Wednesday, November 27, 2013

Maryland v. King: When Being Smart and Witty Isn't Enough

Justice Scalia's dissenting opinion in Maryland v. King, the arrestee-DNA case, has been praised as "one of the best Fourth Amendments dissents, ever" and his "smartest, wittiest ruling of all time." [1] But one man's wit is another's vitriol, and the opinion, according to another law professor, is "dripping with contempt." [2]  Stylistically, this opinion is more evidence that the art of writing with courtesy as well as conviction has been lost.

Substantively, what makes this dissent "one of the best"--other than one's feelings about which result is correct? It cannot be that the opinion sets forth some enduring principle for understanding and applying the Fourth Amendment. The opinion is less concerned with what the Maryland police did than with why they did it. Thus, the opinion begins with the following seemingly bright-line rule: "[w]henever this Court has allowed a suspicionless search, it has insisted upon a justifying motive apart from the investigation of crime" and then single-mindedly devotes itself to demonstrating that the "primary purpose [of the search] was to detect evidence of ordinary criminal wrongdoing." Id. at 1981-82. In the process, it overlooks the real possibility that something about the type of search and evidence in question makes the putative rule inapposite.

I say "putative rule" because the law is not as clear as the opinion suggests. The Court allowed a suspicionless search of a person on parole in Samson v. California, 547 U.S. 843 (2006). Although the majority led by Justice Kennedy in King relied prominently on Samson, Justice Scalia made no effort to disavow or distinguish the case.

More fundamentally, the dissent's desire for a rule that prohibits all suspicionless searches that have as their "primary purpose" the production of evidence of a crime leads to an odd result. The police may not collect a DNA sample by painlessly swabbing the inside of a cheek if they intend to see whether it matches one on file from an unsolved murder, rape, or other crime; however, they can if they want the same DNA profile, first and foremost, to verify the name and look up any previously recorded criminal history of the same person. Other than reciting the supposedly absolute rule about motives, the dissent offers no justification for this difference. It does not contest the majority's claim that the nature of the invasion of personal security and privacy in King is minor, akin to photographing or fingerprinting an arrested person. (I will look at what the dissent had to say about photography and fingerprinting in a separate posting.)

In criminal procedure cases, Justice Scalia favors absolute rules that require little inquiry into competing values. In King, this mode of analysis allowed him to vehemently insist that the Fourth Amendment does not allow forcing a prisoner to provide a small DNA sample. Yet, he did not dissent from Justice Kennedy's opinion in Florence v. Chosen Board of Freeholders, 132 S. Ct. 1510 (2012), which upheld a police practice of forcing all prisoners in jails to disrobe, open their mouths, wiggle their tongues, and move their genitalia so that their jailers could inspect their nude bodies--all without the slightest suspicion that the individual is concealing evidence or contraband. [3] In that case, why did Justice Scalia express no doubt that "the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection"? King, 133 S.Ct. 1958, 1989 (2013) (Scalia, J., dissenting).

To avoid misunderstanding, I hasten to add that I too find the dissenting opinion powerful, at least when it comes to showing that Maryland's primary legislative purpose in authorizing DNA collection and analysis before conviction was to investigate crimes other than ones for which the arrest is made. But that was hardly a blinding insight [4], and the opinion does not address the more basic question of why the intent to gather evidence should invalidate biometric data collection. Is it unconstitutional for police to collect fingerprints from arrestees with the sole intent to check them against a database of latent prints from unsolved crimes? With the database check as the "primary purpose"? Id. at 1981-82 emphasis added). It is nearly impossible to tell from this, Justice Scalia's "smartest ... ruling."

  1. Jeffrey Rosen, A Damning Dissent: Scalia's Smartest, Wittiest Ruling of All Time, New Republic, June 4, 2013, available at
  2. Noah Feldman, Grumpy Old Scalia v. Those Pesky Kids, Bloomberg View, June 30, 2013,
  3. Sherry F. Colb, The Road to Justice Scalia Is Paved With (Some) Intentions, Verdict, June 12, 2013,
  4. David H. Kaye, Who Needs Special Needs? On the Constitutionality of Collecting DNA and Other Biometric Data from Arrestees, 34 J. L., Med. & Ethics 188 (2006), available at
Previous Postings on the Opinions in Maryland v. King

1 comment:

  1. Ascertaining the government's "primary purpose" to determine the constitutionality of a government practice is not limited to the Fourth Amendment arena.

    I assisted in drafting the Supreme Court briefs in two Sixth Amendment cases that, for the first time, proposed using a "primary purpose" test to determine whether a hearsay declarant was a "witness" within the meaning of the Confrontation Clause. (See, Davis v. Washington and Hammon v. Indiana, 547 U.S. 813 (2006).) This analysis required a determination of whether a hearsay declarant's statement was obtained by the police for the "primary purpose" of (1) building a case against a known suspect (in which case the statement would be "testimonial," and the declarant would be a "witness" under the Confrontation Clause) or (2) addressing an "ongoing emergency" involving public safety (in which case the statement would be "nontestimonial" and the declarant would not be a "witness" under the Confrontation Clause).

    I also developed the "primary purpose" test that was adopted by four justices in Williams v. Illinois, 132 S.Ct. 2221 (2012). This test narrowed the test in Davis & Hammon by concluding that a hearsay declarant was a Confrontation Clause "witness" only if their statement was obtained by the government for the "primary purpose" of "accusing" a "targeted" individual of a crime.

    So, in the Sixth Amendment context, just like in the Fourth Amendment context (Indianapolis v. Edmond, 531 U.S. 32 (2000)) the "primary purpose" underlying the government's conduct has always been pivotal to the Court's constitutionality determination.

    With this background in mind, I don't see any inconsistency in Scalia's joining the majority in Florence and his dissent in King. In Florence, viewed objectively, the "primary purpose" of the search was to ensure the "safety" of all the people who work and reside in the jail. Importantly, the "primary purpose" of such searches is not simply to build a case against the arrestee.

    In King, however, viewed objectively, there is only one purpose for the search: To determine if the arrestee is connected to an unsolved crime. On the surface, I can see Scalia's perspective that this evidence gathering purpose (by throwing out a suspicionless net to hopefully catch a piranha) would distinguish King from Florence. But when one examines the issue a little closer, the consistency of Scalia's position becomes questionable.

    Yes, in King, the purpose of the search was to determine if King was linked to any unsolved crime and, thus, can be deemed to be motivated by "evidence gathering," as opposed to "safety" (as in Florence). But, "safety" is at the core reason (albeit unstated) that the King majority held the search to be reasonable.

    The logic behind the majority's "safety" rationale is that linking an arrestee to an unsolved crime would, in turn, provide for the "safety" of persons in the jail and, if the arrestee may be released pending his trial, the "safety" of the public at large.

    The King majority didn't want to plainly state that "safety" was at the heart of its holding for fear that this would create a slippery slope allowing the "safety" justification to swallow the Fourth Amendment's protection. But, in my opinion, there is simply no getting around the fact that the "primary purpose" behind (the justification for) arrestee DNA searches is "safety" (of jail occupants and the public at large). The majority should have clearly stated so in King rather than engaging in the semantics of whether the term "identification" has a broad (the majority) or narrow (the dissent) meaning.