Argument preview: Crime, technology, and privacy

At 11 a.m. Tuesday, the Supreme Court is scheduled to hold one hour of oral argument on the scope of police authority to take a DNA sample from an individual arrested for a crime, in the case of Maryland v. King (docket 12-207).   Arguing for the state of Maryland, with fifteen minutes of time, will be Chief Deputy State Attorney General Katherine Winfree, of Baltimore.  Supporting Maryland, and arguing for the federal government, with fifteen minutes of time, will be Deputy U.S. Solicitor General Michael R. Dreeben.  Representing Alonzo Jay King, Jr., will be Kannon K. Shanmugam, of the Washington, D.C., office of Williams & Connolly LLP.

Background

It is a simple truism that, whenever police find a new kind of technology that will give them a better chance of solving crimes, they will adopt and use it eagerly.  But, if the new device has the potential to intrude, to a significant degree, into the personal privacy of individuals whom the police suspect of being criminals, the technology has to pass a three-part test under the Fourth Amendment.  First, is it a search, legally speaking; second, what authority did the police have to search, and, third, was the search justified, as “reasonable.”

The Supreme Court for years has been pondering how the Fourth Amendment applies to rapidly advancing new techniques of law enforcement — most recently, for example, cellphones and GPS position-locating devices.  Earlier, it examined, for example, the use of heat-sensing devices, aerial cameras, and wiretaps.  Next up: the still-young science of testing an individual’s DNA, coming before the Court in the case of Maryland v. King.

Few advances in law enforcement technology can equal the sheer practical value of taking a sample of one’s DNA — that is, deoxyribonucleic acid.  DNA is the body’s do-it-yourself manual: it tells the body how to create every one of the 100 trillion cells in the genetic profile of a person.  Together, all of this genetic data is known as the genome, or a person’s genetic code.  Sounds complicated, and it is — scientifically.  Its constitutional status is more easily explained — or debated, and that is just now evolving.
Police, on one side, and defense lawyers, on the other, can benefit from at least some of the information revealed by a DNA sample.

It is a very good (though not infallible) identifier of who an individual is.  As everyone who watches TV police dramas knows, when a sample is compared to DNA material gathered at the scene of a crime, it can point an accusing chemical finger at the individual tested — or it can rule that person out as the criminal.  Quite a number of individuals have gotten off of death row because of DNA exoneration.

Now, all fifty states and the federal government collect DNA samples.  But the key constitutional issue before the Justices is this:  from whom can the police and the FBI take a DNA sample, without that individual’s permission, without any advance reason to think that individual committed a particular crime, or without the advance approval by a judge through a search warrant.   There is no doubt that taking a DNA sample is a search, so the Fourth Amendment is at issue in every instance of involuntary DNA sampling by the government.

The specifics of the Maryland case before the Court provide a good way to set up that issue.

On April 10, 2009, Alonzo Jay King, Jr., was arrested in Wicomico County, on Maryland’s Eastern Shore.  He was charged in state court with first- and second-degree assault.   The charge was based upon a complaint that King had pointed a shotgun at a group of individuals; one of those reported the incident to police.  Arrested, King admitted that he was involved.   He was convicted of second-degree assault, a misdemeanor crime.

After he was arrested, police took a sample of his DNA.  They did so with what is called a “buccal swab,” using a small cotton-tipped stick to gather DNA material from inside his mouth, along the cheek.  King’s lawyers would later contend that the police did not need to take the sample to know that the person they had arrested for the assault was King; they already knew that.

What police were after was something different, something that a 1994 Maryland law allows them to do: to solve unsolved crimes, state and local police are given permission to take a DNA sample from every individual in the state who has been accused of a crime of violence, an attempted crime of violence, a burglary, or an attempted burglary.  The law applies to an individual arrested for such a crime, or one who has actually been convicted of a crime.  Police do not need a warrant for this procedure, and they do not need to believe, beforehand, that this individual did commit a particular crime other than the one for which the individual was put under arrest.  The arrest gives them permission to take the sample.

