Reconsidering the “Considered Analysis”: How Convincing Are the Cases Cited in the Stay Order in Maryland v. King?

For nearly a decade, DNA-on-arrest laws eluded scrutiny in the courts. For another five years, they withstood a gathering storm of constitutional challenges. In King v. State, 42 A.3d 549 (Md. 2012), however, the Maryland Court of Appeals reasoned that usually fingerprints provide everything police need to establish the true identity of an individual before trial and that the state's interest in finding the perpetrators of crimes by trawling databases of DNA profiles is too "generalized" to support "a warrantless, suspicionless search." The U.S. Supreme Court reacted forcefully. Even before the Court could consider issuing a writ of certiorari, Chief Justice Roberts stayed the Maryland judgment. His chambers opinion signaled that "given the considered analysis of courts on the other side of the split, there is a fair prospect that this Court will reverse the decision below."

Some thoughts on the lower court opinions and the issues the Supreme Court will confront are in press in the online Discourse section of the UCLA Law Review. The essay provides a more coherent, complete, and polished presentation than the scattered remarks in earlier postings on this blog. It briefly examines four sets of opinions—the early one from the Virginia Supreme Court in Anderson, the Third Circuit’s en banc opinions in Mitchell, the Ninth Circuit’s panel opinions in Haskell (vacated to make way for en banc review), and the Arizona Supreme Court’s opinion in Mario W. Building on these judicial efforts, the essay outlines the Fourth Amendment questions that a fully considered analysis must answer, identifies questionable treatments of “searches” and “seizures” in the four sets of opinions, and criticizes the creative compromise in Mario W. that allows sample collection but not DNA testing before conviction.

I do not think that there is much room for compromise on the constitutional question. Various opinions maintain (in dictum) that preconviction collection is acceptable after, but not before, an indictment or preliminary hearing. That's another compromise, of sorts, and the Maryland law (as the state has implemented it) postpones DNA collection until after a probable-cause-for-trial hearing. Thus, anything the Supreme Court will say in King on DNA collection as part of the booking procedure will be dictum. It seems to me, however, that once an individual is legitimately detained, either the Fourth Amendment permits the compulsory collection, analysis, and use of DNA—the whole ball of wax—as a biometric identifier for both authentication and criminal intelligence purposes or it does not.  Thus, I am betting that the Court will write a broad opinion upholding DNA database laws at all points after arrest.  But IMHO, it's a close question.

References

• David H. Kaye, On the "Considered Analysis" of Collecting DNA Before Conviction, 60 UCLA L. Rev. Discourse (forthcoming 2013) (preprint)
• David H. Kaye, Drawing Lines: Unrelated Probable Cause as a Prerequisite to Early DNA Collection, 91 N.C. L. Rev. Addendum 1 (2012) (preprint)