Balancing versus the warrant requirement: A few thoughts on Maryland v. King

By Orin Kerr
on Feb 18, 2013 at 8:00 pm

On February 26, the Supreme Court will hear oral argument in Maryland v. King, a case about the constitutionality of DNA collection and analysis. The case presents the latest skirmish in an ongoing debate in Fourth Amendment law:  Should the reasonableness of Fourth Amendment searches be analyzed through the traditional default rule that a search ordinarily requires a warrant, absent a specific exception to the warrant requirement? Or does reasonableness require a balancing of interests in each case?

I. The facts

Alonzo King was arrested and charged with second-degree assault. After charges were formally filed, Maryland state officials collected a sample of his DNA by means of a swab of the inside of his cheek. The state officials sent the swab to a company that analyzed the DNA on the swab and provided the state with a DNA profile. A DNA profile reports back the data from a few specific regions on an individual’s chromosomes that are selected because they are not thought to correspond to any particular traits or characteristics. The profile was entered into a computer database of DNA profiles, and the computer reported back a match with a DNA profile taken from a sample in a 2003 sexual assault. King was charged with rape and other crimes for the 2003 assault. King moved to suppress the evidence of the DNA match on the ground that obtaining and analyzing the sample was unconstitutional. The trial court denied the motion to suppress, and King was found guilty of first-degree rape and sentenced to life in prison without the possibility of parole.

II. The framework of reasonableness

The Fourth Amendment prohibits unreasonable searches and seizures. The parties in King agree that taking the DNA sample by means of the buccal swab was a Fourth Amendment search. Their disagreement concerns whether it is a reasonable search or an unreasonable one.

That disagreement largely hinges on a long-running debate in Fourth Amendment caselaw. One view, which was dominant in the middle of the twentieth century, is that a search is “reasonable” in the Fourth Amendment setting only if done pursuant to a warrant or a specific exception to the warrant requirement.  The second view, which was largely invented in the 1960s and has become more influential in the last decade, is that whether a search is “reasonable” must be evaluated on a case-by-case basis by balancing the government interests and the privacy interests.  For simplicity, we can call the former the “per se” approach and the latter the balancing approach.

The per se approach remains in force in most areas of Fourth Amendment cases. In recent years, however, the balancing approach has been making inroads. And King presents a stark choice between the two. The state (and the United States as an amicus in support of Maryland) advocates a balancing approach. The state reasons that the search in King is reasonable because the intrusion is not particularly invasive, while the DNA profile has many uses that further important government interests. On the other hand, King mostly advocates the per se approach. King reasons that a DNA swab and analysis do not fit any of the traditional exceptions to the warrant requirement, such as search-incident-to-arrest or “special needs” exception. Because no exception to the warrant requirement applies, the search cannot be reasonable without a warrant. Here, the choice of approach may lead to the answer. (Or, for the cynical realists who are reading, the availability of the choice gives the Justices room to justify either result.) It would be possible for the Court to rule for King under the balancing approach or for the state with the per se approach. But, on the whole, the per se approach tends to favor King while the balancing approach tends to favor the state.

III. Reading the tea leaves

How might the Justices line up on this question? It’s hard to say. The leading case for the balancing approach is Samson v. California, a case upholding suspicionless searches of a person out on parole. The six-to-three opinion by Justice Thomas was joined by Chief Justice Roberts, Justice Scalia, Justice Kennedy, Justice Ginsburg, and Justice Alito. The dissenters included two Justices no longer on the Court — Justices Stevens and Souter — as well as Justice Breyer. If that line-up is an indication of how the Justices will line up in King, then King has an uphill battle. But I’m not sure Samson sheds much light on King. The balancing approach in Samson was justified largely on the state’s “earnest concerns respecting recidivism, public safety, and reintegration of parolees into productive society,” recognizing the special position of the state with respect to individuals on parole. In contrast, the state’s interest in King is really a more general interest in solving crimes through DNA matches. Also, King involves privacy in new technologies The nine-to-zero vote in the recent GPS decision, United States v. Jones, suggests that questions of new technology can lead to some unpredictable voting alignments.

