Last week, the United States Supreme Court decided the case of Maryland v. King, upholding a Maryland law authorizing the collection of DNA samples from people who are arrested for violent crimes. The respondent, Alonzo King, had challenged the law as a violation of the Fourth Amendment after a DNA test of him matched crime-scene evidence from an unsolved rape (for which King was subsequently convicted). A 5-4 majority of the Supreme Court concluded, however, that the DNA test authorized by Maryland law did not violate King’s Fourth Amendment rights.
I wrote about this case in detail here and here, after the Court heard oral argument, so I invite readers to read parts one and two of that column, and I will not re-analyze the merits extensively here. In this column, I will focus on Justice Scalia’s dissent, in which he wears the mantle of Fourth Amendment protector.
The Court’s Decision and Justice Scalia’s Dissent
To briefly recap some of my earlier analysis, I (and, as it turns out, a majority of the Court) did not consider DNA tests of the sort that King underwent to be significantly different from the fingerprints that are taken as a routine component of booking suspects arrested for crimes. There seems, accordingly, to be very little reason to bar DNA testing, as limited by Maryland’s rules (which, among other things, prohibit the use of the DNA sample to learn about disease or other personal facts, and require disposal of the test results if the person tested is not convicted).
A majority of the Court made three main points in defense of its decision: (1) Those who have been arrested and are being booked enjoy a lesser expectation of privacy than do people generally; (2) Taking a DNA cheek swab is a Fourth Amendment search, but it is a relatively unintrusive one; (3) Thoroughly identifying people in custody—not only by name, but by criminal history as well, which DNA information can facilitate—serves a very important governmental interest. Given the three factors, the Court concluded, the authorized DNA test was justified.
Justice Scalia wrote a dissent on behalf of himself and the three female Justices. He too made three primary points: (1) Until this case, searches aimed at uncovering evidence of crime always had to be based on individualized suspicion; (2) The majority misrepresented the Maryland law, and the DNA-collection for which it provides, when it characterized the searches as aimed at identification, because they are plainly aimed at solving cold cases; (3) Solving crime is important, but the freedom from unreasonable searches and seizures is more important.
The Centrality of Intentions
One might read Justice Scalia’s dissent as manifesting a general respect for privacy (or perhaps, more narrowly, a respect for freedom from unreasonable searches). To read his opinion in this way, however, would evince what Justice John Paul Stevens once aptly termed “constitutional amnesia.” Recall, for example, that Justice Scalia joined a majority of the Court just last term, in Florence v. Board of Chosen Freeholders, in upholding routine, suspicionless strip searches of people arrested prior to their entering a detention facility, a case about which I wrote here and here. In Florence, unlike in King, moreover, the category of people subject to the search policy extended well beyond those who had been arrested for violent or other serious crimes.
What, then, distinguishes the two cases, such that Justice Scalia would join a majority in Florence but castigate the majority in King? It is hardly apparent that a DNA test (which involves a gentle swab of a person’s cheek) intrudes more on personal privacy than a strip search in which people have to “remove their clothing and expose the most private areas of their bodies to close visual inspection as a routine part of the intake process.” Justice Scalia would respond, however, that the distinction lies in the primary purpose (i.e., the intentions) behind the respective searches.
DNA tests—at least under the Maryland law—appear aimed mainly at discovering evidence of crime, while the pre-detention strip searches at issue in Florence were aimed at preventing the flow of weapons and contraband into detention facilities. That is where Justice Scalia’s first point, about requiring individualized suspicion for criminal-evidence-driven searches, comes in. Because the goal of pre-detention strip searches is not ordinary criminal law enforcement, Justice Scalia maintains, the State operates under a less stringent Fourth Amendment duty to base these searches on a reason for suspecting that the person to be searched might actually be in possession of the sought-after materials.
Justice Scalia makes a convincing case about Maryland’s primary intentions. It does appear that Maryland’s goal in enacting DNA-testing protocols for people being arrested and booked was mainly to solve cold cases, rather than to find out who it is they have in custody. As the dissent notes, for example, there would be no reason to delay sending out the collected DNA swabs until arraignment, as the statute requires, if the point were really to provide information to assist in decisions about bail based on earlier criminal activity. But it is fair to ask why the government’s intentions are so important to Justice Scalia.
