The Oral Argument in Maryland v. King -- Part V

It is time to sum up and read the tea leaves that are in the transcript of the February 26th oral argument in Maryland v. King. Previous postings concerned these topics:

Part I

• Whether taking DNA profiles of arrestees is distinguishable from acquiring them from the general population;

Part II

• Whether deriving information from database trawls that could inform pretrial release decisions and conditions can constitute a special need for warrantless DNA acquisition now or in the future;

 Part III

• Whether DNA profiles are distinguishable from fingerprints on the theory that collecting fingerprints is not even a search;
• Whether DNA samples are distinguishable from fingerprints because DNA samples contain more personal information;

Part IV

• Whether Kyllo's analysis of thermal imaging of a home applies to DNA profiling;
• Whether the Court's precedents show it is unwilling to trust the government;
• How Skinner, Greenwood, and Davis (4th Cir. 2012) affect the claim that a laboratory analysis limited to identifying features is a search in its own right.

At least some of the Justices appeared to be searching for a theory that would distinguish routine DNA collection and analysis before conviction (DNA-BC) for arrestees from the DNA-BC for everyone in the population. But why?

Sure, it sounds more moderate to approve existing laws (if that is what these Justices decide to do) on a theory that shows that the databases never could be expanded to the entire population (without a constitutional amendment). Nevertheless, that is not likely to happen anyway, and stepping back from the rococo structure of Fourth Amendment doctrine and probing the pertinent interests, it seems that the legitimate privacy interests in avoiding a record of purely identifying features are weak. Blood samples already are taken for screening newborn children for certain genetic diseases (a special need), and it would not hard to add loci that be would suitable for identification and to upload these data while keeping the samples entirely within the health care system.

Of course, most children will never grow up to commit crimes for which DNA traces will be found, so the government's interests in having a population-wide identification database also are limited. But severing routine DNA collection from contacts with the criminal justice system has an egalitarian appeal. It would avoid the class- and race-based imbalance in the databases populated by profiles from individuals who have been arrested or convicted.

Will the Court uphold DNA-BC for arrestees on one theory or another? I suspect so, but given the Justices' statements during the argument and their positions in previous Fourth Amendment cases, it could be a close case with three or more separate opinions. Justice Alito seemed especially impressed with the law enforcement value of DNA databases. The Chief Justice's opinion staying enforcement of the Maryland law also treated this as a major consideration. Justice Breyer emphasized the limited threat to personal privacy. Justice Kennedy seemed content with the incantation "incident to arrest," and he has strongly supported the power of the state to compel a person to produce identification. See Orin Kerr, Balancing Versus the Warrant Requirement: A Few Thoughts on Maryland v. King, SCOTUSblog, Feb. 18, 2013 (discussing Justice Kennedy’s opinion in Hiibel v. Sixth Judicial District Court). That could be four votes to uphold the practice right there.

Justices Kagan and Sotomayor seemed to be leaning the other way, using the analogy of a search of a house and noting the absence of an existing exception to the warrant-and-probable-cause requirement. Justice Scalia appeared to reason that the case is a classic trespass on the person that historically would have been unacceptable without probable cause. Will that be as far as his analysis goes? Justice Ginsburg noted that DNA-BC, although "very reliable" was not based on individualized suspicion. These could be four votes to end DNA-BC.

Justice Thomas was characteristically silent at the argument. He wrote the balancing opinion in Samson on which Maryland relies and generally tends to reject challenges to search under the Fourth Amendment. If he sees DNA databases as a development not governed by the original understanding of the framers, he may well find the balancing arguments of the state and federal governments sufficient.

In the end, my money is on a 5-4 (or maybe 6-3) decision for the state. But I am not prepared to wager more than a nominal amount. As opinions are drafted and exchanged, the Justices easily could modify the positions they hinted at in the oral argument. Lots of issues are swirling about in this case. The opinions that emerge by the end of June could be important not only for the many states that have adopted or are considering adopting DNA-BC, but also for the zigzagging development of Fourth Amendment doctrine.