Grand Jury Subpoenas for Newborn Screening Blood Spots

On July 10, the New Jersey Office of the Public Defender and the New Jersey Monitor sued the state department of health "to obtain redacted copies of [grand jury] subpoenas ... so that they can learn more about how the State Newborn Screening Laboratory has effectively turned into a warrantless DNA collection facility for State criminal prosecutions." \1/

New Jersey's neonatal screening program, like that in other states, uses a few drops of blood from the newborn’s heel to test "for certain genetic, endocrine, and metabolic disorders ... prior to discharge from a hospital or birthing center." \2/ The Department of Health explains that "[e]arly detection and treatment of the disorders on the newborn screening panel can prevent lifelong disabilities, including intellectual and developmental disabilities, and life threatening infections." \3/ Like many other states, New Jersey health officials retain a "Guthrie card" (named after Dr. Robert Guthrie, who in the 1960s, successfully championed mandatory screening laws for a metabolic disease that causes preventable intellectual disability). \4/

The complaint alleges that the Office of the Public Defender (OPD) "became alarmed" that State Police "are utilizing the residual blood spot samples" and that the health department rebuffed requests to provide information on subpoenas the department may have received from grand juries. The cause of the alarm is described as follows:

The State Police had re-opened an investigation into a “cold case” of sexual assault that had occurred in 1996 and had genetically narrowed the suspects to one of three brothers and their male offspring. ... [They] served a subpoena upon the Newborn Screening Laboratory in or about August 2021 to obtain residual dried blood spot samples that had been collected from a male newborn in or about June 2012.

To ascertain which family member was the suspect, the State Police sought the blood spot sample that was taken from an approximately nine-year-old child when he was a newborn to compare it to the DNA it had collected at the crime scene in 1996. The State Police successfully obtained the child’s blood spot sample, sequenced the DNA, and then ran further analysis utilizing a technique known as investigative genetic genealogy. The State Police alleges those results showed the newborn blood spot sample belonged to the genetic child of the suspect. From there, the State Police used those results to form the basis of an affidavit of probable cause to acquire a warrant to obtain a buccal swab from OPD’s client, who is the child’s father. OPD’s client was then criminally charged.

OPD further asserted "a significant interest in knowing how expansive this law enforcement practice is so that it may better represent its clients who may be subject to such warrantless searches." It did not explain how learning the number of subpoenas would improve its ability to defend any particular client.

The other plaintiff, the New Jersey Monitor, described itself as "the eyes and ears of the public [with] an interest in reporting to the public about this practice that violates basic concepts of genetic privacy."

The pleading claims that "law enforcement agencies are flouting search warrant requirements" and that "[b]ecause the Supreme Court of the United States and the New Jersey Supreme Court recognize that people have a right of privacy in their DNA and that the collection and analysis of that DNA is a search, a search warrant is generally required for such invasive actions."

I have not researched New Jersey jurisprudence, but I strongly doubt that the U.S. Supreme Court's opinions constitutionalize any free-floating "basic concepts of genetic privacy." \5/ The allegation of "subversion of the warrant requirement" of the Fourth Amendment presupposes that a warrant is required. That could be, but this question is not directly covered by Supreme Court precedent. It is the conclusion of what has to be a more complex legal argument. How might that argument go?

The Fourth Amendment declares that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause ... ." How do subpoenas for Guthrie cards come within this proscription? They are not quite seizures of any person or any person's papers or effects.

Are they searches of the person? Certainly, a physical intrusion into the body to extract blood would be, and the state has done that with a warrantless heel prick. But that search is constitutional because of an exception to the warrant-preference rule. The "special needs" exception allows the government to conduct searches and seizures to advance important government interests other than collecting information for criminal cases. Compulsory neonatal screening is an important public health program for providing early treatment or prevention of suffering and impairment. It predates DNA testing for identification (and DNA testing for disease, for that matter). New Jersey's legislation dates back to 1964. That grand jury subpoenas can be issued today to investigate a crime does not make the original search or seizure does not transform the original interference with bodily integrity into one that required probable cause. \6/

There is, however, a second search. The subpoena itself triggers Fourth Amendment protections -- but not to the extent of a physical entry to acquire information. The privacy and security interests are quite different, and the Supreme Court has held that the government may use an administrative subpoena to acquire documents so long as “the documents sought are relevant to the [investigation]” and the document request is “adequate, but not excessive,” for those purposes. \7/ Unlike the warrant process, a subpoena does not require probable cause.

