Saturday, June 15, 2013

Maryland v. King: The Tenth Justice (Stevens) Votes

Yesterday, Justice Stevens addressed the American Constitution Society. He took the unusual step of stating how he would have voted on the constitutionality of collecting DNA from arrestees and using it, not necessarily as proof of the individual's true identity, but as an investigative tool to link the arrestee to unrelated crimes. This is, of course, the use that split the Court in this month's decision in Maryland v. King.

Below I offer a condensed and annotated version of Justice Stevens' analysis. Although I do not agree with every aspect of Justice Stevens' discussion, I think he got it right, and I take issue with the surprising hyperbole that already has appeared in The Atlantic. The justice's words are highlighted.

Last week, in a five-to-four decision, the Supreme Court upheld Maryland's requirement that the police collect a DNA sample from every person charged with a violent crime. The sample that was obtained from the defendant after his arrest for menacing a group of people with a shotgun matched the DNA specimen obtained ten years ago in an unsolved rape case. ... Justice Kennedy concluded that the procedure, which admittedly constituted a ''search'' within the meaning of the Fourth Amendment, was reasonable as a part of the routine identification process followed when taking arrested persons into custody.

In his dissenting opinion, Justice Scalia argued that the real purpose for the search was to solve crimes, rather than to identify persons that the State had taken into custody, and that the Fourth Amendment categorically forbids searching anyone for evidence of a crime if there is no basis for believing the person is guilty of a crime or is in the possession of incriminating evidence. ... [E]ven if Justice Scalia has correctly rejected Justice Kennedy's identification justification for taking DNA records from persons arrested for violent felonies, other considerations may well support the majority's holding.

First, unlike the evidence that may be obtained by examining the contents of containers and clothing during the search of an automobile, taking a DNA sample reveals no information about the private, non-criminal conduct of the object of the search. In the Belton case, I remember being particularly offended because the majority's rule allowed an arresting officer making a traffic stop to search through the driver's brief-case. It seems to me that taking a DNA sample — or a fingerprint sample — involves a far lesser intrusion on an ordinary person's privacy than a search that allows an officer to rummage through private papers.

On The Atlantic's website, award-winning legal reporter Andrew Cohen called the last paragraph "crazy talk." The crazier talk, however, is Mr. Cohen's. In his view, to perform DNA identification profiling, police rummage through "private papers" in the sense of "the unique and vital identifying characteristics of the person to whom they belong." Furthermore, the identification profile goes into, as he puts it, "a secret government database, which makes all of the information contained in those papers immediately available to every law enforcement agency in the nation."

That the database is not public seems like a good thing (although, as I have argued elsewhere, releasing anonymized versions to outside researchers would be desirable). But the key question is, what's the information that goes into the law enforcement DNA databases? Is it private, that is, intimate, personal information?

According to Mr. Cohen, it "can tell observers exactly who he is -- what gender, what race, etc." What's the et cetera? It is hard to get too upset about apparent gender and race -- police can get that from looking at the arrestee. Is the worry that the arrestee might have undergone sex change surgery, and this would be revealed when the laboratory tests the amelogenin gene? Is the worry that CODIS STRs are a record of some biological category known as race? That is not what "race" is. The STRs provide weak information on biogeographic ancestry, but if the DNA profile shows no more than one's public appearance does about these matters, it is hard to get too exercised.

But somehow Mr. Cohen does. He writes that "As part of the 'rummaging,' the police take photographs of each of the documents that make up the 'private papers' and then transfer all of the contents of each document-- words, photographs, everything ... . Even though the papers then are transferred back to the person to whom they belong their contents, having been copied and recorded, are 'seized' forever. The copies, in these circumstances, are exactly as valuable and as telling as the originals. Meanwhile, those papers that were searched can never be destroyed and the information contained in them can never be retracted or disavowed."

This analogy is, at best, forced. STR profiles are not returned to arrestees. They are not kept indefinitely (unless there is a conviction). They can be destroyed. In all these ways, they are like photographs.

