Why Can't Maryland Continue to Check Arrestee DNA Profiles?

In the wake of Maryland’s peculiar decision this week holding its arrestee DNA database law unconstitutional “as applied” (King v. State 2012), the Balitmore Sun reported that “a bank of nearly 16,000 DNA samples collected since January 2009 will remain in limbo. The samples were run through a database of cold-case evidence for matches” (Wenger, 2012). Presumably, this means that 16,000 DNA samples in the state’s possession (1) come from arrestees who have not been convicted (at least, not yet); (2) these samples already have yielded DNA profiles (digital records of DNA features used in making identifications); (3) the profiles are in a computer database that allows them to be searched against the profiles recovered from crime scenes or victims (in hot and cold cases, new ones and old ones, alike); but (4) the state has chosen to stop using the existing arrestee database. Thus, the Sun quotes a state police spokesman as saying that "The DNA database will remain inactive and the searching of any information in it ceased today" (Ibid.).

But why? Let’s assume that the King case was correctly decided — something that is not apparent from the reasoning given in the opinion and the cases cited there (Kaye, in press). It seems clear that trawling the crime-scene database for a match to an arrestee is not a search under the Fourth Amendment. Trawling and retrawling does not invade bodily integrity; neither does it reveal facts about the individual’s genome that are not already known. These are the only two interests that the Maryland judges in the majority provided as the basis for their opinion. The only interest that the database trawl implicates is the interest in not being tied to a crime-scene. Under rulings of the U.S. Supreme Court, a suspect’s bare desire not to be linked to a crime does not create a “reasonable expectation of privacy” (e.g., United States v. Jacobsen 1984). Government action that invades no reasonable expectation — in this case, retrawling — does not constitute a “search or seizure.” It is outside the scope of the Fourth Amendment.

But even if retrawling cannot constitute a search — a conclusion that has clear support in federal case law (Boroian v. Mueller 2010; Kaye 2011) — what about the illegality (according to King) in acquiring the DNA before the suspect has been convicted?  Does not the use of the illegally acquired and profiled DNA taint any hit made in the later trawl?  Is not the hit “the fruit of the poisonous tree,” as the courts call it, that must be excluded as evidence in a criminal case?

The answer could be “yes but no.” Yes, the trawl is the fruit and normally would have to be excluded from the state’s case in chief. Here, however, the illegal search (and its fruits) need not be excluded as evidence under the Supreme Court’s holding in Illinois v. Krull, 480 U.S. 340 (1987). Krull holds that the exclusionary rule does not apply when police conduct a warrantless, suspicionless, administrative search pursuant to a state law that later is found to be unconstitutional. That is precisely the situation here. The only “search” was the acquisition of the DNA for databasing, and it was conducted in good faith on the basis of a statute that seemed to be constitutional.

But surely this is too clever a legal argument. The good-faith exception supports (1) the acquisition of the DNA sample; (2) the laboratory analysis; and (3) all trawls conducted before the opinion in King. (So does the Supreme Court’s approach to the retroactivity of constitutional decisions.) This means that the lower courts on remand should uphold King’s original conviction, but retrawling after the court has ruled that the samples and profiles should not have been acquired goes beyond the situation in Krull. In that case, the police did no more than turn over the evidence they collected in good faith to the prosecution.

Thus, Maryland’s decision to keep the arrestee DNA database under wraps (at least until the Supreme Court rules on the practice or the Maryland court reconsiders the issue at some later time) is probably correct. But King should have no effect on “12 pending cases across Maryland that depend on such DNA evidence” or on the “65 arrests and . . . 34 convictions” (Wenger 2012) already obtained in good faith. Even if the five judges in the majority in King are right about the constitutional status of the law, the exclusionary rule does not apply to this previously acquired evidence.

References

• United States v. Jacobsen, 466 U.S. 109 (1984)
• Boroian v. Mueller, 616 F.3d 60 (1st Cir. 2010)
• King v. State, No. 68, 2012 WL 1392636 (Md. Apr. 24, 2012)
• David H. Kaye, A Fourth Amendment Theory for Arrestee DNA and Other Biometric Databases, 15 U. Pa. J. Const. L (in press)
• David H. Kaye, DNA Database Trawls and the Definition of a Search in Boroian v. Miller, 97 Va. L. Rev. in Brief 41 (2011)
• Yvonne Wenger, Md. Authorities Stop Post-arrest DNA Collection: Sampling Halted Pending Potential Supreme Court Appeal, Baltimore Sun, Apr. 27, 2012

Maryland's Highest Court's Opinion on Arrestee DNA Is an Outlier

Maryland's highest court is its Court of Appeals. Two days ago, in King v. State [1], this court became the first supreme court of any state to hold that taking a DNA sample from an arrestee is unconstitutional. But you would not know this from the court's opinion.

