A Sad Day for the Fourth Amendment

Yesterday, the United States Supreme Court decided the case of Maryland v. King. To recap, King was arrested for the crime of assault. As part of the booking process under Mayland law, anyone arrested for what they define as a “serious crime-” and the crime for which he was arrested fell in that category- must submit a DNA sample obtained from a cheek cell swab. However, the DNA cannot be submitted for testing until the arrestee is arraigned which, in this case, occurred three days after his arrest. The sample was then tranferred to a state lab where it sat until turned over to another lab for analysis. King eventually plea bargained guilty to a lesser assault charge. However, because of analysis of the DNA, it linked him to a previously unsolved rape several years previous. The thrust of the appeal is that the taking of DNA samples without probable cause- the police had absolutely no probable cause to believe King was involved in the earlier rape- was a violation of his Fourth Amendment rights against “unreasonable search and seizure.”

The decision was a closely divided 5-4 decision by the Court with Justice Kennedy writing the majority opinion joined by Chief Justice Roberts and Justices Alito, Thomas and Breyer. The dissent was written by Justice Scalia joined by Justices Sotomayor, Kagan, and Ginsberg. Already, one can see the strange alignment of the Justices. Kennedy’s majority opinion makes great hay about three important points which came up in the briefs and at oral argument. The first is the assertion that the alleged purpose behind the DNA sampling is to make a definitive identification of the person arrested. The second is that the entire process is basically no different than obtaining the fingerprints of anyone arrested. The final point is that the law specifically authorizes DNA sampling of only those arrested for “serious crimes.” The crime in this case was assault where King allegedly brandished a gun at a party.

The first assertion is rather ludicrous. The police knew who they had arrested; there was no doubt that the correct Mr. King had been arrested. In fact, the trial record indicates he readily gave up identification which was confirmed through more traditional methods such as checking against motor vehicle databases. The second assertion is more troublesome and on first thought, one sees the connection. Yet, as Scalia notes in his dissent, even the taking of fingerprints of those accused- not convicted- of a crime has never been addressed by the Supreme Court (and likely never will given this decision) and secondly those fingerprints are clearly for identification purposes. The third argument- “serious crimes”- is open to interpretation and future blurring of the lines through grades of seriousness. What may be “serious” in one state may not be so “serious” in another state.

Ironically, earlier this term, in an unrelated case, they ruled that warrantless extractions of blood samples of those suspected of drunk driving was not permissible in all cases. In that case, a blood sample was taken from an accident victim on the suspicion of drunk driving (he was obviously intoxicated) under the belief that because alcohol is metabolized out of the blood over time, it was essential to obtain the sample at the accident scene. That conviction was overturned because a warrant was not first obtained to get the blood sample. Here we have the case of an obviously intoxicated driving offender being afforded greater Fourth Amendment protections than in the King case. In the Missouri case (the drunk driving case), there was more probable cause- he had alcohol on his breath and open containers in his car- yet a search (the blood sample) without a warrant was deemed unconstitutional.

Scalia’s dissent is classic Antonin Scalia with some great lines that simply shred the majority opinion’s assertion and clearly illustrates what they are: the means justifying the ends. Obviously, King is no poster boy for legal behavior and this writer is all for taking rapists off the streets. This case would be considerably different if there was a single shred of evidence to suggest that King was somehow involved in the earlier rape, yet there was none. The only thing that linked him to that rape was the DNA collected for an arrest for an unrelated crime some ten years after the fact.

Addressing the fingerprint analogy- which is the greatest justification according to the majority- Scalia notes that when fingerprints are taken, they are generally run through a federal database for identification purposes, not a database of fingerprints collected at unsolved crime scenes. It is also important to note, as Scalia does, that taking one’s fingerprints is more akin to taking a picture of someone arrested rather than being akin to determining one’s DNA profile. As he notes, the first thing mentioned as protected in the Fourth Amendment’s prohibition against unreasonable search and seizure is the “person” and what can define the “person” more than one’s DNA and genetic make up?

Scalia details the circumstances under which law enforcement may conduct a warrantless search and comes to the same conclusions opposite than the majority. For example, frisks are perfectly acceptable in order to find weapons and/or contraband/evidence in order to ensure the officer’s safety or, in the case of evidence, incidental to the reason for the detention. Here, the taking of a DNA sample satisfies neither of those criteria. Nor does it satisfy the so-called “exigent circumstances” exception to a warrantless search. If we accept the identification argument, then, as Scalia suggests, perhaps the TSA should obtain DNA samples from anyone who purchases an airline ticket. Surely they have a vested security interest in knowing the identity of airline passengers. But, as Scalia accurately notes, in the end “suspicionless searches are never allowed if their principle end is ordinary crime solving.” If ever a case met that test, it is this one. Again, upon his arrest for assault charges, there was no reason whatsoever to suspect his involvement in a rape years previous. This was “ordinary crime solving,” with warrantless collection of DNA samples being the new ordinary.