At least, not normally. A Guthrie-card subpoena might be different. In Carpenter v. United States, \8/ the Supreme Court held that probable cause was required for the government to compel wireless carriers to produce time-stamped records of cell-site location information (CSLI) on a robbery suspect that had 12,898 location points cataloging his cell phone's movements over 127 days. Courts had issued orders for these business records in an FBI investigation into a series of robberies, under the Stored Communications Act, which merely requires "specific and articulable facts showing that there are reasonable grounds to believe that ... the records ... [sought] are relevant and material to an ongoing criminal investigation." \9/ Cause to believe that a record is relevant to an investigation is not probable cause to believe that the record is evidence of a suspect's criminal conduct. The majority opinion in Carpenter emphasized that CSLI records added up to (or will, in the near future, amount to) "a detailed chronicle of a person's physical presence compiled every day, every moment, over several years." \10/ As such, it held the relevance-based orders in question were unreasonable searches.

One can argue that the information that can be extracted from a DNA sample "implicates privacy concerns" at least as much as CSLI data. \11/ But the analogy requires attention to the kind of DNA information the government obtains (and the precautions it takes against other personal information being acquired from the DNA).

Until the blood is analyzed, no informational privacy is compromised. \12/ In the case mentioned in the complaint, the police "had genetically narrowed the suspects to one of three brothers and their male offspring." I would guess that they accomplished this by means of Y-STR typing combined with other leads. The police then obtained the Guthrie card for "an approximately nine-year-old child," "sequenced the DNA, and then ran further analysis utilizing a technique known as investigative genetic genealogy" to conclude that the child's "blood spot sample belonged to the genetic child of the suspect." 

It is difficult to discern what DNA testing was done. "Investigative genetic genealogy" normally involves comparisons of haploblocks from crime-scene DNA and DNA in genetic genealogy databases that are open to the public in order to pick possible relatives to the unknown person whose DNA was at the crime-scene. With those findings, ordinary genealogical research may produce a list of suspects. In the case mention in the complaint, police already had the list of suspects. Why perform the extensive haploblock analysis of "investigative genetic genealogy" if the three siblings and the child of one of them already are known? Would not comparing a number of autosomal STR loci not known to be medically informative have been able to show whether the child had a substantial probability of being the child of the man whose DNA was associated with the 1996 sexual assault that the police were investigating? That might be enough for probable cause for a court order compelling the implicated brother to provide a DNA sample for comparison to the one from the 1996 sexual assault. \13/

Of course, it can be argued that the particular loci the police actually used for the investigation hardly matter -- that the very fact that the sample contains medically relevant information that the police could acquire from the Guthrie card makes the case similar enough to the location tracking in Carpenter to require probable cause. In Carpenter, the FBI was only interested in associating the defendant's cell phone with towers near the robberies that were under investigation. Did they assemble detailed itineraries of Carpenter's movements at all other locations that he (or, more precisely, his phone) visited? Perhaps the mere fact that the many cell-site records were in their possession was enough. 

Yet, this argument resembles the one rejected in most cases on the constitutionality of forcing convicted offenders (or even arrestees) to surrender DNA for law-enforcement databases. Most judges, and the Supreme Court, rejected the argument that the potential to type all kinds of loci in itself required probable cause for collecting and profiling the DNA for identification only. \14/

None of this means that New Jersey's Guthrie-card subpoenas are clearly or even probably constitutional. I merely suggest that there could be more to the issue than the complaint alleges. Also, it seems worth noting that the exact connection between the the public records request and the constitutional issue is not entirely apparent. \15/

NOTES

     Thanks to Fred Bieber for news of the complaint.

