Monday, March 24, 2014

What Is Wrong with People v. Lowe? More on DNA-on-Arrest Laws After Maryland v. King

Less than 24 hours before the U.S. Court of Appeals for the Ninth Circuit issued an opinion that avoided addressing the constitutionality of California's all-felony-arrest DNA database in the light of the Supreme Court's opinion in Maryland v. King, the California Supreme Court granted review to confront this question. The case, People v. Lowe, already has generated two opinions from California's Fourth District Court of Appeal.

In its first opinion, the California Court of Appeal concluded that
[T]he legitimate governmental interests promoted by the warrantless collection of DNA samples, including buccal swab samples, from felony arrestees who are taken into custody upon probable cause, far outweigh the arrestees' privacy concerns. Our conclusion is based on the following five reasons: The felony arrestee's diminished privacy interests; the de minimis nature of the physical intrusion involved in the collection of a buccal swab sample; the carefully limited scope of the DNA information that is extracted; the strict limits on the range of permissible uses of the DNA information obtained and the significant criminal penalties imposed upon those who violate those limitations; and the strong law enforcement interests in obtaining arrestees' identifying information, solving past and future crimes, deterring future criminal acts, and exonerating the innocent.
No. D059007, 2012 WL 5918717, Nov. 27, 2012, at *12 (unpublished opinion).

The California Supreme Court then directed the Court of Appeal to reconsider the matter in light of the U.S. Supreme Court's decision in Maryland v. King. See 165 Cal. Rptr. at *110. The Court of Appeal responded by recycling its original opinion with some quotations from King spliced in. It repeated the "five reasons" paragraph, moving a few words around. Id. at 121-22. It added four paragraphs to show that "[o]ur decision is consistent with the United States Supreme Court's recent majority decision in King," id. at 122, and called it a day.

Apparently, some of the California Supreme Court Justices believe that there is more to say about the possible distinctions between the Maryland law and the California one — either to establish that one some of the differences between the two laws matter or to confirm the Court of Appeal's conclusion that they do not.

Elsewhere, I have argued that the Supreme Court could invalidate a system like California's without overruling King (Kaye 2014). But I doubt that the Justices in the King majority would have any inclination to strike down any DNA-on-arrest law, and, as the latest Lowe opinion indicates, some of their statements in King make it easy to extend the case to California's law. 1/

Whatever lies behind the grant of review, the California Supreme Court can improve on the opinion in Lowe. First, it should not claim, as the Court of Appeal did, that "[t]he primary purpose of the amended DNA Act is to identify arrestees" in the sense of establishing who is who. Although California collection of DNA on arrest serves more than one purpose, the primary purpose of Proposition 69 is to solve and deter more crimes. 2/ Second, if the state supreme court chooses to include in a balancing test the value of capturing arrestees in the DNA database for solving crimes, it should recognize that this approach differs from the more contrived balancing in King. Third, if the supreme court does balance in this context, it should be careful about what it puts on each side of the balance. Thus, it should repudiate the view that arrestees have "diminished privacy interests." Their interests in privacy are no less valuable than anyone else's. The arrest is salient because it brings to bear state interests that would not otherwise be present, but it does not diminish the weight of anyone's Fourth Amendment interests. Fourth, the supreme court should avoid the Court of Appeal's incoherent reasoning about what triggers "totality of the circumstances" balancing. 3/ Finally, any opinion should avoid the phrase "junk DNA" and should describe the information content of DNA profiles in terms that are less easily confused with a different scientific issue (see Greely & Kaye 2014).

  1. See also Haskell v. Harris, No. 10-15152 (9th Cir. Mar. 20, 2014) (M. Smith, J., concurring)); Murphy (2013). 
  2. The Declaration of Purpose begins as follows: "Our communities have a compelling interest in protecting themselves from crime." Text of Proposed Laws, Proposition 69.
  3. The Court of Appeal first claimed, on the basis of the Supreme Court's anomalous opinion in Samson v. California, 547 U.S. 843 (2006), that "whether a particular search meets the reasonableness standard is judged by examining 'the totality of the circumstances.'" Then it contended that instead of judging whether every particular search is reasonable under so fluid a standard, the judgment is to made under the categorical rule that "[s]ubject only to a few well-delineated exceptions, warrantless searches are per se unreasonable under the Fourth Amendment." Then, it applied a balancing test, not at the level of a particular search, but at a programmatic level, to conclude that the California law satisfied the Fourth Amendment. Recognizing a categorical exception to the per se rule against warrantless searches would be one way to avoid such confusion. E.g., Kaye (2013).
Thanks to Erin Murphy for remarking on the grant of review in Lowe.
Previous Postings on the Aftermath of Maryland v. King

