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That pesky Fourth Amendment

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My public defender’s office handles a lot of interesting cases. One of the most notable to come out of my office in recent years was Maryland v. King, which involved a challenge to a state law that permits the police to obtain a DNA sample of all people arrested for a crime, before any conviction and without the need for any belief that the DNA was relevant to the crime the arrestee was detained for. DNA sampling was thus just another routine booking procedure like fingerprinting, but DNA tests were used in this fashion almost exclusively to check “cold case” databases to see if the arrestee had been involved in other crimes.

Police could already get a warrant for a compelled DNA test if they had probable cause to believe the suspect’s DNA would reveal evidence of a specific crime (e.g., a rape case where semen was found), but this was the first law that allowed police to collect DNA as a routine matter, without any needed connection to a crime. The law was challenged in court on Fourth Amendment grounds in King when a compelled DNA test revealed a connection by King to a crime unrelated to the one he was arrested for. The law was all-but invalided by the Maryland Court of Appeals, and the State appealed to the US Supreme Court, which delivered its opinion today.

Legal details and mumbo jumbo…
SCOTUS reversed the Maryland courts and held up the DNA collection law in its entirety, based on flimsy logic and transparent rationalizations. The central basis the majority used to uphold the law was its analogy to routine booking procedures (such as fingerprinting), and the State’s interest in identifying suspects. But as Scalia’s blistering dissent points out, DNA testing in this context is not at all like fingerprinting (which itself has not been explicitly condoned under the Fourth Amendment), because it is not used to identify, but to investigate other crimes.

Fingerprints are a classic and powerful IDing tool. You get a suspect’s fingerprints, and you can run it through a database to get a name and certain criminal histories within minutes. Regardless of whether warrantless, suspicionless fingerprinting should be allowed under the Fourth Amendment, it is indisputably a very useful tool for law enforcement, as it is a quick, efficient, and cost-effective way of proving identities. Fingerprinting may also help solve a previously unsolved case, such as if a suspect left a fingerprint at another crime before he had a criminal history, but that is an incidental effect from its primary purpose.

On the other hand, DNA testing takes weeks, long after the identity of a suspect has almost certainly been proven through other means, and is much more expensive. The databases that house DNA profiles are not meant to identify the person behind the samples, but to compare to other samples collected in unsolved “cold cases” where DNA was collected at the scene. Thus, an explicit purpose of Maryland’s DNA law was as an investigative tool for law enforcement to solve crimes, not to ID suspects (for which it is not efficient or cost-effective) – and notably, identifying suspects is not even mentioned in the law. The Court majority, lead by Kennedy, ignored all of this, and instead appeared to apply a vapid, superficial understanding of DNA tests gleaned from watching an episode of CSI, and an understanding of the Maryland law taken from an editorial on Fox News.

Kennedy claimed that DNA testing serves four different identification purposes: 1) IDing arrestees so cops know who they’re dealing with; 2) Obtaining a criminal history so jails know who they’re dealing with; 3) Ensuring people show up for trials, so higher bails can be set for people connected to past crimes; and 4) Obtaining accurate criminal histories for purposes of setting an appropriate bail. None of these make the slightest bit of sense, unless post-arrest we eliminate the possibility of bail for weeks/months until DNA testing is completed.

This only makes sense if you have a juvenile understanding of both DNA testing and criminal procedure – which is disturbingly common from appellate judges without any trial-level criminal experience. Bail reviews happen almost immediately after an arrest where charges are filed; in Maryland, an arrestee is taken before a commissioner within hours for a preliminary bond, with a right to a bond review before a judge the next business day. A suspect’s fingerprints and DNA would have been taken within a day or two, and so DNA results would not have been back yet. Again, this only makes sense if we start denying bail to everyone before DNA testing is complete.

And guess what? Even if that were permissible, it’s entirely unnecessary. Because fingerprints already uncover any criminal history. I have represented clients at over a hundred bail review hearings (in Maryland, unlike most states, you have a right to counsel at them by statute), frequently conducted just the day after arrest, and by that time the court already knows the defendant’s criminal history.

For this proposition, the Court cites a couple of state-funded studies over a period of 8 years and covering areas from 3 states and finds… a handful of examples where DNA testing would have revealed more of a suspect’s violent past than was known at the time when they were released on bail, and then went on to commit other crimes. Of course, the Court doesn’t mention whether DNA testing would have actually made any difference in those cases, because it almost certainly wouldn’t have.

