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

Author:Kaye, David H.
Position:II. Doctrinal Alternatives B. Special Needs Balancing through Conclusion, with footnotes, p. 566-595

    Authentication-identification is a special need. It permits jailers, judges, and prosecutors to know whether an arrestee has a criminal record--not because the record is evidence of guilt in the current case--but because it is relevant to administrative and judicial decisions about the need for and nature of pretrial confinement. This is the purpose given such great weight by the King majority. (172) Having a permanent biometric record serves sundry other interests as well. (173)

    Yet, both Justice Kennedy's majority opinion and Justice Scalia's dissenting opinion stated that King did not fall into the special needs category. Two relatively recent cases created a stumbling block. In these cases, the Court declared the exception inapplicable if criminal evidence collection was the primary purpose of the program of searches. One case, City of Indianapolis v. Edmond, (174) which we encountered in Part I.C, involved road blocks and dogs trained to detect drugs. The other, Ferguson v. City of Charleston, (175) was a program developed by law enforcement authorities at the suggestion of a hospital to test pregnant women's urine for drug metabolites and to use the criminal law to coerce women into drug counseling. (176) However, these cases are distinguishable from King in that the "primary purpose" of ordinary law enforcement--gathering evidence suitable for prosecutions--was their only purpose. The Court has never decided whether the same result should apply when the program truly serves multiple purposes. (177)

    If special needs balancing is available for single purpose searches, it also should be available for multipurpose ones. Consider two search programs that differ only in this regard: Program 1 serves special interests without advancing the ordinary law enforcement interest of producing evidence for criminal investigations and prosecutions; Program 2 serves special interests plus law enforcement interests. Ceteris paribus, Program 2 must be the more reasonable. The government interests are stronger, and the premise that the Framers of the Fourth Amendment already struck the balance in favor of warrants and probable cause applies only when the government has no special interests that merit consideration. (178) Yet, the primary purpose restriction on special needs balancing prevents the Court from upholding Program 2 (when evidence production is the primary purpose) but allows it to uphold Program 1 (because the added benefit to law enforcement was not the primary purpose of the legislature in adopting the program).

    All the Justices in King, however, took the "primary purpose" limitation on special needs balancing as sacrosanct and applicable to multipurpose programs. The majority wrote that "[t]he special needs cases, though in full accord with the result reached here, do not have a direct bearing on the issues presented in this case...." (179) These Justices felt free to balance to determine whether the Maryland law was reasonable because cases within the special needs rubric had engaged in such balancing, as had a few (most notably Samson) that did not qualify as special needs cases. The dissent found the reference to the special needs cases "perplexing," if not disingenuous. (180) This opinion relentlessly hammered away at the fact that the primary purpose of the Maryland statute was to generate evidence with which to apprehend and convict more criminals.

    The King Court's direct balancing sidesteps the primary purpose limitation on creating a new exception to accommodate special interests. But the resulting system, in which the Court takes pains to assure itself of a primary purpose, and then dispenses with the need for such a finding when it does not find one, is complicated and obscure. The Court could have simply narrowed the primary purpose limitation for special needs balancing to a sole purpose limitation. (181) DNA-BC serves multiple purposes, and dropping the assumed primary purpose limitation on balancing in multipurpose search programs therefore would have enabled the Court to balance to determine whether DNA-BC belongs in the category of warrantless searches made permissible by special interests.