1. N.J. Office of the Public Defender v. N.J. Dep't of Health, Civ. No. ___ (Complaint, July 10, 2022), available at https://www.theverge.com/2022/7/29/23283837/nj-police-baby-dna-crimes-lawsuit-public-defender.
2. Centers for Disease Control and Prevention, Newborn Screening Portal, Nov. 29, 2021, https://www.cdc.gov/newbornscreening/index.html.
3. N.J. Dep't of Health, Newborn Screening and Genetic Services, Feb. 10, 2022, https://www.nj.gov/health/fhs/nbs/.
4. Harvey L. Levy, Robert Guthrie and the Trials and Tribulations of Newborn Screening, 7(1) Int’l J. Neonatal Screening 5 (2021), available at https://doi.org/10.3390/ijns7010005.
5. Cf. Dobbs v. Jackson Women's Health Organization, No. 19–1392 (U.S. June 24, 2022), available at https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf.
6. Cf. Ferguson v. Charleston, 532 U.S. 67 (2001), available at https://scholar.google.com/scholar_case?case=12447804856380641716. Another exception is consent. Although consent for Fourth Amendment purposes is far less onerous than medical informed consent, the only grounds for refusal in New Jersey are religious. 26 N.J. Stat. Ann. § 26:2-111. So the consent exception does not apply.
7. Okla. Press Publ’g Co. v. Walling, 327 U.S. 186, 209 (1946) (upholding an FTC order for the production of a newspaper publishing corporation’s books and records as request was made pursuant to statute and was reasonably relevant). The Fifth Amendment privilege against self-incrimination offers protection when the act of production itself would be incriminating as an admission. E.g., United States v. Hubbell, 530 U.S. 27 (2000).
8. 138 S.Ct. 2206 (2018), available at https://scholar.google.com/scholar_case?case=14655974745807704559.
9. 18 U.S.C. § 2703(d).
10. Id. at 2220.
11. Id.
12. Cf. id. at 2266-67 (Gorsuch, J., dissenting and asking "Why is the relevant fact the seven days of information the government asked for instead of the two days of information the government actually saw? ... And in what possible sense did the government 'search' five days' worth of location information it was never even sent?").
13. See Maryland v. Pringle, 540 U.S. 366, 371-72 (2003) (finding probable cause for arresting three men in a car after finding $763 of rolled-up cash in the glove compartment and five plastic glassine baggies of cocaine were behind the back-seat armrest).
14. See David H. Kaye, Why So Contrived? DNA Databases After Maryland v. King, 104 J. Crim. L. & Criminology 535 (2014); David H. Kaye, A Fourth Amendment Theory for Arrestee DNA and Other Biometric Databases, 15 U. Pa. J. Const. L. 1095 (2013).
15. Whether accessing the Guthrie cards for criminal investigations is common or rare in New Jersey would not seem to affect the legality of the subpoenas. Of course, the extent of the access should be a matter of public concern, and widespread law enforcement use of the cards could prompt legislation to curtail the practice. But that is so whether or not the alleged invasions of "genetic privacy" are constitutional. Still, uncovering a widespread practice that is not only of general public interest, but also illegal, might add weight to the case for public disclosure under a balancing test for such disclosure. In that event, the allegations of unconstitutionality would not be superfluous to the complaint. Nonetheless, if the  opinions on the state and federal law of search and seizure are overly rhetorical, one might wonder whether they go beyond a simple "statement of the facts on which the claim is based." Rules Governing the Courts of the State of New Jersey, Rule 4:5-2, available at https://www.njcourts.gov/attorneys/assets/rules/r4-5.pdf.

Wikimedia v. NSA: It's Classified!

The National Security Agency (NSA) engages in systematic, warrantless "upstream" surveillance of Internet communications that travel in and out of the United States along a "backbone" of fiber optic cables. The ACLU and other organizations maintain that Upstream surveillance is manifestly unconstitutional. Whether or not that is correct, the government has stymied one Fourth Amendment challenge after another on the ground that plaintiffs lacked standing because they cannot prove that the surveillance entails intercepting, copying, and reviewing any of their communications. Of course, the reason plaintiffs have no direct evidence is that the government won't admit or deny it. Instead, the government has asserted that the surveillance program is a privileged state secret, classified its details, and resisted even in camera hearings in ordinary courts.

In Wikimedia Foundation v. National Security Agency, 857 F.3d 193 (4th Cir. 2017), however, the Court of Appeals for the Fourth circuit held that the Wikimedia Foundation, which operates Wikipedia, made "allegations sufficient to survive a facial challenge to standing." Id. at 193. The court concluded that Wikimedia's allegations were plausible enough to defeat a motion to dismiss the complaint because

Wikimedia alleges three key facts that are entitled to the presumption of truth. First, “[g]iven the relatively small number of international chokepoints,” the volume of Wikimedia's communications, and the geographical diversity of the people with whom it communicates, Wikimedia's “communications almost certainly traverse every international backbone link connecting the United States with the rest of the world.”

Second, “in order for the NSA to reliably obtain communications to, from, or about its targets in the way it has described, the government,” for technical reasons that Wikimedia goes into at length, “must be copying and reviewing all the international text-based communications that travel across a given link” upon which it has installed surveillance equipment. Because details about the collection process remain classified, Wikimedia can't precisely describe the technical means that the NSA employs. Instead, it spells out the technical rules of how the Internet works and concludes that, given that the NSA is conducting Upstream surveillance on a backbone link, the rules require that the NSA do so in a certain way. ...

