kennedy write his opinion in a way that makes him sound like the last guy on Earth to discover Law & Order?" (27) Why indeed? Justice Kennedy knew perfectly well that DNA-BC was being used to solve crimes. That was why the Chief Justice had granted the stay. It was why Justice Samuel Alito had flagged the case during the oral argument as "perhaps the most important criminal procedure case that [the Supreme] Court has heard in decades." (28) It was why the first words from Maryland's Deputy Attorney General at oral argument were "Mr. Chief Justice, and may it please the Court. Since 2009, when Maryland began to collect DNA samples from arrestees charged with violent crimes and burglary, there had been 225 matches, 75 prosecutions and 42 convictions, including that of Respondent King." (29)

This Article explains why Justice Kennedy's opinion seems so contrived, describes more convincing (and doctrinally adequate) ways to analyze the constitutionality of DNA-BC, and probes the boundaries of the Court's decision. I suggest that the King Court treated the primary value of DNA-BC--as a crime-solving tool--as merely incidental to other functions because of the Court's ambivalent jurisprudence on the propriety of balancing state and individual interests to ascertain the reasonableness of searches under the Fourth Amendment. The majority was unwilling or unable to speak clearly about the category of cases in which balancing is permissible. It was unwilling or unable to consider creating an express exception to accommodate the traditional rule that searches that do not fall within defined exceptions necessarily require probable cause and a warrant. (30) As a result, the Court opened itself to the dissent's charge of blinking reality and of being less than "minimally competent [in] English." (31)

But the dissenting opinion, I maintain, fares no better. For all its barbs and jibes, its turns of phrases, and its literary allusions, the opinion points to no fundamental individual interest or social value that could justify so bilious a condemnation of DNA-BC. It presents an oversimplified description of Fourth Amendment jurisprudence and applies a one-size-fits-all approach to all types of searches of the person, even though these searches vary greatly in their impact on legitimate individual interests and in their value to law enforcement.

In short, the opinions represent a lost opportunity to clarify the law on balancing tests for Fourth Amendment rights and to scrutinize biometric data collection and analysis practices within a more coherent doctrinal framework. To explain and justify this assessment, Part I describes the reasoning of the Justices. It shows how the majority opinion expands an ill-defined set of cases in which a direct balancing of interests determines the reasonableness of certain searches or seizures. It also maintains that the dissent simply drew an arbitrary line that was compelled neither by precedent nor by the interests that should determine the scope of Fourth Amendment protection.

Part II looks more deeply into how the Court reasoned about reasonableness. It describes the existing version of the rule that searches without a warrant and probable cause are unreasonable without an applicable exception--what I call the PSUWE (per-se-unreasonable-with-exceptions) framework. It contrasts this framework to an earlier "warrant preference" rule, (32) regime, (33) model, (34) or view (35) that "the modern Court has increasingly abandoned." (36) After explicating the difference between those two methods for analyzing warrantless searches, it argues that King does not obliterate the PSUWE framework. In addition, it suggests that balancing within this framework to create either an exception under the special needs rubric or a categorical exception for certain types of biometric data would have been preferable to the majority's direct resort to balancing.

Part III shows that the opinions in King, having been forged in the crucible of incremental, case-by-case adjudication, do not come to grips with obvious variations on Maryland's version of DNA-BC, let alone the most basic questions about DNA databases for law enforcement that society must confront. In this Part, I try to elucidate these questions and to enucleate the opinions' implications for some variations in DNA-BC statutes in light of likely advances in DNA science and technology. This analysis requires us to attend to the nature of the DNA sequences that are, and might be, used in law enforcement databases, the analogy between anatomical biometrics and these DNA sequences, and the adequacy of statutory protections against the misuse of genetic information. I conclude with a brief discussion of the way in which legislatures should think about building DNA databases for law enforcement now that the Court has issued a construction permit.

1. THE COURT'S REASONING: FREE-FORM BALANCING WITH BLINDERS

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