Supreme Court Upholds Taking DNA Upon Arrest

Yesterday the Supreme Court decided a case that one Justice called “perhaps the most important criminal procedure case that this Court has heard in decades.” A bare majority of the Court ruled that the police may take DNA from those arrested for, but not yet convicted of, “serious offense[s].” The case resolves a deep split among the lower courts; mostly resolves the constitutionality of the DNA-on-arrest statutes of 28 states, including North Carolina; and according to the dissent, is so deeply mistaken that if it is not wrong, “there is no such thing as error.” The case is Maryland v. King.

History. The defendant was arrested for a felony assault after menacing a group of people with a shotgun. Maryland law provides that DNA must be collected from those arrested for burglary or a crime of violence. (As in many other states, if the proceedings don’t end with a conviction, the DNA sample is destroyed, and there are safeguards associated with the use of the DNA profiles, such as a prohibition on using the DNA for purposes other than identifying those who committed a crime.) Accordingly, as part of the booking process, officers took a sample of the defendant’s DNA by swabbing the inside of his cheek. The defendant’s DNA profile was subsequently tested, and matched that from a previously unsolved rape. The defendant was charged with the rape and moved to suppress the DNA results, asserting that the officers conducted an unlawful search by collecting the sample. The trial court denied the motion and the defendant was convicted. The defendant’s appeals eventually led to the Supreme Court.

Outcome and lineup of Justices. A five-Justice majority ruled for the state. As is often true in Fourth Amendment cases, the lineup did not follow traditional political lines: Justice Kennedy wrote the majority opinion, joined by the Chief Justice and Justices Alito and Thomas . . . and Justice Breyer. Justice Scalia dissented, joined by Democratic appointees Justices Ginsburg, Kagan, and Sotomayor.

Majority opinion. The majority acknowledged that taking DNA is a search for Fourth Amendment purposes, and that a warrant, or at least some level of individualized suspicion, is usually required for searches. However, it noted that individualized suspicion is not always required, and ruled that it should not be required in this context given the minimal nature of the intrusion; the fact that the arrestee has already been taken into custody and so has a reduced expectation of privacy; and the important law enforcement interests served by DNA collection, including properly identifying the arrestee, potentially unearthing his true criminal record, and thereby being able to set appropriate conditions of release.

The majority also compared DNA analysis to less advanced identification techniques, such as photographing and fingerprinting, that are routinely used during the booking process. The Court reasoned that if those techniques generally are permissible under the Fourth Amendment, so too should DNA collection be allowed. Granted, DNA analysis is not as fast as fingerprinting and so may be less useful for rapid identification. But fingerprinting was not always fast, and DNA analysis is getting much faster, with new equipment expected to accelerate the process further.

Finally, the majority attempted to limit the scope of its ruling. First, it stated that “the necessary predicate of a valid arrest for a serious offense is fundamental.” Second, it noted that there was little risk that the collected DNA will be misused, since the sections of DNA analyzed contain only identifying information (not personal or health information) and the law strictly limits the purposes for which DNA profiles may be accessed.

Dissenting opinion. The dissent is classic Justice Scalia in high dudgeon, and he read the dissent from the bench in a show of dismay. Early on, he summarized: “Whenever this Court has allowed a suspicionless search, it has insisted upon a justifying motive apart from the investigation of crime. It is obvious that no such noninvestigative motive exists in this case. The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous.”

The dissent attacked the majority’s claim that DNA analysis is useful for the identification of defendants, noting (1) that DNA testing can’t be conducted under Maryland law before arraignment, and so necessarily will not be available at the earliest pretrial stages, when the defendant’s identity is most likely to be in question, (2) that in fact DNA analysis wasn’t conducted in this case until several months after the defendant’s arrest, far too late to serve any identification purpose, and (3) that the resulting profile was submitted to CODIS, the nationwide DNA database, as the known sample of the defendant – not as a sample of an unknown, yet-to-be-identified individual.

As to the fingerprint analogy, Justice Scalia argued that fingerprinting is actually used to identify arrestees at or near the time of arrest, unlike DNA. And he questioned whether fingerprinting might not also be a Fourth Amendment search that should be permitted only with individualized suspicion, noting a lack of case law on point.

Finally, the dissent appealed to the risk of a slippery slope. The majority ruled that DNA collection is allowed only in connection with “serious offenses,” but the dissent noted that all criminal defendants need to be identified, not just those charged with major crimes, and so predicted that the ruling will later be extended. In fact, the dissent continued, identifying people would be helpful in a variety of contexts, so King opens the door to taking DNA samples from everyone who flies on an airplane, applies for a driver’s license, or attends public school.

Comments from others. The ACLU doesn’t like the ruling. A couple of big name constitutional law scholars do. Professor Orin Kerr thinks the case is important practically but not doctrinally and that the dissent is “overheated.” SCOTUSblog has a summary here.

My comments. King raises as many questions as it answers. First, what counts as a “serious offense” for which DNA collection on arrest is permitted? The Court didn’t say. It upheld Maryland’s law, which includes violent crimes and burglaries, but never said that was the constitutional floor. State DNA laws vary quite a bit in this regard. North Carolina’s statute, G.S. 15A-266.3A, limits DNA collection mainly to arrests for very serious crimes. But what about the collection of DNA upon arrest for the misdemeanor offense of cyberstalking? King casts some doubt on the propriety of that.

Second, is DNA collection upon arrest permitted only when authorized by a statute? In other words, may an officer in a state without a DNA-on-arrest statute nonetheless collect a sample of a murder arrestee’s DNA as part of the booking process? Or may an officer in a state with a statute, like North Carolina, collect DNA from a person arrested for a serious offense that is not listed in the statute, such as drug trafficking or a Class C embezzlement? Much of King’s rationale, including its discussion of the minimal nature of the intrusion and the arrestee’s reduced expectation of privacy, would apply even absent a statutory mandate requiring the collection of DNA. But the Court also emphasized the safeguards present in Maryland’s statute and its nondiscretionary nature. Without those, the outcome may have been different. At this point, I would advise officers to collect DNA only pursuant to the statute or a court order.

Third, must an arrestee’s DNA be destroyed and his DNA profile removed from law enforcement databases if he is not convicted? That was a feature of Maryland’s law, and it is in North Carolina’s statute as well. Apparently it is currently a requirement for states that participate in CODIS, as discussed in this helpful summary by the Urban Institute. But fingerprints taken upon arrest normally aren’t destroyed if charges are dismissed or the defendant is acquitted, and it isn’t clear whether that specific safeguard is constitutionally required for DNA.

Finally, are there other technologies that might fall under the rationale of King? Could the police take an arrestee’s retinal scan as a routine matter? Could they take a sample of an arrestee’s voice for voice biometrics?

As always, I welcome others’ thoughts, comments, and ideas.