Previous Postings on the Opinions in Maryland v. King
  • Maryland v. King No. 1: Quick Thoughts, June 3, 2013,
  • Maryland v. King No. 2: Was There a Search?, June 7, 2013,
  • Maryland v. King: Interlude, June 9, 2013,
  • Maryland v. King No. 3: Bertillonage as Precedent, June 12, 2013,
  • Maryland v. King: A Digression on Ellipses, Actual Innocence, and Dr. Mengele, June 13, 2013,
  • Maryland v. King: “Quite a Worldview”, June 15, 2013,
  • Maryland v. King: The Tenth Justice (Stevens) Votes, June 15, 2013,
  • Maryland v. King: When Being Smart and Witty Is Not Enough, Nov. 27, 2013,
  • Maryland v. King: The Dissent's Ten Second Rule, Nov. 29, 2013,
  • Blast Off for King from Florida's Space Belt? Not Quite, Feb. 26, 2014,

Saturday, March 22, 2014

The Ninth Circuit's Minimal Opinion in Haskell v. Harris

Two days ago, eleven judges of the Ninth Circuit issued a long awaited opinion in Haskell v. Harris. 1/ The en banc court ruled against the plaintiffs challenging California's DNA-on-arrest law. However, the court did not address their arguments and has not ended the case one way or the other.

Instead, the court simply said that the Supreme Court's opinion last June in Maryland v. King 2/ means that at least some applications of the California law are constitutional; consequently, "plaintiffs cannot show that the district court abused its discretion in denying a preliminary injunction that would apply to the entire class." The court’s final words were "[i]f plaintiffs believe they're entitled to a preliminary injunction as to a smaller class, they are free to seek it from the district court and we will review it if and when it is presented to us."

The Wrong Class -- or the Wrong Relief?

There is a problem with this logic, at least as the court expressed it. The certified class included “[a]ll persons who are, or will be, compelled to submit to the search and seizure of their body tissue and DNA . . . solely by reason of the fact that they have been arrested for, or charged with, a felony offense by California state or local officials.” As to some members of this class, the en banc court indicated, DNA sampling, analysis, and trawling clearly would be permissible under King. But what could the smaller class be? Who are the people arrested in California who "clearly" are constitutionally subject to DNA sampling and retention as it is done in California?

The en banc court gives no answer, but King most clearly applies when:
The DNA sampling [is] confined to violent crimes and burglaries; officials [have] no discretion to pick and choose which arrestee’s DNA to acquire; a physical intrusion into the body [takes] place; the loci tested reveal[] no sensitive medical or other privacy-laden information; the state trawl[s] the forensic index (of unsolved crime scene profiles) only for matches to the arrestee (and not for partial matches that might point primarily to immediate relatives); the profiling and uploading occur[s] after formal charges; and the samples are destroyed if a conviction does not ensue. 3/
The people in these conditions cannot be part of a class entitled to any relief. However, this excludes, well, no one in California. Even people arrested for violent crimes and burglaries (as in Maryland) are at risk for familial searching (although the Haskell plaintiffs did not rely on this concern as a basis for distinguishing King), and they are not entitled to automatic destruction of samples (as are arrestees in Maryland). Moreover, everyone arrested in California for any felony could have a sample analyzed and the profile trawled before any judge agrees with the state that there is at least probable cause to believe that the arrestee has committed a felony.

Given this set of arguably distinguishing factors, it is not so obvious what "smaller class" the court had in mind. Even after King, the class need not change, but the injunction (if one were warranted) would have to be tailored to different subclasses. For example, arrestees charged with violent crimes or burglaries would not be entitled to the blanket order that plaintiffs requested back in 2009. At that time, plaintiffs asked the district court to "enjoin[] Defendants ... from the compulsory search, seizure, collection, analysis, and/or retention of biological samples from any member of the Plaintiff Class ... until and unless he or she is actually convicted of a felony offense, unless such search, seizure, collection, analysis, and/or retention is supported by a warrant issued on probable cause ... ." 4/ But the entire class still might be entitled to some relief. If we were to suppose that no departure from the Maryland law were permissible —which is the most that the California plaintiffs could hope for — even California arrestees charged with Maryland-type felonies would be entitled to an order requiring the state (1) to delay that profiling and uploading until they are bound over for trial, (2) to destroy their DNA samples if they are not convicted, and (3) to refrain from using their profiles in familial searches.