If such a sample is found to match DNA evidence from a different crime, the match cannot be used as evidence in a trial for that crime, but it does give police and prosecutors the basis (“probable cause”) for pressing charges for that other crime, and for taking another DNA sample. The Maryland Court of Appeals (the state’s highest court) in 2004 had upheld the DNA collection law, but only as it applied to those already convicted of the specified crimes.

At the time King’s DNA sample was taken, he was only under arrest.  The sample was analyzed to create a DNA profile.  On August 4, 2009, King’s DNA was found to match evidence that had been found in 2003, after a sexual assault in Wicomico County.  The match led prosecutors to charge King with first-degree rape and other crimes, for the 2003 crime.  In that incident, a woman identified in court papers as Vonette W. was raped and robbed in her home by a masked intruder carrying a handgun.  A lab test produced a DNA profile from semen, presumably from the rapist.  At the time, there was no match to it in state or federal DNA databases.

Put on trial for those crimes, King and his lawyers sought to block the evidence of the DNA match, contending that the sample was taken in violation of his right to privacy under the Fourth Amendment, since he had only been arrested at the time, not convicted.   Prosecutors would later say that the DNA match was the sole key to their case; without it, they had no chance of getting a conviction on the rape charge.   The jury found King guilty of first-degree rape, and he was sentenced to life in prison without parole.

In April of last year, the Maryland Court of Appeals ruled that the state DNA collection law could not be applied to an involuntary sampling of King when he had only been arrested.  The Constitution, that court ruled, starts with the basic view that a search is unreasonable under the Fourth Amendment if it is conducted without suspicion targeting the individual, and without a court-approved search warrant.

While the swabbing of the inside of King’s cheek was only a “minimal” intrusion into his bodily privacy, the state court said, it was enough to implicate King’s privacy rights, especially because DNA can reveal a good deal about an individual’s human profile.  Those under arrest, it added, have a greater right of privacy than those who have actually been convicted of a crime — thus distinguishing the case from its 2004 decision allowing involuntary DNA sampling of convicted persons.

The state court did not say there were no circumstances under which the collection law could be applied legally, so it did not strike down the law altogether.  It did void King’s conviction, though, and in essence barred involuntary DNA sampling of arrestees.

Maryland officials, saying they had needed the DNA match to pursue the case against King, and arguing that the state court ruling threatened their authority to take DNA samples from arrestees throughout the state, persuaded Chief Justice John G. Roberts, Jr., to put the case on hold last July until after the state could appeal.  The Chief Justice said that taking samples from arrested persons was “a valuable tool for investigating unsolved crimes.”  At that time, though, the Chief Justice was not deciding the case, but rather only finding a basis for refusing to allow implementation of the state court ruling prior to the appeal.

The state of Maryland then filed its appeal on August 14.

Petition for certiorari

The state asked the Court to decide one issue: whether the Fourth Amendment allowed states to “collect and analyze DNA from people arrested and charged with serious crimes.”   As prosecutors often do in their Supreme Court papers, the petition opened with a brief description of the crime against the Wicomico County woman.  That tends to heighten the emotional appeal of the case, putting it in a victim context.

When the petition moved into legal arguments, it said that the case was “about whether the Fourth Amendment allows public safety officials to collect identifying DNA information from people who have been lawfully arrested and charged with serious crimes.”  The case, it quickly added, had nothing to do with a state passing out a suspect’s “wholesale genetic information.”

Even so, it said, the state’s highest court had proceeded on the premise that “the state was looting a ‘vast genetic treasure'” when police took a DNA sample from a person in custody.  That “false conception,” the document said, led to striking down the state collection law as it applied to arrestees.

There is now a split among lower courts, the petition said, on that issue.  Among the other flaws the state found in the state court ruling was its supposed creation of a “two-search theory” — the swab search for the sample, and the later search for matching DNA material.  That theory “portends dire consequences for all forms of forensic testing,” the petition said.

Broadening its plea, the state said that the underlying Fourth Amendment issue and the split over it “adversely affects public safety efforts nationwide,” and it noted the Chief Justice’s comments along those lines in putting the state decision on hold temporarily.