When Intentions Are Not Important to Justice Scalia
Lest the reader conclude that Justice Scalia consistently cares about governmental intentions in Fourth Amendment cases, note that it was he who wrote the opinion for the Court in Whren v. United States, holding that if police have probable cause to seize a suspect, then the Fourth Amendment is indifferent to the fact that police are plainly stopping the suspect because of his race. Consider what this means. Police may, consistent with the Fourth Amendment, pull over a driver who is going five miles over the speed limit, even though they have no interest whatsoever in the “speeding” (and, in fact, have no intention of legally pursuing the traffic violation), and when their sole motive for the stop is objectively discernible as the driver’s race.
Why? Because, according to Justice Scalia, the Fourth Amendment’s main concern is that searches and seizures in ordinary criminal investigation must be justifiable by reference to objective, individualized suspicion, not that they actually be motivated by that suspicion. And because Maryland’s DNA-testing regime appears chiefly intended to accomplish ordinary criminal investigation, the Fourth Amendment prohibits its doing so in the absence of individualized suspicion, according to Justice Scalia.
The underlying premise is that when police are engaged in ordinary criminal investigation, there is a greater need to protect individuals from potentially oppressive governmental conduct than there is when the government is pursuing some other objective. One problem with drawing this line between criminal-investigation-intentions and other-intentions is that not only are intentions often complicated, but non-criminal-investigation intentions do not always and necessarily reduce the oppressiveness of searches and seizures. In fact, one place where searches are likely to be especially oppressive, regardless of motivation, is in a detention facility, where guards have a degree of power over inmates that is virtually unmatched beyond the jail’s walls. One might expect, then, that when people are about to enter a jail, Justice Scalia would be especially interested in scrutinizing the fit between routine intrusions visited upon arrestees, and the objectives sought. Yet he is not.
In the context of strip searches of arrestees (for even minor offenses) about to enter the jail population, the Court—with Justice Scalia’s blessing—says that weapons and contraband often make their way into jails, so it is important to do what it takes to address that problem. As I understand it from colleagues who are more familiar than I am with what goes on inside prisons, however, it is often the guards, rather than the prisoners, who smuggle in weapons and contraband, which may help explain why routine prisoner strip-search policies appear to have little impact on the prevalence of weapons and contraband inside jail and prison walls, a point made by the Florence dissent. To the extent that strip searches do not serve the interest in keeping contraband and weapons out of jail, however, the performance of such searches in the absence of individualized suspicion would appear to constitute the very definition of an “unreasonable,” and thus unconstitutional, search.
Accordingly, there is nothing inherent in the different sorts of intentions that drive routine, suspicionless searches that should subject some such searches to deference, while other such searches are absolutely prohibited. Unlike Justice Scalia, the majority in King, to its credit, takes into account the intrusiveness of the search at issue as well here, rather than focusing exclusively on the intentions behind it.
In crafting his outraged dissent from King, Justice Scalia does a few noteworthy things. First, he makes a point of saying that “this Act [the Maryland law under review] manages to burden uniquely the sole group for whom the Fourth Amendment’s protections ought to be most jealously guarded: people who are innocent of the State’s accusations.” This unique burden falls on the innocent, according to Justice Scalia, because people who are ultimately convicted of criminal offenses are already subject to DNA-testing, so the Maryland statute serves only to add to the roll of tested convicts the people who ultimately would not be convicted.
This may initially sound like a convincing argument, but take a second glance. As Justice Scalia well knows, people who are, in fact, guilty of an offense sometimes nonetheless avoid conviction (whether through acquittal or through non-prosecution). More importantly, a person may, in fact, be guilty of an earlier, unknown crime (such as King’s rape) but not guilty (or not demonstrably guilty) of the crime for which he was arrested, the crime forming the predicate for the DNA test. Such guilty people would be caught only under a regime in which those who have been arrested but not yet convicted could nonetheless be DNA-tested.
Another problem with Justice Scalia’s “innocence” argument is that the DNA test is, in itself, relatively minor for innocent people unconnected to any criminal offense, while the information that it discloses is tremendously and disproportionately burdensome for people guilty of earlier crimes. A strip search, by contrast, is greatly invasive to everyone subjected to it, no matter how innocent he or she may be.
