The Fourth Amendment And Your DNA – Any Limits? – Part II

On behalf of The Marks Law Firm, L.L.C. posted in Criminal Law on Friday, June 7, 2013

In Part I of our discussion of Maryland v. King, we summarized the holding, its questionable reasoning and the good points of the dissent. In this post, we want to explore issues left unexplored by the majority and even the dissent, and what should be done to fix some very bad law.

The scope of the search may seem limited by reading the majority opinion, which tries to qualify its holding as only for arrests for “serious offenses.” But, as Justice Scalia notes, the Court never defines a “serious offense,” and the logic (twisted as it is) that supports collecting identification information would be just as relevant for a traffic citation as a homicide arrest.

The Court has been down this very disturbing “bootstrap” path before, with regard to searches and cars. The Court held almost a century ago that cars pose a special danger because, well, they move and do so at a fast pace, which would lead to escape. Based on the special circumstance of the movable nature of a car and that we drive them on public roads, the Court approved of warrantless searches incident to arrests in a car, searches that eventually led to the ability to search closed containers in cars. Another creature from cars has been the inventory search – a search designed to protect the suspect’s property after arrest, but really just another excuse to search for evidence. If the police impound your car, say for driving without a license or driving while under the influence, they will impound your car. And to make sure they do not steal any of your property, they will search it tip to toe and write up a list of belongings…including all contraband. So, a traffic stop for speeding could lead to driving with an expired licensed to an impoundment to discovery of drugs to a conviction, all without any suspicion of anything more than speeding, and certainly nothing to do with drugs. This should sound very familiar – the same “special needs” logic that undergirds King is the same basis for the inventory search, only with more potential for evil.

The most disturbing part of the majority opinion is in the evaluation of the reasonable expectation of privacy of an arrestee: “Once an individual has been arrested on probable cause for a dangerous offense that may require detention before trial…his or her expectations of privacy and freedom from police scrutiny are reduced. DNA identification like that at issue here thus does not require consideration of any unique needs that would be required to justify searching the average citizen.” A suspect, once arrested, is still a suspect, innocent until proven guilty. However, one would not recognize this from this reasoning of the Court. If an arrest can justify fingerprinting, strip searches, body cavity searches, uniform clothing and other concessions for safety in detention, so reasons the Court, police can begin to take DNA swabs as well. One can see the slippery slope that the Court perhaps did not see, did not care to see or saw but did not want to admit: police can make intrusions into the person of a suspect to retrieve personal identity information to use to discover evidence that will help convict that person. In essence, the Court stepped right over the most basic fact about DNA – it is by its nature the most identifiable evidence of ourselves we know and possess, and if we do not allow confessions that do not comply with procedures that would taint the confession, how can we ignore the most basic elements of fairness with an even more damning and incriminating form of evidence? The Fourth Amendment ruling in King creates a watershed moment in Fifth Amendment law, because King was convicted of rape principally if not solely by DNA evidence extracted from him by the state that incriminated him, evidence taken without probable cause and without even a hint of a reason to suspect King committed the crime.

So, following the logic of the inventory searches, it seems that in the not too distant future we could have traffic stops that lead to a DNA swab that lead to discovering all forms of evidence that will solve hot and cold cases linked by one common bond – absolutely no suspicion prior to the taking of the DNA swab. Almost all of us have been or will be stopped by police for traffic inquiries; if the swabbing continues, the police will have everyone’s DNA, which it can match to its database of hot and cold cases and increase its rate of solving cases. We will as a society find the culprit in a higher percentage of crimes of all varieties – but at what cost? The Court has laid the groundwork for a national DNA database that will exclude only those who do not drive or who never get stopped by the police, all without suspecting any victim of a swab of even looking the wrong way at a police officer, let alone the actual basis for search in the Fourth Amendment, probable cause.

It remains to be seen what this decision will do. It could lead to the path described above, or the Court could reverse its course realizing the havoc unleashed. It has done so before on rare occasions; it could do so again.

The upshot for now of the decision? Be afraid…be very afraid.

If you have questions about DNA evidence or the Fourth Amendment, contact us – we can help.

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