King’s lawyers, in reply, did not dispute that the case raised “a number of indisputably substantial issues” about DNA sampling and privacy that the Court had not yet confronted, but they urged the Justices not to take on this case, but rather to let the issue “percolate” in lower courts.   The brief in opposition argued that there had been only one full-scale ruling by a federal appeals court and only two by state high courts.  The split, the brief said, is only “nascent and shallow.”

The science behind DNA technology, the brief said, is continuing to evolve, “and the legal landscape is shifting as officials develop new uses of DNA analysis.”  Recent discoveries, it said, suggest that the personal information that is gathered through DNA analysis “is much greater than previously believed.”

And it noted that the Supreme Court had previously commented that the courts should not rush in to make constitutional rulings on emerging technology.  It would be premature, the brief noted, for the Supreme Court to step in now to resolve the constitutional controversy over DNA sampling from arrested individuals.

Maryland legislators and law enforcement officials, the National District Attorneys Association, and a pro-DNA sampling advocacy group, “DNA Saves,” urged the Court to hear the Maryland appeal.

The Court granted review on November 9.

Briefs on the merits

The state of Maryland’s brief on the merits was uncommonly sparse for a major constitutional case, and that brevity reflected the theme of the entire document: not much is at stake in this case, except for the state of Maryland’s law enforcement needs.  The brief devoted only seventeen pages to legal argument.

The brief argued that a balancing test clearly favors DNA sampling of arrestees, that the intrusion from a swab of the cheek (“quick and painless”) is minimal, that an arrested person does not have a lot more freedom than a convicted individual, that the presumption of innocence does not apply to an arrestee, that the state’s need to identify accurately those it arrests is clear, and that the Maryland law has a series of safeguards that enhance its reasonableness.

The brief plainly relied heavily upon the fact that the Fourth Amendment only limits searches that are “unreasonable.”  By paring down the issues that it contended are at stake, especially the interests that an arrested individual has, the brief sought to facilitate its argument that the state’s interests in law enforcement are obviously more than sufficient to justify DNA sampling of those in custody as arrestees.

On the closing page of the brief, Maryland used the facts of the case to “dramatically underscore the value of expanding the database [of DNA] to include arrestees charged with violent crimes.”  It recounted, as it had at the opening of its petition for review, the facts of the rape of Vonette W., and added that King “did not leave behind his photograph, his fingerprints, or his name — but he did leave his identity nonetheless, in the form of a string of numbers engraved upon every cell.”

The state’s only opportunity to take advantage of that evidence came when the state legislature expanded the sampling law to include arrestees, allowing prosecutors to link him to the 2003 rape, the brief said.

King’s brief on the merits is far more ambitious than was his brief opposing review, and its constitutional arguments run to twice the length of those made by Maryland.  The overall theme, intending to raise the stakes in this case for the Court, is that the Court should not develop a new “exception to established Fourth Amendment rules for a new technology.”

Just because a new technology comes along to help out law enforcement, the brief said, does not justify a “distortion” of the Fourth Amendment general rule that the government should not be allowed to make “a blanket, warrantless search of the type at issue here.”

In King’s case, the brief noted, there was no warrant and, at the time of the DNA sampling, officers had no idea that King might be linked to another crime in the past.  That was what they were seeking, and that is why they took the DNA sample, which, the brief noted, no one doubts was a search that calls forth the Fourth Amendment.

If the Court were tempted to relax the warrant requirement in the DNA sampling context, the brief suggested, it ought not to do so when there is not even a “reasonable suspicion” that it will point to an arrested individual as the perpetrator of a wholly different crime.

It is apparent, from the whole of the brief, that King’s counsel is most concerned about the possibility that the Court will find a way around the warrant and probable cause norms of Fourth Amendment law.    It catalogued the other situations in which the Court had dispensed with those norms, and argued that DNA sampling was nothing like those situations, especially because of the profound risk the brief saw to databases filled with personal information.

The second major concern of the King brief is that the Court will embrace the suggestion of Maryland (and the federal government, an amicus in the case) that the Court should weigh DNA sampling on a balancing scale that calibrates individual privacy and government interests.