Justice Scalia warns us: “Make no mistake about it: As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.” But if we are not convicted, our DNA will have to be removed from the database, pursuant to the Maryland law approved by the Court. And under the same Maryland law, DNA would be taken only when an arrest is for a serious crime, not “for whatever reason,” which is, incidentally, when a strip search of an arrestee about to enter a facility is permissible, according to the Supreme Court’s opinion, joined by Justice Scalia, last term.
Second, Justice Scalia joins three Justices in dissent who happened also to have dissented from Florence, the strip-search decision. In other words, his allies in dissent can far more plausibly claim to be sincerely concerned about Fourth Amendment invasions of privacy, whereas he—in a case far more threatening to the privacy of innocent people—joined the majority in rejecting privacy.
Apart from Justice Scalia, only Justice Breyer switched sides between Florence and King. Justice Breyer joined the dissent in Florence and the majority in King. But one who is concerned about the degree of privacy invasion, and about the impact of a search policy on innocent people, could reasonably think (as, for example, I do) that Florence was an outrageous decision, while King was correctly decided. It is much more difficult to identify a compelling principle behind Justice Scalia’s preferences, preferences that invoke the “proud men who wrote the charter of our liberties” and express doubts that those men “would have been so eager to open their mouths for royal inspection,” while simultaneously approving of policies that force all arrestees who are taken to jail to display far more private orifices for such inspection. This is especially striking given that strip searches rarely uncover contraband or weapons, and the DNA tests authorized in Maryland, as Justice Scalia acknowledges, will “have the beneficial effect of solving more crimes.” Less intrusive, more effective, and limited to those arrested for serious crimes, the DNA tests approved in King are far more defensible than the strip searches about which Justice Scalia, Fourth Amendment champion, has no Fourth Amendment misgivings.
Can’t one reconcile Scalia’s joining the majority in Florence with his dissent in King as follows:
Scalia’s primary focus when it comes to Fourth Amendment reasonableness determinations is on the objectively assessed purpose of the challenged government conduct, instead of the degree of the intrusion on the defendant’s reasonable expectation of privacy. So, for example, in Florence he was convinced that the objectively assessed purpose of strip-searching everyone being detained at the jail was to ensure that contraband does not enter the jail, and not to gather evidence for use in a subsequent prosecution. But, in King, his objective assessment of the facts, including the statements of the legislators who enacted Maryland’s arrestee DNA law (i.e., their subjective purpose), was to link arrestees to unsolved cold cases and, thus, build a criminal case against them. In both cases, the degree of intrusiveness took a back seat, under Scalia’s method of reasonableness balancing, to the true (objectively assessed) intent/purpose motivating the challenged government conduct.
If the Court is going to engage in totality of the circumstances balancing of interests in order to determine if a particular search or seizure is reasonable or not, including objectively determining the degree of intrusion and the government’s justification, isn’t Scalia entitled to place the greatest emphasis upon the reason that the government is doing something, and a lesser focus or concern for the level of intrusion?
The majority in King did itself a disservice by not openly admitting that the sole purpose behind arrestee DNA laws is to link arrestees to unsolved cold cases. They should have plainly stated that. And then plainly stated that doing so is entirely reasonable under the Fourth Amendment, because it will protect people’s lives, deter future crimes, and possibly exonerate wrongly charged defendants, while being minimally intrusive — no more intrusive than fingerprinting. By throwing everything up and hoping something stuck, the majority gave Scalia the opportunity to destroy the majority’s reasoning and logic piece-by-piece.
I disagree with your inference that Scalia’s previous decision would allow the DNA search. As much as I want rapist and criminals caught it is a fishing trip that allows law enforcement to use a method to catch a criminal that invades our privacy which the Constitution forbids. To say it’s the same as his having allowed strip searches of those who choose to visit a prison of previously convicted persons to assure the safety of those inside or out from receiving constraband is a very distant stretch. If they don’t want to be strip searched then they don’t visit, they have a choice but if I should be in an accident and they wanted to take my DNA although I have never been involved in a crime I would never have assurance it was destroyed.
I have a question about the missing reason that you do not provide for the majority of the decision. I recognize the truth that the buccal swab is not intrusive. However, you did not mention the primary reason. The primary reason is that the taking and analyzing of DNA before conviction is akin to fingerprinting and photographing. The difference is that DNA is more reliable, but takes a longer period of time, but this is only a question of efficiency not constitutionality. Moreover, fingerprinting was not a fast procedure until the late 1900’s, thus DNA will become a fast procedure when the time will come.