Embracing DNA Collection as a Routine Booking Procedure

JURIST Guest Columnists William C. Sammons and Lydia S. Hu of Tydings & Rosenberg LLP argue that the US Supreme Court's decision in Maryland v. King correctly furthered the state's interest in solving crimes through the use of DNA...

Garnering much national attention in what was described by Justice Alito at oral argument as the "most important criminal procedure case that [the Supreme Court] has heard in decades," the Supreme Court held in a 5-4 decision [PDF] that police may collect DNA samples from arrestees of serious crimes, as a "reasonable" search under the Fourth Amendment. Unlike many close decisions by the Court, the alignment of Justices on each side of the issue did not fall into predictable "conservative" and "liberal" camps. Justice Kennedy, appointed during the Reagan administration, authored the majority opinion that was joined by Chief Justice Roberts, a George W. Bush appointee, Justice Breyer, a Clinton appointee, and Justices Thomas and Alito, appointees of George H. W. Bush and George W. Bush, respectively. The dissent was authored by Justice Scalia, a Reagan appointee, known for his sharp critiques — he criticized the majority for issuing a "vast" and "scary" opinion that "taxes the credulity of the credulous" — and was joined by Justice Ginsburg, a Clinton appointee, and Justices Sotomayor and Kagan, both Obama appointees.

The divided Court, and the unusual alignment of justices, are indicative of the difficulties involved in balancing the interests of the state against the privacy rights of individuals, as required by Fourth Amendment jurisprudence. At issue in King was whether the Maryland's need to properly "identify" those arrested for serious crimes (which all justices agreed was a compelling interest) justified the DNA collection in light of the fact that the DNA was also used to solve other (non-arrest) crimes, including "cold cases," by matching an arrestee's DNA to DNA in state databases collected from crime victims — which are often victims of sexual assaults. The majority held the state's interest in "identification" outweighed any privacy concerns and justified the collection; the dissent argued that the "identification" rationale was a subterfuge, and that the real purpose for which the DNA was used was to solve other crimes, a constitutionally impermissible rationale, in the dissent's view.

Alonzo King was arrested in Maryland for assault in 2009. His DNA was collected and placed into an "arrestee" DNA database under a then-new Maryland statute [PDF] permitting such collection. His DNA was then compared against a database containing DNA collected from crime victims, resulting in a "hit" with DNA collected from a woman who had been raped in Maryland six years earlier. King was charged with that rape and later convicted; the DNA match was the only substantial evidence against him. The Court of Appeals of Maryland overturned [PDF] the conviction and the statute, ruling that DNA collection from arrestees (as opposed to those convicted of crimes, whose DNA collection had already withstood constitutional scrutiny) was an unreasonable search under the Fourth Amendment. The Supreme Court granted certiorari, reversed the Maryland court, reinstated the conviction and upheld the Maryland statute.

The compulsory extraction of DNA is considered to be a "search" and therefore subject to Fourth Amendment strictures. The DNA collection from King was accomplished by rubbing a cotton swab on the inside of his cheek, and that search was "warrantless," in that at the time of the King's arrest on the assault charge there was no warrant sought or obtained for the collection of his DNA. The police relied only on the Maryland statute. Under prior precedent, warrantless searches are constitutionally permissible, but they must first pass a reasonableness test in which the interests of the state are balanced against the individual's legitimate expectation of privacy. The King majority applied that test, starting with an analysis of the state's interests. It relied principally on the state's need to have a prompt and precise identification of the arrestee. As the majority explained, identification was necessary to make sure the person was who he purported to be (name, address, and the like) but also to check the arrestee's criminal history to assess risks to prison staff and inmates, to make bail decisions and to determine "whether he is wanted elsewhere and [to] ensur[e] identification in the event he flees prosecution." Having itemized the state's interests, the majority weighed them against the privacy rights of the individual — the intrusiveness of the collection process and King's reasonable expectation of privacy in his DNA. Both were deemed minimal in King's circumstance, considering that the cheek-swabbing was not intrusive compared to other court-approved searches and that King's privacy expectations were greatly diminished by the fact of his arrest, which had been based on probable cause. The balance tipped in favor of the state.

The majority's discussion of the state's interests did not expressly address the state's interest in determining whether the arrestee could be tied to other, unsolved, crimes — that is, a "solving crimes" function. Nonetheless, Justice Scalia's strong dissent argued the majority's "identification" justification was a ruse (DNA collection from arrestees "has nothing to do with identifying them") and, citing actual practice as reflected in the record and language of the statute itself, asserted that the principal, if not only, reason for DNA collection is investigating and solving of non-arrest crimes. The problem with using the DNA for crime solving, according to the dissent, is that it makes the search not only warrantless but also "suspicionless," considering that there is no thought or suspicion tying the arrestee to the unsolved crime. That, according to the dissent, runs contrary to the original intent of the Fourth Amendment, which anticipated the need for individual suspicion and thus, was improper. Crime solving, according to the dissent "is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches."

The irony of both the majority's failure to identify "solving crimes" as one of the state's interests in the balancing test and of Justice Scalia's scathing dismissal of "solving crimes" as a legitimate consideration is that neither addressed the fact that most cases — such as Haskell v. Harris and United States v. Mitchell — in the lower courts addressing DNA collection, including the Maryland court in King, had expressly stated that solving (other) crimes is a legitimate state interest that should be considered in any balancing test. It is true that some courts had concluded that the interest should not weigh heavily in the balance for reasons similar to those articulated by Justice Scalia. However, even those cases agree that the interest is a legitimate one and should be considered. The issue was not discussed in the King majority, and Justice Scalia's strong objection to it went unanswered.