Because plaintiffs sought only a one-size-fits-all injunction, and that size was too big, the district court correctly denied that particular relief. But variable relief would be consistent with plaintiffs' theories of the Fourth Amendment. This, I think, is what the en banc court was getting at in referring to a smaller class. And, if the court reached a consensus solely on this procedural ground, then it is appropriate to allow plaintiffs to amend their complaint in light of King. 5/

A Concurring Opinion

One judge already disagrees with this construction of the per curiam opinion. Judge Milan Smith, who wrote the panel opinion upholding the California law well before Maryland v. King, 6/ read “the per curiam opinion [as holding] that California's DNA collection law is clearly ‘constitutional as applied to anyone arrested for, or charged with, a felony offense by California state or local officials.’” (Emphasis added).

I doubt that this is a correct reading of the per curiam opinion, but I have to say that the other judges could have been clearer about their desire to avoid opining on the limits of King. The other en banc judges wrote that the case turned on the answer to the question, "Is California's DNA collection scheme constitutional as applied to anyone 'arrested for, or charged with, a felony offense by California state or local officials?'" The answer, they claimed, "is clearly yes." So does "anyone" really mean "everyone," as Judge Smith claims, or does it mean "at least one," as I thought when I first read the per curiam opinion? Only the latter interpretation can be reconciled with the court's willingness to countenance a narrower class action.

Judge Smith denied that a complaint on behalf of a narrower class (or, better, a request for a more nuanced injunction) is viable. Surely, he contended, King decided all these fine points in favor of the state. The arguments in his concurring opinion, however, are not uniformly compelling.

Judge Smith wrote that "[t]he majority in King expressly recognized that its decision 'implicates more than the specific Maryland law.'" 7/ But this observation hardly means that every variation of arrestee sampling in existence in 2013 is constitutional under the inherently vague balancing test adopted by the majority. Of the 28 states with arrestee DNA laws, "11 states require an arraignment or judicial determination of probable cause before a sample can be collected or analyzed." 8/ Suppose that the opinion in King had explicitly announced that this provision is essential to a finding of Fourth Amendment reasonableness. That would have contradicted Judge Smith's understanding of the opinion, but the decision still would have "implicate[d] more than the specific Maryland law." It would have pulled the rug out from under 17 states.

Thus, it is a stretch to infer from the King court's recognition of the obvious — that it was deciding a case of national interest — that is also was deciding on the propriety of every existing DNA-on-arrest law. That is not how the Anglo-American system of case-by-case adjudication works.

Neither does the concurrence gain much mileage from "the sky is falling" rhetoric in the King dissent. Judge Smith accepted at face value Justice Scalia's protestation that the result in King could be — indeed, would have to be — extended to reach the most minor of arrests. In oral argument, Judge Smith suggested that Justice Scalia had to be right. After all, said Judge Smith, "he was in the conference, he heard what the majority decided, and that's how he reads it. How can we read it otherwise?" 9/ Yet, it is a standard ploy of dissenting opinions to exaggerate the scope or sweep of the opinion they oppose, and Justices who participated in a conference on a case frequently disagree over the import of the opinions that eventually emerge.

That said, Judge Smith may well be correct in a Legal Realist sense. It is doubtful that the Justices in the majority in King would respond very differently to the other state laws. 10/ Given the phrasing in Justice Kennedy's opinion, the Chief Justice's earlier stay of the Maryland Court of Appeals decision, and the remarks of several Justices at the oral argument in King, it seems likely that those Justices would have no problem using their balancing test to uphold the California law despite all its differences from the Maryland's law. For the Ninth Circuit to have written an opinion striking down parts of California's system of DNA database system would have perilous. Nevertheless, the court of appeals has left the door open to doing so in this four-and-a-half-year-old case.