The fact that the state of Maryland relies heavily on the identification rationale and which the majority buys is simply torn to shreds by Scalia. He uses the very words of the Governor of Maryland who touted the law as a valuable means to solve cold cases. That is the true reason for the law and hiding behind this veil of other reasons- namely, identification- is ludicrous, or as Scalia bluntly states, “strains the credulity of the credulous.”

Addressing the “serious crime” issue, the majority seems to take solace in the fact that this is specified in the law since, after all, one would not expect the person stopped for not making a complete stop at a “STOP” sign to give up a DNA sample. Or could they? There are cases of people being searched by police for jaywalking, not wearing a seat belt, or- my favorite- the nuns who were searched for protesting. As stated earlier, what may be a “serious” crime in New York may be more “serious” or not serious at all in a neighboring state. Thus, the “seriousness” justification is no protection at all. Regardless, as Scalia noted, there will no doubt be a future case of this very nature where the Court will look back at the King decision as precedent, see no difference, and the traffic stop will become justification to give up some DNA. In effect, he is arguing that they are leaving themselves open to future litigation where they will have to decide the minute details of the word “serious” when it all could have been averted by actually reading the explicit words of the Fourth Amendment. Additionally, there may be some scientific study somewhere down the line that shows a statistical correlation between, for example, a traffic stop and the potential for future or past criminal acts. Do we then expand the definition of seriousness to capture this alleged population? If we cut through the bull, as Scalia suggests, then we should just have a DNA database from birth when anyone is born.

There will no doubt be many a law and order conservative who will laud this decision as being tough on crime and giving law enforcement yet another tool in getting criminals off the street. And DNA analysis is a valuable tool in crime solving provided law enforcement has a suspect for the crime in the first place. However, I fail to see the qualitative difference between this decision and the federal government starting a database of every gun owner and firearm in the United States which I am quite sure these very same law and order conservatives would be against with a vengeance. The Supreme Court seems to have a Utopian view when rendering decisions like this, but Utopia goes the way of the dodo bird since these cases come back to haunt them later when extensions of what they decide today come back in a different guise later. In theory, this decision could be used as precedent and justification for a national gun registry. Hence, any conservative should think long and hard before they laud this decision.

Ironically, this would not even be a case if the state of Maryland had obtained a DNA sample AFTER King plead guilty, His own counsel and that for the state conceded as much. There is a concept, one would hope, in this country where one is innocent until proven guilty be it through a guilty plea in court, a plea bargain, or the findings of a jury. Yes- King is no choir boy and yes, King is likely guilty of the unsolved rape years ago. Even someone caught red-handed by the police is assumed “innocent until proven guilty.” But, because the person is not your best upstanding citizen in no way negates the harm done by this decision. The fact is that had they taken the DNA sample post-conviction, then King would have no case and he could be charged with the earlier rape based on the new evidence assuming it did not fall outside the statute of limitations. Some may say, “What’s the difference?” The difference is that this sets bad precedent and there is a very large difference between someone arrested for a crime and someone convicted of a crime.

An additional “worry” cited by Scalia is that this will overburden even further an already overburdened system. There are an incredible number of unprocessed rape kits sitting in labs throughout the United States as we I write this. Contrary to popular belief and depictions on television, DNA analysis does not come back to law enforcement in a matter of days. It takes several weeks and possibly months, some of it due to the backlog. Regardless, the majority gets around this concern by stating with advancing technology, the whole process MAY take two days at some amorphous, unspecified future date. Yes, and all the criminals in the US will cease killing people if we pass an assault weapon ban and register every firearm in the country. It is that same faulty logic at work here.

Scalia said it best at the end of his dissent when he made the connection between the historical reasons for the Fourth Amendment. When the Constitution was passed, the abuses of the colonial British- especially warrantless searches- was fresh in the minds of people like Thomas Jefferson, Alexander Hamilton, James Madison and Patrick Henry. Scalia wrote:
“Perhaps the construction of such a genetic panopticon is wise. But I doubt the proud men who wrote the charter of our liberties would have been so eager to open their mouths to royal inspection.” Every American, despite the fact that Maryland caught a rapist, should not be afraid of a police state per se. They should be wary of a genetic police state.

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