The use of DNA in solving crimes, and the legitimacy of that interest in any balancing test, are particularly important to crime victims and to organizations that represent victims' rights. Indeed, the briefing in King included several amicus briefs filed by thirty-nine victim rights groups and related organizations, all centering on the sea-change in law enforcement brought about by the crime-solving feature of DNA collection, including collection from arrestees. To those organizations and their constituents, the crime solving utility of DNA collection is not only a factor to consider but a compelling rationale. Indeed, even if "identification" is considered to be the touchstone for the constitutional analysis, the matching of arrestee DNA with victim DNA is, itself, a part of the "identification" process because that identification implicates public, not private, issues. What an arrestee "has done" in the past is not private to the arrestee but, rather, is public to the extreme. When DNA is placed in the victims' database after a rape or other sexual assault, for instance, the creator of that DNA (the perpetrator) has done something very public — sexually assaulted a member of the public. The DNA left at the crime scene is abandoned and available to everyone, including law enforcement, who wishes to collect it. Moreover, the victim/survivor in each case has also done something very public, and difficult — reported the assault to public officials, submitting him or herself to the degrading process of DNA "collection." This includes the opening of body orifices to intrusive medical instruments and documenting the private and humiliating experiences with photographs and other records, all for the sake of evidence collection. If that DNA collection could not be used for crime solving, then those victims have been short-changed.

Central to the dissent's point on crime solving was that it must give way to the privacy rights of the arrestee (which are higher on the "pantheon of noble objectives"). However, to suggest the privacy interests of arrestees' necessarily outweigh the interests of these victim/survivors is to ignore the reality of the public nature of all of the activities at issue — the original crime and its aftermath. The Fourth Circuit recognized this interest in writing about fingerprinting.

[W]hen a suspect is arrested upon probable cause, his identification becomes a matter of legitimate state interest and he can hardly claim privacy in it. We accept this proposition because the identification of suspects is relevant not only to solving the crime for which the suspect is arrested, but also for maintaining a permanent record to solve other past and future crimes.

The fingerprinting analogy was a central focus of the majority opinion, and a point of contention for the dissent. It, too, implicates the "crime solving" rationale. The majority compared collection of DNA to fingerprint collection and analysis, a generally accepted police protocol, explaining that DNA collection and analysis is no different than matching fingerprints to crime scenes of unsolved cases. Learning what other crimes the arrestee has committed through DNA matches, or fingerprint matches, furthers police efforts to identify the individual, ensure the safety of the staff and protect the public. In this regard there is little difference between the two forms of identification.

The dissent attacks the majority's analogy of fingerprinting, even suggesting that the generally accepted police protocol of fingerprinting arrestees has never been analyzed under modern Fourth Amendment jurisprudence. The real point of the dissent seems to be that fingerprints are used "primarily to identify" the arrestee — and not for crime solving — so that the practice is not an unconstitutional suspicionless search. The dissent concedes fingerprint collection "sometimes solves crimes," and several cases below had observed that the solving crimes use of fingerprinting is no different from the DNA use. It seems, then, that fingerprinting is more analogous to DNA collection than the dissent gives credit. The acknowledgment that fingerprinting solves crimes, even "sometimes," also underscores that the majority ruled correctly — that DNA is a legitimate part of routine booking procedure that is reasonable under the Fourth Amendment, like fingerprinting and photographing, only more accurate.

Like fingerprinting, and its predecessor technologies (such as Bertillon identification and photography), DNA collection is but the most recent advance in the identification of criminal suspects. As the King majority observed, it is so far superior that to "insist on fingerprinting as the norm would make little sense" to experts or laymen. The fact that DNA may also be superior to fingerprinting for solving other crimes is not a reason to reject it but, rather, to embrace it. The King decision moves that ball forward and, thereby, may well live up to its advanced billing as the most important Fourth Amendment case to come before the Court in years.

Mr. Sammons and Ms. Hu are a partner and an associate, respectively, in the Baltimore, Maryland law firm of Tydings & Rosenberg LLP, a regional firm with a diverse business and litigation practice.

Mr. Sammons has practiced with the firm for more than 40 years with a concentration on business litigation, including employment, antitrust, business torts, corporate governance, real estate, and construction matters. He has been recognized by Best Lawyers, Benchmark Litigation, Maryland Super Lawyers, and the Baltimore Business Journal for his litigation practice.

Ms. Hu is an associate in the firm's litigation department, where she assists clients with their commercial litigation needs, including insurance defense, products liability, and business torts. Ms. Hu is a member of the Maryland State Bar Association, the Executive Committee of the Maryland Defense Counsel, and the Women in the Law and Young Lawyers Committees of the Defense Research Institute.

Mr. Sammons and Ms. Hu were authors of an amicus brief filed with the Supreme Court of the United States in the King case on behalf of several sexual-assault victims' rights groups, as a part of the firm's pro bono activities.

Suggested citation: William C. Sammons and Lydia S. Hu Embracing DNA Collection as a Routine Booking Procedure, JURIST - Sidebar, July 11, 2013, http://jurist.org/sidebar/2013/07/sammons-hu-routine-booking-procedure.php.

This article was prepared for publication by John Paul Regan, an Associate Editor with JURIST's Professional Commentary Service. Please direct any questions or comments to him at professionalcommentary@jurist.org


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