  1. No. 10–15152, 2014 WL 1063399 (9th Cir. Mar. 20, 2014) (en banc). The 11 judges, selected at random from the full court, are Chief Judge Alex Kozinski and Judges Harry Pregerson, M. Margaret McKeown, Raymond C. Fisher, Ronald M. Gould, Richard A. Paez, Richard C. Tallman, Johnnie B. Rawlinson, Milan D. Smith, Jr., N. Randy Smith and Paul J. Watford.
  2. 133 S.Ct. 1958 (2013).
  3. David H. Kaye, Why So Contrived? The Fourth Amendment Balancing, Per Se Rules, and DNA Databases After Maryland v. King, 104 J. Crim. L. & Criminology (forthcoming 2014).
  4. Class Action Complaint for Declaratory and Injunctive Relief, Haskell v. Brown, Oct. 7, 2009, at 22-23.
  5. Of course, the ACLU, which represents the plaintiffs, might conclude that it has no chance of prevailing on the theory that states cannot relax a single one of the various limitations written into Maryland's law. For instance, it might give up on those people who are charged with violent crimes or burglaries and contend only that individuals arrested for less serious felonies cannot have their DNA analyzed and uploaded before a judge determines that probable cause is present. This certainly would result in a narrower class. But the court's premise that a subclass of arrestees in California are identical to arrestees in Maryland is faulty. Because the California system does not include automatic sample destruction, everyone whose DNA has been collected on arrest in California has been treated differently. The opinion does not state that this is an insignificant difference, but unless that is what it means, it is hard to see why the ACLU must plead for a narrower class.
  6. Haskell v. Harris, 669 F.3d 1049 (9th Cir. 2012). For criticism of Judge Smith’s theory that “the Constitution's plain text” dictates “the ‘totality of the circumstances’ balancing test to determine whether a warrantless search is reasonable,” id. at 1053–54, see David H. Kaye, On the “Considered Analysis” of DNA Collection Before Conviction, 60 UCLA L. Rev. Disc. 104 (2013).
  7. The majority wrote that
    Twenty-eight States and the Federal Government have adopted laws similar to the Maryland Act authorizing the collection of DNA from some or all arrestees. See Brief for State of California et al. as Amici Curiae 4, n. 1 (States Brief) (collecting state statutes). Although those statutes vary in their particulars, such as what charges require a DNA sample, their similarity means that this case implicates more than the specific Maryland law. At issue is a standard, expanding technology already in widespread use throughout the Nation.
    Maryland v. King, 133 S.Ct. 1958, 1968 (2013). The technology of STR typing is standard and in widespread use, as are computer-searchable databases of the resulting profiles, but this does not make every use of the technology constitutionally acceptable. That the majority referred to the charges that trigger DNA collection as a "particular" that varies among states could signal that these Justices did not think it was terribly important, but the remark does not transform a dictum into a holding and does not mean that every variation is so benign as to be "not constitutionally relevant." Haskell, No. 10–15152, 2014 WL 1063399 (9th Cir. Mar. 20, 2014) (Smith, J., concurring).
  8. Nat'l Inst. of Justice, DNA Sample Collection from Arrestees, Dec. 7, 2012,
  9. C-SPAN, Haskell v. Harris Oral Arguments, Dec. 9, 2013, at 6 min. 34 sec.,
  10. Erin Murphy, License, Registration, Cheek Swab: DNA Testing and the Divided Court, 127 Harv. L. Rev. 161 (2013).

Thanks to Hank Greely and Erin Murphy for emails on these latest opinions in Haskell.
Previous postings on Haskell v. Harris
Previous postings on the opinions in Maryland v. King
  • Maryland v. King No. 1: Quick Thoughts, June 3, 2013,
  • Maryland v. King No. 2: Was There a Search?, June 7, 2013,
  • Maryland v. King: Interlude, June 9, 2013,
  • Maryland v. King No. 3: Bertillonage as Precedent, June 12, 2013,
  • Maryland v. King: A Digression on Ellipses, Actual Innocence, and Dr. Mengele, June 13, 2013,
  • Maryland v. King: “Quite a Worldview”, June 15, 2013,
  • Maryland v. King: The Tenth Justice (Stevens) Votes, June 15, 2013,
  • Maryland v. King: When Being Smart and Witty Is Not Enough, Nov. 27, 2013,
  • Maryland v. King: The Dissent's Ten Second Rule, Nov. 29, 2013,
  • Blast Off for King from Florida's Space Belt? Not Quite, Feb. 26, 2014,

Saturday, March 15, 2014


According to Wikipedia, "MDNA may refer to
-Mitochondrial DNA (mDNA or mtDNA), the DNA located in organelles called mitochondria
-MDNA (album), a 2012 album by Madonna
-MDNA Tour, 2012 concert tour by Madonna."
Additional research reveals an unexpected relationship between the first and third expansions of the acronym. If Madonna has anything to say about it, her fans seeking unusual souvenirs will have neither mDNA nor any other DNA from the aging pop star on the MDNA tour. She has a "sterilization team" to extirpate any DNA in her dressing room after shows. In fact, the team is concerned with much more than DNA. They remodel the dressing room to include "fake ceilings and fake walls, so they can ensure that no one has hidden a camera somewhere." [1] No "genetic exceptionalism" here.

I have heard that the Secret Service collects the plates, silverware, and drinking glasses or cups the President uses when he is on tour.1/ How about the rest of us? Do we have a reasonable expectation that police will not collect our shed DNA? No court has held that the investigative technique is a search within the meaning of the Fourth Amendment.