Third, per the PCLOB [Privacy and Civil Liberties Oversight Board] Report and a purported NSA slide, “the NSA has confirmed that it conducts Upstream surveillance at more than one point along the [I]nternet backbone.” Together, these allegations are sufficient to make plausible the conclusion that the NSA is intercepting, copying, and reviewing at least some of Wikimedia's communications. To put it simply, Wikimedia has plausibly alleged that its communications travel all of the roads that a communication can take, and that the NSA seizes all of the communications along at least one of those roads. 

Id. at 210-11 (citations omitted).

The Fourth Circuit therefore vacated an order dismissing Wikimedia's complaint issued by Senior District Judge Thomas Selby Ellis III, the self-described "impatient" jurist who achieved later notoriety and collected ethics complaints (that were rejected last year) for his management of the trial of former Trump campaign manager Paul Manafort.

On remand, the government moved for summary judgment. Wikimedia Found. v. Nat'l Sec. Agency/Cent. Sec. Serv., 427 F.Supp.3d 582 (D. Md. 2019). Once more, the government argued that Wikimedia lacked standing to complain that the Upstream surveillance violated its Fourth Amendment rights. It suggested that the "plausible" inference that the NSA must be "intercepting, copying, and reviewing at least some of Wikimedia's communications” recognized by the Fourth Circuit was not so plausible after all. To support this conclusion, it submitted a declaration of Henning Schulzrinne, a Professor of Computer Science and Electrical Engineering at Columbia University. Dr. Schulzrinne described how companies carrying Internet traffic might filter transmissions before copying them by “mirroring” with “routers” or “switches” that could perform “blacklisting” or “whitelisting” if the NSA chose to give the companies information on its targets with which to create “access control lists.”

But Dr. Schulzrinne supplied no information and formed no opinion on whether it was at all likely that the NSA used the mirroring methods that he envisioned, and Wikimedia produced a series of expert reports from Scott Bradner, who had served as Harvard University’s Technology Security Officer and taught at that university. Bradner contended that the NSA could hardly be expected to give away the information on its targets and concluded that it is all but certain that the agency intercepted and opened at least one of Wikimedia's trillions of Internet communications.

The district court refused to conduct an evidentiary hearing on the factual issue. Instead, it disregarded the expert's opinion as inadmissible scientific evidence under Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993), because no one without access to classified information could "know what the NSA prioritizes in the Upstream surveillance program ... and therefore Mr. Bradner has no knowledge or information about it." Wikimedia, 427 F. Supp. 3d at 604–05 (footnotes omitted).

This reasoning resembles that from Judge Ellis's first opinion in this long-running case. In Wikimedia Found. v. Nat'l Sec. Agency, 143 F. Supp. 3d 344, 356 (D. Md. 2015), the judge characterized Wikimedia’s allegations as mere “suppositions and speculation, with no basis in fact, about how the NSA” operates and maintained that it was impossible for Wikimedia to prove its allegations “because the scope and scale of Upstream surveillance remain classified . . . .” Id. Rather than allow full consideration of the strength of the evidence that makes Wikimedia’s claim plausible, the district court restated its position that “Mr. Bradner has no [direct] knowledge or information” because that information is classified. Wikimedia, 427 F. Supp. 3d at 604–605.

In a pending appeal to the Fourth Circuit, Edward Imwinkelried, Michael Risinger, Rebecca Wexler, and I prepared a brief as amici curiae in support of Wikimedia. The brief expresses surprise at “the district court’s highly abbreviated analysis of Rule 702 and Daubert, as well as the court’s consequent decision to rule inadmissible opinions of the type that Wikimedia’s expert offered in this case.” It describes the applicable standard for excluding expert testimony. It then argues that the expert’s method of reasoning was sound and that its factual bases regarding the nature of Internet communications and surveillance technology, together with public information on the goals and needs of the NSA program, were sufficient to justify the receipt of the proposed testimony.

UPDATE (9/27/21): On 9/15/21, the Fourth Circuit affirmed the summary judgment order -- but not on the basis of Judge Ellis's theories about expert testimony. A divided panel reasoned that the suit had to be dismissed because the government had properly invoked the state secrets privilege and that because the government would have to disclose those secrets to defend itself, “further litigation would present an unjustifiable risk of disclosure.” Wikimedia Found. v. Nat'l Sec. Agency/Cent. Sec. Serv., 14 F.4th 276 (4th Cir. 2021).