As between the two characterizations, then Justice Stevens is much closer to the truth. Fingerprints and DNA profiles are different from private papers. (DNA samples are another story, but if that is what Mr. Cohen is referring to, his description of what happens to them is even more bizarre.)

At the same time, there are nuances that neither Justice Stevens nor Mr. Cohen recognize. STR profiles could be used to probe claims of paternity, for example. But Justice Stevens has it basically right: "a DNA sample — or a fingerprint sample — involves a far lesser intrusion on an ordinary person's privacy than a search that allows an officer to rummage through private papers." The intrusion may not be zero, but it is much less than all the searches through purses, briefcases, backpacks, glove compartments and the like that might contain private papers or other highly informative and embarrassing material. For more on the analogy between acquisition of biometric data and ordinary searches of containers, see The Arizona Supreme Court Adopts a No-Peeking Rule for Juvenile Arrestee DNA, June 28, 2012; On the “Considered Analysis” of DNA Collection Before Conviction, 60 UCLA L. Rev. Disc. 104 (2013) (debunking the Arizona Supreme Court's personal property analogy).

Second, the proven accuracy of DNA samples in both establishing guilt and exonerating the innocent who have been mistakenly convicted or accused, favors greater rather than lesser use of DNA evidence. Rules that unnecessarily preclude the use of such evidence may impede the search for truth without providing any meaningful protection for privacy interests. In the Maryland case, for example, the only interest in privacy that was implicated was the defendant's interest in not being convicted of a serious crime that he in fact committed.

It is not quite this simple. Alonzo King, like the rest of us, has an interest in what I have called "spatial privacy." DNA profiles in a database could lead to the discovery that innocent people have been in private locations that they legitimately would want not to be known to the general public or the authorities. This observation also undercuts the first sentence of the preceding paragraph of Justice Steven's speech. It is literally true that "taking a DNA sample reveals no information about the private, non-criminal conduct of the object of the search." However, the biometric data derived from the sample can. Mr. Cohen is on firmer ground in objecting to the narrow focus of this sentence. Still, the potential for tracking the movements of the person through DNA is also limited. It does not begin to resemble cameras on every street corner or round-the-clock GPS tracking of a car, for example.

Third, the public interest in creating accurate databases about individuals who are reasonably believed to have been engaged in significant criminal behavior should not be ignored. The Maryland system did not apply indiscriminately to the entire population, but only to those for whom there was probable cause to justify their arrest for a violent crime. It is not entirely accurate to characterize the taking of a DNA sample from members of that class as a "suspicionless search" even though they may not be convicted of any crime. More complete and more accurate databases may be useful, not only for the purpose of solving crimes, but also for the purpose, for example, of identifying persons who should not be permitted to purchase handguns.

A true "special need" as the Court has used the term, but hardly one that occurred to the Maryland legislature! Would the King dissent accept it in a state that developed the appropriate legislative history?

Fourth, expanding DNA data-bases will certainly have an increasingly significant deterrent effect on potential rapists. The deterrent value of increasing punishment for crimes is always qualified by the criminal's confidence in his ability to avoid detection. But every potential rapist whose DNA is already available to the law enforcement community will surely know that his identity will be known to the police if he commits a rape. In sum, although I commend Justice Scalia's characteristically lucid opinion to you, and admittedly have not read the briefs in the case, I think I would have voted with the majority if I were still on the Court.

This is a rather optimistic view of the ability of DNA evidence in every rape case. Does it argue for a population-wide database? Or is it only people who are arrested who are "potential rapists"?


Justice John Paul Stevens (ret.), Address at American Constitution Society Convention, June 14, 2013 , available at

Andrew Cohen, Why Justice Stevens Is Dead Wrong About DNA Searches: Is it really less intrusive to collect someone's vital data for eternity than it is to rummage through his papers briefly?
June 15 2013,

David H. Kaye, On the “Considered Analysis” of DNA Collection Before Conviction, 60 UCLA L. Rev. Disc. 104 (2013)

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