  1. The newsletter, DNA: Focus, available from the ACLU of Vermont at, attributes this claim "to the British newspaper, The Sunday Mirror," but a quick web search failed to confirm that the Sunday Mirror or any other publication has made such a statement.
  1. Bang Showbiz, Madonna Has DNA Cleaning Team for Tour, Winnipeg Free Press, June 22, 2012
Related postings
Keywords: Abandoned DNA, shed DNA, Madonna

A "Ridiculous" Fourth Amendment Argument in the Grim Sleeper Case?

On January 7, Los Angeles Superior Court Judge Kathleen Kennedy dismissed as "specious and ridiculous" one argument from the alleged "Grim Sleeper" serial killer Lonnie Franklin Jr. [1] According to Mr. Franklin's lawyers, the police violated his Fourth Amendment right to be free from unreasonable searches and seizures when they surreptitiously acquired and analyzed DNA that he left on his plate and utensils at a restaurant.

This is not the first notorious case in which Judge Kennedy has participated. In the prosecution of O.J. Simpson, when she was a municipal judge, she initially limited investigators to 10 hairs from Mr. Simpson's head for microscopic comparisons to hairs found in a blue knit cap lying near the bodies of Nicole Brown Simpson and Ronald Goldman. That "surreal" ruling reflected a lack of understanding of hair comparison protocols. [2, p. 230] However, the Grim Sleeper ruling is more mainstream. No court has treated collecting shed or inadvertently abandoned DNA as a search [3, p. 454]

Apparently, investigators did not want to alert Mr. Franklin that he was suspected of the long series of rapes and murders attributed to the Grim Sleeper. They had a police officer pose as a busboy at John's Incredible Pizza, where Franklin was attending a birthday party. Franklin argued that the officer-busboy cleared his plates — first pizza and then chocolate cake — before he had finished eating. and that this poor service made the collection unconstitutional.

One might not think much would turn on how close Franklin was to completing his repast. From time to time, I have had to tell an eager waiter reaching for my plate to wait -- I am not yet done. If a customer does not speak up, how can he be said to have a protected property interest in the plate, an interest that might trigger Fourth Amendment protection under United States v. Jones, 132 S.Ct. 945 (2012)? Moreover, if a failure to allow the restaurant patron time to eat all he wants is the source of the Fourth Amendment violation, the inevitable discovery exception to the warrant requirement could render the matter academic.

However, Franklin also claimed that he had a reasonable expectation that his plates would be thrown into a pile with others, making his DNA unavailable for testing. This is precisely the argument that the Supreme Court rejected in a questionable opinion in California v. Greenwood, 486 U.S. 35 (1988). In that case, police acquired sealed, plastic bags of trash that their suspect placed on the curb for municipal pickup. Greenwood argued that he expected that the bags would be mixed up with the other garbage in the neighborhood, preserving his privacy interest in the contents of his bags. But the majority of the Court deemed this expectation unreasonable because marauding dogs or curious people might go through the bags before the garbage truck arrived.

Even if that reasoning is convincing, however, the burden on the diner to take other steps to protect his DNA from inspection seems greater than that which Greenwood imposes on people to dispose of some parts of their trash privately. Judge Kennedy reportedly reasoned that "If [Franklin] were really concerned about such things, he would not eat or he would take his trash with him." [1] Is that the kind of world we want to have — one in which people who wish to keep their DNA to themselves must bring their own silverware, plates, and trash bags to restaurants or stay at home for all meals?

Thus, I think that the Fourth Amendment status of police collection of certain forms of shed or discarded DNA is a closer question that the caselaw suggests. There is a plausible argument that at least some surreptitious DNA collection from suspects amounts to a "search." Accepting this argument would not necessarily make this mode of DNA collection and analysis impermissible, for not all searches are unreasonable. But it would require more analysis of the individual and state interests at stake.

  1. Paresh Dave, Grim Sleeper: Judge Allows DNA Evidence Gathered at Restaurant, Los Angeles Times, Jan. 7, 2014
  2. David H. Kaye, The Double Helix and the Law of Evidence (2010)
  3. Albert E. Scherr, Genetic Privacy and the Fourth Amendment: Unregulated Surreptitious DNA Harvesting, 47 Ga. L. Rev. 445 (2013)
Related postings
  • MDNA, Forensic Science, Statistics, and the Law, Mar. 15, 2014
Key words: Abandoned DNA, Fourth Amendment, Surreptitious DNA collection, Greenwood, Franklin, Grim Sleeper, Kennedy, Los Angeles