This is Part One in a two-part series of columns. Part Two in the series will appear here on Justia’s Verdict on Wednesday, March 27. –Ed.
On February 26, the U.S. Supreme Court heard oral argument in Maryland v. King. This case asks a question that has arisen in similar form in the lower courts, and on which I have written before, here. The specific question in King is whether the Maryland DNA Collection Act violates the Fourth Amendment in authorizing the collection of DNA samples from people arrested for crimes of violence, attempted crimes of violence, burglaries, or attempted burglaries. In this column, I will consider the Fourth Amendment significance of DNA collection from arrestees, in light of the government interests and privacy entitlements at stake when a person is taken into custody.
In 2009, police arrested Alonzo Jay King for first- and second-degree assault. Pursuant to Maryland law, his DNA was sampled, because he had been arrested for a crime of violence. Under Maryland regulations, the DNA samples taken were analyzed in accordance with FBI standards and CODIS (Combined DNA Index System) requirements. King was subsequently convicted of second-degree assault. In the meantime, King’s DNA turned up a match in CODIS to a rape committed in 2003. This match provided the sole probable cause for a grand jury indictment, and King was ultimately convicted of the rape and sentenced to life imprisonment without the possibility of parole.
Fingerprints versus DNA
One of the primary points of agreement that emerged during the Supreme Court oral argument in King was that taking fingerprints from arrested suspects is constitutionally valid. Although the lawyer for King complained about his opponent’s failure to offer a theory for why fingerprinting is constitutional, he himself failed to challenge its constitutionality and, in fact, contended that “fingerprinting is not a search” and thus carries no Fourth Amendment requirements. He accordingly drew a solid line between fingerprints and DNA. So what is the difference between them?
One difference, according to King, is that the primary purpose of fingerprinting during the booking process is to identify the suspect, whereas the primary purpose of taking a DNA sample from an arrestee is to help determine whether he was involved in any unsolved crimes from which DNA was collected. A number of Justices appeared to believe that this distinction mattered, but I am not convinced that it should.
To put the best face on King’s argument, it goes as follows: When police perform a search or a seizure in the absence of individualized suspicion or probable cause, there ordinarily must be some “special need” at stake, beyond the ordinary interest in crime control. That is why, for example, the Supreme Court held in Indianapolis v. Edmond that the Fourth Amendment prohibited the creation of a checkpoint, at which all drivers are briefly stopped – and thus “seized”—in the absence of any individualized suspicion, where the primary purpose of the checkpoint was drug interdiction. By contrast, the Supreme Court, in Michigan v. Sitz and Delaware v. Prouse, approved checkpoints whose primary purpose was improving safety on the highway (i.e., checkpoints focused on licensing or sobriety).
Under the rubric of special needs, the Court has approved of such practices as suspicionless visual strip searches of people entering the general population of a detention facility, in Florence v. Board of Chosen Freeholders (based on the need to maintain safety and exclude contraband), a decision I criticized here, as well as frisks of suspects on only reasonable suspicion to believe they are armed and presently dangerous, in Terry v. Ohio (based on the need to protect police officers and public safety). Perhaps most relevant to our case, the Court has also indicated its approval, in Chimel v. California, for the search of a suspect’s person and the immediately accessible area, incident to arrest, even in the absence of any reason at all to suspect that the arrestee is in possession of weapons or evidence (based on the need to address the suspect’s motive to destroy any evidence that might be within reach, and to use any available weapons to try to frustrate the police attempt to take him into custody).
So what is the relevance of this distinction—between ordinary and “special” law enforcement needs—to the distinction between fingerprinting and DNA? It is that when police fingerprint a suspect during the booking process, there is a special law enforcement need at stake, namely, to identify the suspect and figure out whether this person in custody is someone who has previously been convicted of an offense and therefore poses a danger that militates against his release prior to trial. The purpose of taking DNA, in contrast, is mainly to solve cold cases, by matching the suspect’s DNA against a database of DNA taken from prior crime scenes. The desire to solve cold cases seems to serve just the ordinary interest of law enforcement in investigating and solving crimes, unrelated to the “special” fact that this suspect is going into custody.
One problem with the “ordinary” versus “special” framework is that it is not especially coherent. One could, for example, argue that drug trafficking raises a special concern on the nation’s highways, while one can (equally persuasively) argue that driving without a license is just another crime that police investigate and that it should no more receive a “special” status that authorizes mass suspicionless checkpoint stops than should highway drug smuggling. The “special” framework, however, is not up for reconsideration, and I neither expect (nor necessarily want) the Court to junk the ordinary/special distinction, for the consequence could prove to be less protection for privacy, rather than more.
There is, however, another, more significant problem with the “ordinary” versus “special” distinction, when applied to King. This problem is something to which Justice Breyer alluded during oral argument: One needs to apply a fairly narrow definition of what it means to “identify” a suspect before one can conclude that fingerprints assist in such identification while DNA samples do not.
Both sides in the case appear to agree that finding out whether a suspect in custody is a “known criminal” is a legitimate objective, adequate to validate the routine fingerprinting that takes place at booking. Knowing that an arrestee has a record of criminal convictions is relevant to a determination of whether or not to release the suspect. Why is it relevant? Because if a person has previously been convicted of an offense, this increases the likelihood that releasing him prior to trial might endanger the public safety and/or allow him to flee the jurisdiction to avoid trial (and possibly a more severe sentence).
What, however, if a person has previously been involved in a crime for which he was never charged? It seems reasonable to conclude that such a person, if in custody, would both (1) pose an increased risk to the public if released and (2) be more likely to flee the jurisdiction than someone without such a history, given the risk not only of conviction for the offense for which he has now been arrested, but also of prosecution and conviction for the earlier offense. We can thus plausibly describe the use of DNA to determine whether a suspect was involved in an unsolved crime as just as “special” as using fingerprints or DNA to find out about prior convictions.
Consider now the “search incident to arrest” doctrine. Under this doctrine, a police officer may search the suspect’s person and the area within his immediate control, without any basis for suspecting that she will find anything during the search. The rationale, mentioned earlier in this column, is that if the suspect is in possession of weapons or evidence, the arrest situation is one that would increase the ordinary level of motivation for the suspect to destroy that evidence, or to use those weapons to facilitate an escape. In other words, even when we have no reason to believe that the particular suspect is armed or that he is in possession of any evidence, we have special reason to worry about what could happen if he is.
Similarly, we may not have any basis for suspecting that a particular suspect who is under arrest for one crime was also involved in some other, as yet unsolved, crime. In the event, however, that an arrested suspect was involved in an earlier, unsolved crime, we would have greater reason to worry about recidivism than we ordinarily would. After all, a person who commits a single crime may henceforth steer clear of criminal activity, having “learned his lesson”. By contrast, a person who was involved in a past crime, for whom there is also probable cause to suspect another criminal act, has given us reason to consider him a recidivist—someone who is inclined to continue offending.
For such a person, the state interest in solving his crimes and taking him out of commission may accordingly be greater than it would otherwise be. Stated differently, people who are under arrest—if they are armed, if they possess incriminating evidence, or if they have been involved in unsolved criminal activity before—pose special threats that may justify a search to uncover whether they, in fact, are armed; possess incriminating evidence; or have been involved in any unsolved crime in the past. All three of these factors are relevantly linked to the arrest.
Part Two in this series will appear here on Justia’s Verdict on Wednesday, March 27.