evaluate the actual interests implicated by preconviction searches, properly defined; articulate the appropriate framework for evaluating the reasonableness of warrantless searches in general; and attend to the complexities in applying that framework to the biology of DNA identification tests and to the limited information recorded in DNA databases. An opinion that accomplishes these tasks should supply not only a truly “considered analysis” of the constitutionality of DNA-BC but also much needed guidance on the limits of totality balancing in all Fourth Amendment cases.David H. Kaye, On the “Considered Analysis” of DNA Collection Before Conviction, 60 UCLA L. Rev. Disc. 104 (2013).
The Court now has spoken. Justice Kennedy, joined by the Chief Justice and Justices Thomas, Breyer, and Alito, wrote an opinion upholding Maryland’s law as constitutionally reasonable. Their opinion lists—with approval—all the colorable reasons a state could have for enacting such a law. Justices Scalia, joined by Justices Ginsberg, Kagan, and Sotomayor, correctly but scathingly responded that the Maryland legislature was not really pursuing all these goals in enacting and implementing its law.
From the standpoint of developing more coherent Fourth Amendment doctrine, both opinions have major limitations. The majority opinion, I shall argue, does little to provide the much needed guidance as to when totality balancing applies. The dissenting opinion, on the other hand, adopts a clearer rule but ignores the reasons for the rule (beyond a contested reading of the history of the Fourth Amendment).
The threshold question in King, as in any Fourth Amendment case, is whether a search occurred. The issue was not really in dispute. As the majority opinion points out, cases decided under the “reasonable expectation of privacy” rubric of Katz v. United States had held that requiring an individual to expel air from deep within his lungs, to submit to a blood draw, and to have debris gently scrapped from beneath a fingernail all have been deemed searches. Scraping the inside of the cheek falls in the same category. See also David H. Kaye, The Constitutionality of DNA Sampling on Arrest, 10 Cornell J. L. & Pub. Pol'y 455 (2001).
More recently, the Court has been applying an analysis more closely related to the common law of trespass to decide whether particular information-gathering practices are searches. In United States v. Jones, a majority held that affixing an object—a GPS transmitter—to personal property—a car—was a search even if did not invade a reasonable expectation of privacy. In Florida v. Jardines, a different majority held that bringing a drug-detecting dog onto the porch of a house to sniff was a search on the basis of a similar trespass-like theory.
In both cases, Justice Scalia wrote the majority opinion, paying little respect to the previously established Katz standard. In King, he did not discuss the issue, but at the oral argument, he applied the same trespass-ish analysis. When counsel for King referred to the reasonable expectation of privacy in genomic information, Justice Scalia suggested that the nature of the information was irrelevant because “You have a physical intrusion. You — you pull a guy's cheek apart and stick a — a swab into his mouth. That's a search — a reasonable expectation of privacy or not.”
The trespass-to-the-person notion is sufficient for disposing of the question in King itself, but the Maryland Court of Appeals used a more complex two-search theory. It claimed that “The first search is the actual swab of the inside of King's mouth and the second is the analysis of the DNA sample thus obtained, a step required to produce the DNA profile.” No justice endorsed this bifurcation. The bodily-invasion rationale was sufficient under both Katz and Jones-Jardines..
Stepping back from the precise facts in King, it is interesting to consider how the state could have responded if the dissenting view that the search was impermissible had prevailed. Could Maryland simply have adopted a less invasive mode of DNA collection, then argued that it was not undertaking a search at all? For example, would having a suspect merely touch a sticky pad (and thereby deposit enough cells for DNA profiling) constitute a search under the "physical intrusion onto the person" approach emphasized by Justice Scalia?
One might answer by paraphrasing the dissent’s “doubt that the proud men who wrote the charter of our liberties would have been so eager to [present] their [fingers] for royal inspection.” But that is no answer. These proud men also might not have been keen on sitting still for a photograph or a fingerprint for the King's men; yet, the dissent distinguished taking mug shots from collecting DNA samples “because that is not a Fourth Amendment search at all.” As for fingerprinting, the dissent stated that “our cases provide no ready answer to that question.”
Since photographing is not a search that triggers the Fourth Amendment’s protections, police should be free to use facial recognition software to check whether previous arrestees happen to match photos from a crime-scene (such as the Boston Marathon bombing)—even though they have no basis to suspect the many arrestees of that crime. But if fingerprints are the product of a suspicionless search, the same theory does not apply, and the Court would have to decide whether it is reasonable to trawl a database of latent prints from crime scenes to produce evidence against an arrestee. And if the dissenting Justices would accept the use of fingerprints to connect arrestees to unrelated crimes, why do the majority and the dissent disagree on the reasonableness of DNA collection and trawling? To answer these questions, we must move from the issue of defining the government activity that amounts to a search to the problem of evaluating the reasonableness of searches. As the majority observed, “To say that the Fourth Amendment applies here is the beginning point, not the end of the analysis.”