Junk DNA (Literally) in Virginia

The Washington Post reported yesterday on a motion in Alexandria Circuit Court to suppress "all evidence flowing from the warrantless search of [Jesse Bjerke's] genetic profile." 1/ Mr. Bjerke is accused of raping a 24-year-old lifeguard at gunpoint at her home after following her from the Alexandria, Va., pool where she worked. She "could describe her attacker only as a thin man she believed was 35 to 40 years old and a little over 6 feet tall." 2/ Swabs taken by a nurse contained sperm from which the Virginia Department of Forensic Sciences obtained a standard STR profile.

Apparently, the STR profile was in neither the Virginia DNA database not the national one (NDIS). So the police turned to the Virginia bioinformatics company, Parabon Labs, which has had success with genetic genealogy searches of the publicly available genealogy database, GEDmatch. Parabaon reported that

[T]he subject DNA file shares DNA with cousins related to both sides of Jesse's family tree, and the ancestral origins of the subject are equivalent to those of Jesse. These genetic connections are very compelling evidence that the subject is Jesse. The fact that Jesse was residing in Alexandria, VA at the time of the crime in 2016 fits the eyewitness description and his traits are consistent with phenotype predictions, further strengthens the confidence of this conclusion.

Recognizing the inherent limitations in genetic genealogy, Parabon added that

Unfortunately, it is always possible that the subject is another male that is not identifiable through vital records or other research means and is potentially unknown to his biological family. This could be the result if an out-of-wedlock birth, a misattributed paternity, an adoption, or an anonymous abandonment.

The motion suggests that the latter paragraph, together with the firm's boiler-plate disclaimer of warranties and the fact that the report contains hearsay, means that police lacked even probable cause to believe that the sperm came from the defendant. This view of the information that the police received is implausible, but regardless of whether "the facts contained in the Parabon report do not support probable cause," 3/ the police did not use the information either to arrest Mr. Bjerke immediately or to seek a warrant to compel him to submit to DNA sampling. Instead,

Police began following Bjerke at his home and the hospital where he worked as a nurse. They took beer bottles, soda cans and an apple core from his trash. They tracked him to a Spanish restaurant ... and, after he left, bagged the straws he had used.

The DNA could not be eliminated as a match for the sperm from the rape scene, a forensic analysis found, leading to Bjerke’s indictment and arrest in February. With [a] warrant, law enforcement again compared his DNA with the semen at the crime scene. The result: a one in 7.2 billion chance it was not his. 4/

A more precise description of the "one in 7.2 billion chance" is that if Mr. Bjerke is not the source, then an arbitrarily selected unrelated man would have that tiny a chance of having the STR profile. The probability of the STR match given the hypothesis that another man is the source is not necessarily the same as the probability of the source given the match. But for a prior probability reflecting the other evidence so far revealed about Mr. Bjerke, there would not be much difference between the conditional probability the laboratory supplied and the article's transposed one.

Faced with such compelling evidence, Mr. Bjerke wants it excluded at trial. The motion states that

For the purposes of this motion, there are three categories of DNA testing. (1) DNA testing conducted before Jesse Bjerke was a suspect in the case; (2) DNA testing conducted without a warrant after Jesse Bjerke became a suspect in the case; and (3) DNA testing conducted with a warrant after Jesse Bjerke's arrest. This motion seeks to suppress all DNA evidence in categories two and three that relate to Jesse Bjerke.

An obstacle is the many cases -- not mentioned in the motion -- holding that shed or "abandoned" DNA is subject to warrantless collection and analysis for identifying features on the theory that the procedure is not a "search" under the Fourth Amendment. The laboratory analysis is not an invasion of Mr. Bjerke's reasonable expectation of privacy -- at least, not if we focus solely on categories (2) and (3), as the motion urges. This standard STR typing was done after the genetic genealogy investigation was completed. The STR profile (which the motion calls a "genetic profile" even though it does not characterize any genes) provides limited information about an individual. For that reason, the conclusion of the majority of courts that testing shed DNA is not a search is supportable, though not ineluctable. ("Limited" does not mean "zero.")

Indeed, most laboratory tests on or for traces from crimes are not treated as searches covered by the warrant and probable cause protections. Is it a search to have the forensic lab analyze a fingerprint from a glass left at a restaurant? Suppose a defendant tosses a coat in a garbage bin on the street, and the police retrieve it, remove glass particles, and analyze the chemical composition to see they match the glass from a broken window in a burglary? Did they need a warrant to study the glass particles?

The underlying issue is how much the constitution constrains the police in using trace evidence that might associate a known suspect with a crime scene or victim. When the analysis reveals little or nothing more than the fact of the association, I do not see much of an argument for requiring a warrant. That said, there is a little additional information in the usual STR profile, so there is some room for debate here.