Kennedy seemed to try to limit the ridiculous holding based on the qualification that the crime for which the suspect was arrested must be a “serious offense.” See, e.g., “When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.” No explanation exists for what a “serious offense” is, and it will be interesting to see how much, if any, meaning that qualification is given in the future.

And the worst part is? The Maryland Court of Appeals decision agreed that using DNA testing for IDing purposes was in accordance with the Fourth Amendment, and refused to strike down the law entirely. But unlike SCOTUS, the Maryland court actually looked at the law in question, how DNA testing is really done, and why King’s DNA was taken in this case and concluded that Maryland’s law was unconstitutional when utilized for purely investigative, non-identification-based purposes. The Court of Appeals allowed for the remote, potentially unprecedented, possibility of when DNA might actually be needed for identification purposes, such as if fingerprints are altered/destroyed. If the Supreme Court actually bought its own bulltrout, the state opinion would have been affirmed. But the identification nonsense was just transparent, nonsensical rationalizations to get to the desired outcome.

Justice Scalia wrote a strong dissent that ripped apart the majority opinion, mostly for the grounds I already stated. He also pointed out that the Maryland law and DNA testing procedure in question effectively eliminates any possibility that it could be used for identification, for a variety of reasons:

• The law prohibits testing a suspect’s DNA before the first scheduled arraignment date, which is necessarily after any arrest or bail review hearing.
• The DNA database hit linking King to the unrelated previous crime was not discovered until four months after King’s arrest.
• It is not even regularly possible to ID a suspect from a profile based on the FBI collective database, because it only has two sets of profiles: samples from known convicts/suspects, and samples from unsolved crime scenes. Even the known convicts/suspects database does not contain identifying information beyond the DNA profile, because law enforcement is already expected to know that through other means.
• Most devastatingly, Maryland’s DNA law gives a list of exclusive, permitted reasons to collect compelled DNA samples, including to solve cold cases, and none of them involve identifying currently arrested suspects.

This oblivious misunderstanding of the Maryland law at issue in this case led to Scalia’s caustic snipe that “I hope the Maryland officials who read the Court’s opinion do not take it seriously,” because acting in accordance to it would actually result in jail time, as Maryland strictly proscribes any compelled testing of DNA outside of its strict procedures.

But this case was somewhat notable for another reason: a 5-4 split, but not down so-called party lines. Breyer (“liberal”) and Kennedy (conservative-leaning “moderate”) were in the majority upholding the DNA law, with Scalia (unapologetic arch-conservative) leading the remaining liberals in dissent. Breyer is one of the worst Justices on the Court (second only to Alito), and is by far the most wishy-washy. He would permit the police to do a wide range of things as long as he felt like the conduct wasn’t too bad, or if it was only to really bad people (I suspect Kennedy referred only to “serious offenses” to keep Breyer in the majority). Scalia, on the other hand, is terrible on some issues, but great when there’s a clear constitutional mandate: the Fourth Amendment requires warrants for searches for routine investigatory purposes (such as “who committed this rape where we only have a semen sample”), and thus a warrant is required. End of story.

The opinion in Maryland v. King was not only blatantly wrong, but its reasoning embarrassingly bad. It also highlighted (again) what an unprincipled hack Breyer is (the most blatant example of which was when he voted that one courthouse’s display of the Tenth Amendments was constitutional and another was unconstitutional, despite every other Justice on the Court recognizing that there was no meaningful distinction between the two cases). Even Kagan has been better than him on the liberal side, and she was a former prosecutor and Obama shill Solicitor General. But most of all, I’m concerned about what happens to the Fourth Amendment when Scalia retires, and the Court potentially loses from the conservative side its one consistently sane voice.

Updated 06-04-2013 at 03:35 AM by Raistlin

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  1. fire_of_avalon's Avatar
    I dunno what's more disturbing: the opinion of the court in this case or the fact that I agree with Scalia about... anything.
  2. Raistlin's Avatar
    Haha, I could find plenty more Scalia opinions you agree with. He's pretty good on most free speech and Fourth Amendment issues, as well as being the biggest advocate on the Court for criminal defendants' confrontation rights. His opinion in Brown v. EMA is also worth a read, where the Court struck down a California law that prohibited the sale of violent video games to children (Breyer also dissented from that one, because he's a moron).

    Additionally, Scalia was apparently so upset at this ruling that he read his dissent aloud, which is highly unusual (a summary of the majority opinion is generally read aloud, but that's it). Scalia added some more biting commentary during that oral statement:

    It may be wise, as the court obviously believes, to make the Leviathan all-seeing, so that he may protect us all the better. But the proud men who wrote the charter of our liberties would not have been so eager to open their mouths for royal inspection. I dissent.