The Newest from the Ninth Circuit on Arrestee DNA Databases

As of today, the Ninth Circuit Court of Appeals has twice upheld the constitutionality of DNA collection before conviction (DNA-BC). The first opinion came in United States v. Pool, 621 F.3d 1213 (9th Cir. 2010). There, the panel applied a totality-of-the-circumstances balancing test to uphold the federal arrestee law. However, the full court promptly agreed to rehear the case en banc (thus vacating the opinion in Pool).

At that point, another challenge to DNA-BC was pending. Haskell v. Brown, 677 F.Supp.2d 1187 (N.D. Cal. 2009), was a class action brought to enjoin enforcement of the California Proposition that initiated DNA arrestee sampling in that state. Determining that this law was, on balance, constitutionally reasonable, District Judge Charles Breyer, denied the request for a preliminary injunction. Plaintiffs appealed this ruling.

With eleven Ninth Circuit judges stirring the pot in Pool, Haskell moved to the back burner. But then Pool pled guilty, and the en banc court dropped his case as moot. Pool, 659 F.3d 761 (9th Cir. 2011) (en banc). Hence, the Haskell panel returned to work.

Today the case boiled over with the release of the panel’s opinion. As in Pool, the court split 2-1 in favor of DNA-BC. The two judges in Haskell to side with the state were Milan D. Smith, Jr., and James Dale Todd, a senior district judge for the Western District of Kentucky. Judge William A. Fletcher wrote a sharp dissent. Judge Smith devoted much of his majority opinion to refuting Judge Fletcher’s dissent. As a preliminary matter, they disagreed over whether Friedman v. Boucher, 580 F.3d 847 (9th Cir. 2009), a previous Ninth Circuit case not even involving a DNA database forced the court’s hand here. Judge Smith correctly wrote that “very broad dicta” in the case did not compel any particular result in Haskell.

With the path cleared, Judge Smith asked whether the “totality of the circumstances” were such that DNA-DB under California law was “reasonable” within the meaning of the Fourth Amendment. Judge Fletcher disputed the use of this amorphous standard. On this issue, neither opinion is convincing. Time after time, in case after case, the Supreme Court has repeated an important mantra—full fledged searches and seizures intended to produce evidence of criminal conduct are per se unreasonable, regardless of the other circumstances, when they are undertaken without a warrant and when they do not fall within a categorical exception to this warrant requirement. E.g., Kentucky v. King, 131 S.Ct. 1849 (2011); City of Ontario v. Quon, 130 S.Ct. 2619 (2010); Katz v. United States, 389 U.S. 347, 357 (1967). Therefore, it will not do to state, as Judge Smith blandly did, that totality-of-the-circumstances balancing is the norm in Fourth Amendment cases. To the contrary, it is an anomaly that has been used only in two Supreme Court cases (for searches involving probationers or parolees). Upholding DNA-BC therefore requires showing that the program falls within an established exception—or recognizing a new exception to accommodate the acquisition of fingerprints, photographs, and now, DNA profiles for use in databases. The former move is possible but takes considerable effort. The latter would be the more candid and convincing mode of analysis.

But just as the Haskell majority’s leap to totality balancing is largely unjustified [update of June 16, 2013: The Supreme Court in Maryland v. King made an attempt to justify such balancing and used it to uphold a system of routine DNA sampling before conviction], the dissent’s theory of why DNA-BC is unconstitutional is groundless. According to dissenting Judge Fletcher, the Supreme Court held in Hayes v. Florida, 470 U.S. 811 (1985), and Davis v. Mississippi, 394 U.S. 721 (1969), that identifying information (fingerprints, in those cases) “may not be taken from an arrestee solely for an investigative purpose, absent a warrant or reasonable suspicion that the [information] would help solve the crime for which he was taken into custody.” This characterization overlooks the most critical facts in the cases and the explicit reasoning of the opinions. Justice White’s majority opinion in Hayes could not have been clearer in explaining that the cases simply hold “that transportation to and investigative detention at the station house without probable cause or judicial authorization together violate the Fourth Amendment.” 470 U.S. at 815. That the fingerprints were used for investigative purposes and not just to establish the true identities of the arrested suspects had nothing to do with the constitutional infirmity. “[T]he fingerprints ... were the inadmissible fruits of an illegal detention” (id. at 813) because “the police at that time were without probable cause for an arrest, there was no warrant, and [the suspects] had not consented to being taken to the station house.” Id. at 313-14. Not a single Justice dissented from this understanding of the issue. Yet, Judge Fletcher transformed the simple and unremarkable result in Hayes and Davis into a condemnation of all forms of DNA-BC. Judge Smith was kind to call this aggressive reading of the cases a “novel interpretation.”

The Haskell court also split on the outcome of the balancing test. The majority was quick to accept the state’s litany of interests in DNA-BC as weighty, whereas the dissent demanded more rigorous proof. Conversely, the dissent was quick to accept nonscientific speculations about the dangers of DNA profiles and the risks of misuse of retained DNA samples, whereas the majority was loath to invalidate today’s laws on the grounds that they might be misused or changed.

Further developments are likely in the Ninth Circuit. Of the six judges to vote in Haskell and Pool (three per case), two of them came from outside the circuit and sat by designation. Counting only the Ninth Circuit noses, the vote to uphold DNA-DB has been 2-2 — not exactly a stable alignment. Obviously, there is considerable turmoil among the Ninth Circuit judges, and an en banc order in Haskell seems probable.