Tea-leaf reading on the Roberts Court often means speculating about where Justice Kennedy might come out. Justice Kennedy’s past writings suggests particular deference to law enforcement techniques designed to identity suspects. Consider some of the language from Justice Kennedy’s opinion in Hiibel v. Sixth Judicial District Court, which involved a Fourth and Fifth Amendment challenge to a state law requiring persons to identify themselves when stopped by the police. Here’s one quote: “Knowledge of identity may inform an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder. On the other hand, knowing identity may help clear a suspect and allow the police to concentrate their efforts elsewhere. Identity may prove particularly important in cases such as this, where the police are investigating what appears to be a domestic assault. Officers called to investigate domestic disputes need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.”  More from the opinion: “One’s identity is, by definition, unique; yet it is, in another sense, a universal characteristic.”  And still more: “In every criminal case, it is known and must be known who has been arrested and who is being tried.” It’s true that DNA identification is really focused on identifying a match with past crimes, not identifying a suspect at the time of arrest. Still, Hiibel seems to hint (at least to me) that Justice Kennedy is somewhat more likely than not to vote for the government in this case.

So who is a possible fifth vote? One Justice to watch in King is Justice Scalia, I think. Justice Scalia dislikes vague balancing tests, and he is no fan of “slosh[ing] our way through the factbound morass of reasonableness.” He might be more willing than Justice Kennedy to apply the traditional rule of a default warrant requirement. Certainly King’s brief has several arguments that seem to be written with Justice Scalia in mind. The brief not only appeals to Justice Scalia’s preference for rules over standards, but it also includes some well-known Scalia-isms. (See, for example, page 52: “This wolf comes as a wolf.”) With that said, Justice Scalia has written his fair share of opinions celebrating the overall reasonableness approach, albeit not paired necessarily with interest balancing. Justice Scalia’s concurring opinion in California v. Acevedo comes to mind: It links reasonableness to common law rules rather than the default rule of a warrant. But it’s not at all clear what guidance the common law might give to a problem like DNA collection.

IV. Three additional thoughts

I’ll conclude with three thoughts. First, I found the amicus brief from scientists in favor of neither party to be very helpful. It’s very good at explaining what DNA profiles can and can’t reveal. If you want to get up to speed on the technology, it’s very much worth reading.

Second, I think it may be analytically helpful to the Court to break down the “search” question into two stages. First, there’s the buccal swab. But second, there’s the analysis of the sample. Under Skinner v. Railway Labor Executives Association, analyzing the sample to obtain the DNA profile is a second search: It reveals information about the DNA not otherwise visible, searching it much like opening a closed container.  (At the same time, entering the profile into the DNA database and obtaining the match would not be a search. The data contained in the profile was disclosed to the police as the fruit of the search, and once the police have the data in their possession they can enter it into a database and manipulate it without further limits from the Fourth Amendment.)  So the legality of the government’s conduct boils down to the reasonableness of two searches: The buccal swab, and the creation of the DNA testing.

Why does this matter? It doesn’t really matter in this case, but it might help answer a potentially important follow-up question. The government still has the original DNA sample from the initial swab. They could conduct more DNA testing on that swab, and they might test to obtain information beyond just the DNA profile. If there’s a majority in King to say that the conduct was reasonable, recognizing two different searches could allow the Justices to say that the DNA test to get the profile is reasonable here while a possible future DNA test for other reasons might be unreasonable. That is, breaking down the conduct into two distinct searches could allow the Court to craft a narrower rule that extends different privacy protections to different kinds of DNA testing from the same sample.

Third, I doubt the dispute in King would have been before the Supreme Court if the state had litigated the case more carefully. Unless I’m missing something, the good-faith exception to the exclusionary rule almost certainly should apply here. Under Illinois v. Krull, the exclusionary rule does not apply when offers conduct a search or seizure in reasonable reliance on a statutory authorization. In this case, the officers relied on the Maryland DNA Collection Act. Given that the constitutionality of searches pursuant to the Act is not clear-cut, suppression should not be an available remedy. But as far as I can tell, the state forgot to make this argument below. As a result, it’s not an issue in the case.