However, this case might be even more debatable (although the defense motion does not seem to recognize it) because of category (1) -- the genetic genealogy phase of the case. The police, or rather the firm they hired to derive a genome-wide scan for the genetic genealogy, have much more information about Mr. Bjerke at their disposal. They have on the order of a million SNPs. In theory, Parabon or the police could inspect the SNP data for medical or other sensitive information on Mr. Bjerke now that he has been identified as the probable source of those sperm.

Nevertheless, I do not know why the police or the lab would want to do this, and it has always been true that once a physical DNA sample is in the possession of the police, the possibility exists for medical genetic testing using completely different loci. Testing shed DNA in that way should be considered a search. Bjerke is a step in that direction, but are we there yet?

The Post's online story has 21 comments on it. Not one supported the idea that there was a significant invasion of privacy in the investigation. These comments are a decidedly small sample that does not represent any clear population, but the complete lack of support for the argument that genetic genealogy implicates important personal privacy was striking.

NOTES

1. Defendant's Motion to Suppress, Commonwealth v. Bjerke, No. CF19000031 (Cir. Ct., Alexandria, Va. May 20, 2019).
2. Rachel Weiner, Alexandria Rape Suspect Challenging DNA Search Used to Crack Case, Wash, Post, June 10, 2019, at 1:16 PM.
3. Defendant's Motion, supra note 1.
4. Weiner, supra note 2.

RELATED POSTING

• Trawling Genealogy Databases and the Fourth Amendment: Part I, June 23, 2018, http://for-sci-law.blogspot.com/2018/06/trawling-genealogy-databases-and-fourth.html

ACKNOWLEDGMENT

• Thanks to Rachel Weiner for alerting me to the case and providing a copy of the defendant's motion.

The (Lack of) Meaning of the Supreme Court's Disposition of Raynor v. State

Yesterday, Popular Science reported that a “recent refusal by the Supreme Court means that involuntary DNA collection isn't unconstitutional.” This will come as a surprise to the Justices who voted to deny a writ of certiorari to the Maryland Court of Appeals in Raynor v. State, 99 A.3d 753 (Md. 2014).

Raynor is one of many cases in which courts have concluded that the Fourth Amendment prohibition against “unreasonable searches and seizures” does not apply to acquiring and testing naturally shed DNA. This particular case arose when, two years after a reported rape, the victim told police that she suspected Glenn Raynor had attacked her. Raynor agreed to come to a police station to answer questions. At the interview, he declined to provide a DNA sample, but after he left, police took swabs of the armrests of the chair in which had sat. The trial court denied his motion to suppress evidence of the incriminating match that followed, noting that “if he was so concerned about it, he should have worn a long sleeve shirt.” A conviction and a 100-year sentence of imprisonment followed.

According to the Popular Science article,

Raynor appealed the decision, saying the DNA evidence shouldn't have been used because it was collected without his consent. The appeal made it all the way up to the Supreme Court, which on Monday, the court announced [sic] that it would not hear the case. The Supreme Court did not comment on the denial—and to be fair, they get requests to hear a whole lot of cases every year and have to deny a majority of them—[but] their refusal to hear the case means they stand with the lower court’s majority opinion [which stated that]:

We hold that DNA testing of the 13 identifying junk loci within genetic material, not obtained by means of a physical intrusion into the person’s body, is no more a search for purposes of the Fourth Amendment, than is the testing of fingerprints, or the observation of any other identifying feature revealed to the public—visage, apparent age, body type, skin color.

In fact, the Supreme Court denies some 97% of the petitions it receives from private parties. Any first year law student knows that denying one of these 7,000 or so petitions does not mean that the Court “stand[s] with the lower court’s majority opinion.” It merely means that, for any number of possible reasons, four of the nine Justices did not vote to re-examine the case. In short, although police have been doing such testing time and again over the last twenty years or so, the U.S. Supreme Court has yet to approve — or disapprove — of the constitutionality of the practice.

References

• Raynor v. State, 99 A.3d 753 (Md. 2014)
• Lydia Ramsey, Your DNA Can Now Be Used Against You In Court Without Your Consent: A Recent Refusal by the Supreme Court Means That Involuntary DNA Collection Isn't Unconstitutional, Popular Sci., Mar. 4, 2015, 6:15pm.

