The Fourth Amendment And Your DNA – Any Limits?

On behalf of The Marks Law Firm, L.L.C. posted in Criminal Law on Thursday, June 6, 2013

The Supreme Court decided one of the most important and far-reaching Fourth Amendment cases in quite some time on Monday, holding by a 5-4 majority in Maryland v. King that the Fourth Amendment does not prohibit a state from taking a DNA swab of every person arrested for a “serious offense” for the purpose of confirming the identity of the arrestee. The majority held: “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.”

We need to unpack the decision and its reasoning to understand its rather breathtaking and foreboding scope, and appreciate how it has changed criminal law forever for the worse.

The Fourth Amendment prohibits the police from searching a person or his effects without a warrant supported by probable cause. While some cases have created exceptions to the warrant requirement for “exigent circumstances,” such as to avoid the immediate destruction of evidence (the notorious “drug flush”), those still remain the exception rather than the rule, and even in those situations, the police must still have probable cause to believe the person has committed a crime.

Over the years the Supreme Court has recognized two types of searches – investigative searches, which by their nature seek to recover evidence for use in a criminal proceeding, and administrative searches, which seek to ensure public safety. Administrative searches range from surprise searches at a restaurant to determine compliance with health regulations to airport security screening bags for weapons. The distinction between the two types of searches is important, and the failure to see the difference between the two plays a critical role in the outcome of the DNA case.

Alonzo King was arrested for assault and taken into police custody. Pursuant to a Maryland statute, when he arrived at the police station, an officer took a cheek swab of King for the purpose of securing a DNA sample that could be run through several databases. Several months after his arrest, the police finally got around to running that DNA sample and, lo and behold, King’s DNA matched that of the perpetrator of an unsolved rape case some five years earlier. Based on the DNA match, the police charged King for that rape. King sought to suppress the DNA evidence as the product of an unconstitutional search.

Justice Kennedy wrote for the majority, which also included Chief Justice Roberts and Justices Thomas, Breyer and Alito. Justice Kennedy did not dispute that the cheek swab constituted a search and seizure under the Fourth Amendment; the only issue would be whether it was reasonable. He noted that the reasonableness inquiry usually involves some form of individualized suspicion, notably absent in this case, but that the Court has recognized “special needs” cases where the Court approved searches without individualized suspicion, from airport searches to sobriety checkpoints to random drug testing of high school students and air traffic controllers. All of these “special needs” cases involve administrative searches undertaken not for the purpose of uncovering evidence of crime but rather to safeguard the general public. We should note that these “special needs” searches were hardly uncontroversial at the time of decision and usually involved a closely divided Court.

Justice Kennedy described the intrusion on the person of the cheek swab as negligible considering the Court had previously sanctioned taking a blood sample as recently as two months ago for an individual suspected of driving under the influence. The minimal intrusion would need to be balanced against the governmental purpose and the reasonable expectation of privacy of an arrestee. It is at this point that the logic of the opinion seems to stretch very thin, if not snap entirely. Basically, Justice Kennedy analogized the DNA sample to fingerprinting, as both allow police to make a definitive identification of the suspect, including any aliases, and determine his true criminal history so that information would be available with regard to current dangerousness and whether the individual should be eligible for bail. However, DNA cannot process fast enough so that all of this information will be ready before the police put the suspect into a jail population or arraign him and hold a bail hearing. The Court assumes the rapid development of the technology will make this possible, but today, it is not possible. So the very basis of the search – quick identification – is bogus.

Justice Scalia authored a thorough and impassioned dissent, joined by Justices Ginsburg, Sotomayor and Kagan. He described the taking of the DNA sample from arrestees as akin to a general warrant from the Revolutionary era – warrants issued to allow officers to rummage through persons and property with no cause and no suspicion – the very type of warrants that birthed the Fourth Amendment. He noted that the identification aspect of DNA is really a pretext, because in this case it took 88 days to process the DNA, long after arraignment and bail proceedings. Further, he stressed that “suspicionless searches are never allowed if their principal end is ordinary crimesolving. A search incident to arrest either serves other ends (such as officer safety, in a search for weapons) or is not suspicionless (as when there is reason to believe the arrestee possesses evidence relevant to the crime of arrest).”

In Part II, we will discuss further troubling ramifications of this decision that went unnoticed by the dissent, and also where this jurisprudential train got way off track – the inventory search.

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

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