Instead, the Maryland court purports to follow "the Minnesota Supreme Court in C.T.L." Considering that the Minnesota Supreme Court did not decide C.T.L. and that it has yet to consider the routine practice of taking DNA prior to arrest [2], this is no small feat.

The majority opinion in King, penned by Judge Glenn T. Harrell, Jr., contains additional gaffes. It refers to Judge Marjorie Rendell of the U.S. Court of Appeals for the Third Circuit as a man, and it asserts that "Fourth Amendment analyses" are "more stringent" than "a First Amendment 'rational basis' review" -- whatever that may mean.

Of course, these infelicities do not mean that the opinion is wrong -- although it is long on description and short on analysis. The balancing of state and individual interests that is pivotal to the opinion is less than lucid. We can get a sense of the court's approach from its discussion of the individual interests that the opinion seeks to protect. To begin with, the Maryland court gives more weight than other courts do to the interest in being free from an unwanted but painless and relatively minor intrusion into one's body. Judge Harrell writes that DNA

is collected by swabbing the interior of a cheek (or blood draw or otherwise obtained biological material). While the physical intrusion of a buccal swab is deemed minimal, it remains distinct from a fingerprint. We must consider that “[t]he importance of informed, detached and deliberate determinations of the issue whether or not to invade another's body in search of evidence of guilt is indisputable and great.” Schmerber, 384 U.S. at 770.

The puzzle here is that, if the physical intrusion is indeed minimal, why is it of “great importance” to have a “detached . . . determination” in the form of a judicial warrant? It cannot be the peculiar notion that laboratory analysis to produce an identifying profile is a separate search requiring a warrant. If that were so, the laboratory analysis of “abandoned” DNA of a suspect also would require a warrant. This might be a reasonable position—but the King court does not retreat from State v. Williamson, 993 A.2d 626 (Md. 2010). There, the police recovered and then analyzed DNA from a drinking cup given to a suspect at a police station, and the Maryland Court Appeals flatly rejected the separate-search argument. Furthermore, if the “physical invasion” aspect of the DNA collection were of such great importance, the state could avoid the impact of King by changing the method for collecting the DNA. Instead of a buccal swab, the arrestee could be asked to place his fingers on a sticky pad to which some cells would adhere.

The interest that actually seems to be driving the opinion is not that the arrestee is compelled open his mouth so that some cells can be scraped from the inside of his cheek. It is, in the King court's words, the possibility that “the vast genetic treasure map that remains in the DNA sample retained by the State” will be read or released in violation of state law. But the opinion utterly fails to address whether the state’s possession of that unread map (the physical sample kept under lock and key) unreasonably interferes with a defined privacy interest. And even if it does, could not Maryland acquire the identification profiles -- data that are nothing like "[a] person's entire genetic makeup and history" -- and then destroy the physical sample to satisfy the court's oddly applied balancing test?

Despite its problems, both superficial and fundamental, King is not devoid of all redeeming value. For example, the court correctly distinguishes between the use of a biometric identifier for identification and its use of it for intelligence purposes. But the opinion sheds no new light on the constitutional issue and casts some grotesque shadows. Readers seeking a deeper analysis will have to look elsewhere [3].

References

1. King v. State, No. 68, 2012 WL 1392636 (Md. Apr. 24, 2012)
2. In re Welfare of C.T.L., 722 N.W.2d 484 (Minn. Ct. App. 2006)
3. David H. Kaye, A Fourth Amendment Theory for Arrestee DNA and Other Biometric Databases, University of Pennsylvania Journal of Constitutional Law, Vol. 15 (in press)

Postscript

Alan Lazerow pointed out that the court's opinion does not have the superficial flaws that caused my jaw to drop and pen to move. Thankfully, the opinion as now posted on Maryland's website and Westlaw have these blemishes removed.

Cross-posted to the Double Helix Law Blog.