A balancing test, the brief contended, is no substitute for the individualized suspicion and warrant requirements of the
Fourth Amendment, and those requirements cannot be set aside just because there is a new advance in law enforcement technology.  The Court, it asserted, does not begin with a balancing test, and then bring in the warrant and individualized suspicion requirements only when there is a balance between privacy and government interests.  Those requirements come first, and can be set aside only to support a strong justification — not supplied just because there is new technology, the brief said.

But, if the Court does choose to employ a balancing test, the brief had a back-up argument: King’s privacy interests, in the information contained in his DNA, include the entirety of his DNA profile.  This can be retained in databases, and privacy is not assured just because law enforcement officials claim they will not try to exploit it, the brief contended.

The balancing test offered by Maryland and the federal government, King’s lawyers contended, has “no meaningful limiting principle,” and might one day extend the power to sample DNA on a blanket scale among “ordinary citizens.”

The Justice Department has come in strongly, not only in defense of Maryland’s law in particular, but on behalf of the power to sample DNA among arrested individuals — something that the FBI and law enforcement officials in twenty-eight states are now authorized to do.  The defense of that particular form of DNA collection is fulsome and sweeping, and demonstrated that the government sees its own interests as deeply threatened in this case.

A further indication of the government’s concern for its own interests,  beyond the brief, was that it asked for — and the Court granted — equal time in oral argument for government counsel.

As expected, the government’s written arguments are keyed very closely to the fact that the Fourth Amendment speaks in terms of “reasonableness,” rather than in terms of bright-line mandates.  And it is no surprise that the brief contended that DNA sampling is entirely reasonable, especially when a balance is sought to be struck between privacy and the government’s need to solve crimes.

Likening DNA sampling to the long-used practice of taking fingerprints, the government brief sees the intrusion into privacy on the same level, and suggests that the government does not really collect much more from DNA than from fingerprinting.   DNA, it said dismissively, “is only a list of numbers.”  It is speculation, according to the brief, that the government in the future will move into wholesale collection of private data derived from DNA.

Among the amici filings, Maryland has been able to do something that almost never occurs in a Supreme Court case in which states’ interests are engaged: it has recruited the support of all the other forty-nine states, plus Washington, D.C., and Puerto Rico.   That is no small feat, given the differing political complexions of the states.

Maryland also drew heavy amici support from all of the major organizations representing state and local governments, of a wide array of prosecutors’ groups, as well as police organizations, and crime victims’ support groups.

Alonzo King has significant amici support from scientists working in genetics, foreseeing the risk that DNA collection may portend, and from criminal defense and civil liberties organizations, scholars of “forensic evidence,” and privacy advocates.

Analysis

The state of Maryland very likely starts with a significant prospect that the Chief Justice is already on its side.  Although his July opinion putting the Maryland court decision on hold was not meant to signal how he would vote on the merits, that opinion went beyond the calculation of the usual factors in granting a stay of a lower court decision to speak expansively about the need for DNA sampling, and the impact of limiting that in one state — like Maryland — on the entire nation because of the centrality of DNA data sharing.

The chances are that those other Justices known to be generally sympathetic to law enforcement would be at least somewhat inclined to go along with the assessments the Chief Justice previously made.  And, although the Court’s more liberal members clearly do not move in lockstep on criminal procedure, there is the real chance that most if not all of them would be more concerned about personal privacy and the prospect of massive accumulations of personal data in government files.

Thus, perhaps almost as usual in highly contested cases, the decision may come down to the potential tie-breaking vote of Justice Anthony M. Kennedy.  With a few notable exceptions, as in the field of juvenile punishment, Kennedy has tended toward a more conservative orientation on law enforcement, and, in particular, on the use of new technology by police.

He wrote an opinion that saw a diminished value of privacy in the messages stored in pagers supplied by a government employer, went along only with the narrowest disapproval of GPS tracking by police, and did not share a majority’s concern about using a heat sensor on the outside of a private home to detect marijuana-growing inside.

The challenge, then, may fall more heavily on Alonzo King’s lawyer, to persuade the Court not to embrace too quickly the use of DNA sampling technology, and to keep the Court’s focus centrally on the role that the warrant and individualized-suspicion requirements play in curbing police excesses.  That attorney no doubt will be under considerable pressure to justify whether those arrested for serious crimes really are different, constitutionally speaking, from those actually convicted of such offenses.