Acknowledgments: Thanks to Jen Wagner for sending me a copy of today’s slip opinion in Haskell.

Cross-posted from The Double Helix Law Blog.

Government-sponsored Report on Latent Fingerprint Work in Criminal Investigation and Prosecution

From NIST's Office of Law Enforcement Standards (OLES), as posted on February 17, 2012: “Expert Working Group Reduces Human Error Analyzing Fingerprints.” Sounds great. So how has the group succeeded in reducing these errors? Alas, clicking on the link reveals that, as yet, the group has not prevented a single error, human or inhuman. But NIST has released a long overdue report prepared by an expert working group that it assembled and funded for an extended period.

The final 234-page report from the committee of 34 experts contains 34 recommendations to improve latent print examination in criminal investigations and in presentations of the findings to police, lawyers, judges, and juries. The committee believes that implementation of these recommendations eventually could reduce the incidence of errors in latent print work and in the understanding of the results. The recommendations are a kind of wish list with entries that range from studying how to test the vision of fingerprint analysts; to educating examiners “in the scientific method” and in probabilistic and statistical thinking; to creating “a culture” in which examiners can confess honest error without fear of punishment; to monitoring the day-to-day work and courtroom testimony; and to certification for all analysts and accreditation for all laboratories.

Lawyers will be interested in the admonishments in the report about insulating examiners from unnecessary extraneous information; contemporaneously documenting the thought processes of examiners; making complete reports available; and curbing exaggerated claims of conclusive identifications. Concluding that existing data does not permit reasonably accurate estimates of error rates in real-life fingerprint identifications, for example, the report insists that an “expert should not state that errors are inherently impossible or that a method inherently has a zero error rate.” Likewise, the report states that “latent print examiners should not report or testify, directly or by implication, to a source attribution to the exclusion of all others in the world.” However, the group of latent print examiners, forensic laboratory scientists and managers, psychologists, engineers, statisticians, and lawyers, was unable to agree on what statements should replace such well entrenched testimony.

Given these tensions and ambitions, will NIST's premature assertion that “Expert Working Group Reduces Human Error Analyzing Fingerprints” come true? One can only hope for the best.

--DH Kaye, Feb. 18, 2012

Irony: The NIST statement accompanying this report on error and human factors has errors of its own. The actual publication date was February 17, not February 9. Authors’ names are not always spelled correctly, and support staff are listed as authors. No doubt, this says something about human fallibility if not human factors.

Disclosure: The author of this note was a working group member and the editor of the report described here. See Expert Working Group on Human Factors in Latent Print Analysis, Latent Print Examination and Human Factors: Improving the Practice through a Systems Approach, Feb. 2012.

Genetic Geneology: Is Sarah Yarborough’s Killer a Mayflower Descendant?

In The Double Helix and the Law of Evidence, I remarked that “[s]urname prediction is a concept that has yet to be implemented in forensic science . . . ” (1, p. 211). Now, cold-case detectives investigating the 1991 rape and strangulation of a 16-year old girl in Seattle are looking for “a distant relative of Edward and Samuel Fuller, who crossed the Atlantic on the Mayflower in 1620 [and who] might even share their last name” (2).

Sarah Yarborough left home to take part in a dance-team competition one morning in December. She never returned. Six people had seen a man in his 20s, with shoulder-length blond hair, a trench coat and dark pants speaking with her or leaving a brushy area where her body was found. In the succeeding months, more than 3,000 tips poured in. DNA analysis excluded some suspects, but trawling offender DNA databases for an exact match produced no leads, and the killer remains unidentified.

Yet, other databases can be searched. “Genetic geneology databases” (3, p. 384) that use the paternally inherited Y-STR haplotypes that are of interest in anthropology are growing in popularity. Indeed, some are available on the web. At the suggestion of a scientist at the state crime laboratory, police turned to Identifinders of Huntington Beach, California. Presumably, the firm combed through the online databases to arrive at its conclusion that “there's a good chance the killer's last name is or was Fuller” (4) because “the killer is a descendant of Robert Fuller, who arrived in Salem, Mass., in 1630. Fuller was not himself on the Mayflower, but he was related to three passengers: Edward Fuller, as well as Edward Fuller's brother, Samuel, and 12-year-old son” (2).

The value (and accuracy) of this surmise remains to be seen. None of the tips the police received involve a Fuller (2), and many Fullers had nothing to do with that historic voyage. Moreover, the Mayflower Fullers may be multitudinous. After all, “there are tens of millions of people descended from the 102 passengers and about 25 crew members who arrived on the Mayflower . . .” (2).

Acknowledgment: Thanks to Gene Johnson for telling me about the case.

References

1. David H. Kaye, The Double Helix and the Law of Evidence (2010).
   
2. Gene Johnson, Awkward Twist over DNA Link in Teen's Slaying, Seattle Times, Jan. 12, 2012
   
3. John M. Butler, Advanced Topics in Forensic DNA Typing: Methodology (2011).
   
4. Gene Johnson, Mayflower Relative Sought in '91 Wash. Killing, Seattle Post-Intelligencer, Jan. 11, 2012

Cross-posted from The Double Law Blog