Related posting

• Genetic Determinism and Essentialism on the Electronic Frontier, Feb. 24, 2015

Genetic Determinism and Essentialism on the Electronic Frontier

The latest bit of what, in the scientific world, is discredited genetic determinism, comes from the Electronic Frontier Foundation (EFF). This is not the first time the EFF has strayed from electronics to genetics, where it seems inclined to overstate scientific findings. 1/ Now the organization wants the Supreme Court to decide whether it is an unreasonable search or seizure for police, without probable cause and a warrant, to acquire and analyze shed DNA for identifying features that might link a suspect to a crime. That is a perfectly reasonable request, although, in the unlikely event that the Court takes this bait, making the case for a Fourth Amendment violation will not be easy.

What is less reasonable, indeed, what many geneticists and bioethicists regard as ill-advised, is to portray DNA as a map of “who we are, where we come from and who we will be.” 2/ My DNA is not who I am. It determines some things about me — my blood type, for example — but not my occupation, my interests, my skills, my criminal record, or my political affiliation. Yet, rather than simply point out that people have legitimate reasons to want to maintain the confidentiality of certain traits or risks that DNA analysis could reveal — such as an inherited form of Alzhiemer’s Disease — the EFF is concerned that “[r]esearchers have theorized DNA may also determine race, intelligence, criminality, sexual orientation, and even political ideology.” 3/

Of course, researchers have “theorized” almost everything at one time or another. And the prospect that police will collect DNA from a suspect surreptitiously to find out if he is a liberal Democrat or a conservative Republican seems a tad silly. Still, I was curious: Is there really a theory of how genes determine political ideology?

I turned to the news article in a 2012 issue of Nature cited by the EFF. 4/ Nothing in the article gives a theory of genetic determinism for political ideology. The article refers to twin studies that imply genetics plays some role in political behavior. There are some reports of candidate genes from studies that have “yet to be independently replicated.” 5/

As for a theory of how unknown genes might, to some degree, in some settings, influence political ideology, the theory is that some genes affect general attitudes or emotional reactions that could relate in some manner to political ideology. For example,

US conservatives may not seem to have much in common with Iraqi or Italian conservatives, but many political psychologists agree that political ideology can be narrowed down to one basic personality trait: openness to change. Liberals tend to be more accepting of social change than conservatives. ...

Theoretically, a person who is open to change might be more likely to favour gay marriage, immigration and other policies that alter society and are traditionally linked to liberal politics in the United States; personalities leaning towards order and the status quo might support a strong military force to protect a country, policies that clamp down on immigration and bans on same-sex marriage. 6/

These remarks are not a basis for a true friend of the Court to imply that political ideology might be a genetically determined phenotype. 7/

Notes

1. See David H. Kaye, Dear Judges: A Letter from the Electronic Frontier Foundation to the Ninth Circuit, Forensic Science, Statistics and the Law, Sept. 20, 2012.
2. Brief of Amicus Curiae Electronic Frontier Foundation in Support of Petitioner on Petition for a Writ of Certiorari, Raynor v. Maryland, No. 14-885, Feb. 18, 2015, at 2.
3. Id. (note omitted).
4. Lizzie Buchen, Biology and Ideology: The Anatomy of Politics, 490 Nature 466 (2012).
5. Id. at 466.
6. Id. at 468.
7. For a critical discussion of factual errors and distortions in Supreme Court amicus briefs generally, see Allison Orr Larsen, The Trouble with Amicus Facts, 100 Va. L. Rev. 1757 (2014).

Buza Reloaded: California Balancing

This is the fourth installment on Buza II, the opinion of the California court of appeal that invalidates the state's DNA-on-arrest law. It discusses the part of the opinion that argues that the balance the U.S. Supreme Court struck in Maryland v. King is either flatly wrong or wrong for California. In giving substantial weight to concerns over "familial searching" and the information content of DNA samples, the opinion assumes that it is appropriate to strike down a law that is constitutionally reasonable as currently implemented because future developments might make it unreasonable as then implemented. This premise is highly contestable.

Formally, the conclusion that California's DNA-BC (Before Conviction) law is unreasonable under the Fourth Amendment as it appears in the California Constitution does not imply that it is unreasonable under the Fourth Amendment as it exists in the U.S. Constitution. California is a sovereign state of the Union, and its courts can read different meanings into the words of its constitution. But many of the reasons the Buza II opinion gives for its conclusion—if correct—also apply to nearly all of the 25 or so DNA-BC laws on the books, and the opinion itself indicates that, in large part, the divergence between Buza II and King emanates from the California judges’ outright disagreement with the Supreme Court's balancing in King.