    To be sure, even this simplified structure would be far from perfect. What kind of a "rule" has more than twenty not-always-well-defined exceptions? (182) My claim, however, is not that today's PSUWE rule is trouble-free, but only that the King Court would have done better to treat DNA-BC as a multipurpose program eligible for special needs balancing rather than presenting it as a cousin of the special needs cases residing outside the realm of special needs balancing. Along with that shift in perspective, the majority could have undertaken a less contrived balancing to ascertain whether DNA-BC programs--as one facet of a multimodal, multipurpose biometric identification system for custodial arrestees--should emerge as a new exception. Given the majority's understanding of the value of DNA-BC in solving and deterring crime, the special interests it advances in the case of individuals who are under custodial arrest, and its limited intrusiveness as compared to traditional, full-blown searches of persons, houses, papers, and effects, the majority could have more convincingly crafted a new special needs exception rather than creating the same narrow exception implicitly via direct balancing. (183)


    The Court also might have left the broad contours of the PSUWE framework unchanged by creating a broader categorical exception for the acquisition and use of certain biometric data for authentication- and association-identification. (184) The established exceptions to per se unreasonableness for searches for criminal evidence or contraband are based on pragmatic considerations about the practicality of, and need for, a magistrate's review as well as the nature of the infringement on individual interests, such as freedom of movement and the security of one's person and possessions. As with detaining a resident during a search with a warrant (185) or briefly stopping, questioning, and patting down an individual who might be armed and about to commit a robbery, (186) the acquisition of biometric data is a lesser intrusion on Fourth Amendment interests than are custodial arrests or ordinary searches of personal property and dwellings. Therefore, the general judgment that a traditional search or seizure is per se unreasonable in the absence of probable cause or a warrant does not necessarily apply. (187)

    Justice William Brennan stated some of the case for the biometric exception when he wrote for the Court in Davis v. Mississippi (188) that one biometric modality, fingerprinting, "involves none of the probing into an individual's private life and thoughts that marks an interrogation or search.... Furthermore, fingerprinting is an inherently more reliable and effective crime-solving tool than eyewitness identifications or confessions...." (189) Retired Supreme Court Justice John Paul Stevens, in an address delivered on the heels of the King decision, expressed his agreement with the result in King, in part on the theory that inasmuch as "taking a DNA sample reveals no information about the private, non-criminal conduct of the object of the search, ... taking a DNA sample--or a fingerprint sample--involves a far lesser intrusion on an ordinary person's privacy than a search that allows an officer to rummage through private papers." (190) Although the notion of "no information" whatsoever is overstated, (191) trawling crime scene databases for fingerprints or DNA matches has a lesser impact on bona fide Fourth Amendment interests than traditional searches. (192) Consequently, the case for an exception to the per se rule is substantial.

    Although Maryland mentioned this possibility in its petition for review, (193) neither side referred to it again, and the Court did not consider it. This was unfortunate. An exception within the PSUWE framework would have a supplied a sturdier basis for upholding DNA-BC--or alternatively, for explaining why DNA collection and analysis does not qualify for the exception when fingerprinting, photographing, and noting distinguishing features like tattoos do qualify (or are of so little concern to the security of the person and his property as to escape the attention of the Fourth Amendment entirely).

    The Kennedy majority saw no convincing reason to distinguish between DNA on the one hand and the older modalities on the other. In response, Justice Scalia's dissent sought to distinguish the latter three practices from collecting a person's DNA on the grounds that they either are not considered searches or that they are not systematically used to associate an arrested individual with a different (past or future) crime. (194) These distinctions, however, are overdrawn. First, the search/no-search dichotomy in Fourth Amendment law does not differentiate DNA typing from fingerprinting. That is, the threshold question of whether something is a search should not be answered one way when police force an individual to undergo fingerprinting for inclusion in a database and a totally different way when they compel the person to submit a DNA sample for a database profile. (195) Both actions should be considered searches. Furthermore, the search/no-search classification is binary. Two information-gathering practices can be nearly the same in their impact on the individual's Fourth Amendment interests yet wind up on different sides of the dotted line. Merely asserting that one activity is a "search" and another might not be does not establish that they are dramatically different. (196)

    Second, the dissent's claim that fingerprint databases are not systematically used to catch criminals does not reflect current reality. Justice Scalia's evidence to the contrary is based on an obvious misreading of an FBI publication. (197) Latent-print...

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