To begin with, the California judges complain that King “unjustifiably dismissed concerns about the extent of the personal information contained in DNA samples by limiting ... attention to the profile used in DNA databanks, as currently restricted by statutes and scientific capability.” One might expect that this observation immediately would be followed by the undeniable fact that the entirety of a person’s genome contains some medically significant information that would not otherwise be known, such as predispositions to certain diseases. Testing for these alleles (or for markers for them) would pose significant privacy issues (which is why such testing generally is prohibited without the individual’s consent).

But the opinion veers off into a superficial discussion about the CODIS profile itself. The problem, according to Buza II, is that the profile can be used not merely to identify an individual whose DNA is taken when he is arrested, but also sometimes can be used to identify a first-degree relative as a likely source (when the arrestee’s DNA is a close mismatch to the crime-scene sample). This “familial searching,” as the court calls it, is a “factor not relevant to identity,” and therefore “present[s] additional privacy concerns.”

The second part of this statement is true enough. Like a perfect match, a close mismatch is relevant to the identity of the DNA source, but it also reveals that the arrestee could be genetically related to the source of the crime-scene DNA. 1/ Consider the “Grim Sleeper” case of serial rapes and murders in the Los Angeles area, with years of apparent inactivity between some of the attacks. Trawls of the database proved fruitless—until Christopher Franklin was convicted of a felony. His DNA profile did not match the Grim Sleeper’s, but it lined up with it in a manner that would be expected if the two were father and son. This led investigators to Christopher’s father, Lonnie Franklin, Jr. In this way, Lonnie emerged as a suspect only because of his son’s conviction. (His DNA profile was not in the database because his arrests had occurred before California had a database.) Now he stands accused of ten murders.

People v. Franklin reveals an important fact about kinship trawling. In Franklin, it is difficult to discern the slightest “additional privacy concerns.” That Lonnie was Christopher’s father was a publicly known fact, not a private secret. Furthermore, Lonnie can hardly claim to have a legitimate Fourth Amendment interest in keeping secret the fact that it was his DNA that was found on or around murdered women. 

Of course, there could be other cases in which the familial relationship between the database inhabitant and the culprit was not known to one or both of the genetically related individuals. In such situations, the claim to a right to keep the genetic relationship secret is more plausible. But the existence of possible cases of this kind does not demonstrate that the occasional legitimate privacy interests that might be affected by the rare, "other-directed" trawls (that look for people outside of the database) outweigh those of the government.

In particular, for Mark Buza and his relatives to have an additional privacy interest compromised by the arresteee database, at least two conditions would have to be fulfilled. First, California would have to initiate other-directed trawls of its arrestee database. It has never done so, and it cannot do so under the policy its Department of Justice has adopted for such database trawling. This policy confines the other-directed trawling to convicted-offender databases. Second, Mark Buza would have to have publicly unknown first-degree relatives whose DNA profile would be close enough to Mark’s to implicate them in other crimes via a kinship match to Mark’s profile.

On its face, the first condition suggests that the parts of the opinion discussing “familial searching” are inapposite. Why strike down a law because of what could be but is not? Nonetheless, the Buza court’s sensitivity to the possibility of a change in the state’s DNA-BC practice might be seen as prescient rather than premature. From the outset, an argument against DNA databases has been mission creep. Once the database is established, the state will be tempted to use it for additional and more insidious purposes. To guard against this outcome, the argument goes, society should bind itself to the mast in anticipation of an irresistible siren song.

There are situations in which this self-disabling strategy is advisable. Indeed, much of the Bill of Rights constrains the majority from doing what seems expedient or appealing in the heat of the political moment. But it is not so clear that a handful of judges should block the democratic decision to allow DNA-BC to be used in acceptable ways that advance law enforcement on the ground that the system might be administered in unacceptable ways at some future time. If and when a jurisdiction combines other-directed trawling and DNA-BC, courts can consider whether that type of trawling is so serious an invasion of privacy as to render it unconstitutional. Cf. United States v. Knotts, 460 U.S. 276 (1983) ("if such dragnet type law enforcement practices as respondent envisions should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable."). Using the mere possibility of a correctable change in the allowed uses of the DNA data to strike down the collection and otherwise acceptable uses of the data seems Draconian.

Moreover, relying on future familial searching as a ground for striking down the system as currently implemented is inconsistent with Buza II’s effort to distinguish the Maryland practice. Presiding Justice Kline emphasized the existence of a Maryland statute banning familial searching. But as Chief Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Judicial Circuit tartly observed in oral argument in Haskell v. Harris (a separate case challenging California DNA-BC law), statutes can be changed too. The logic of Buza II—that databases that are constitutionally reasonable (as currently implemented) but might become unreasonable (as implemented in the future) are constitutionally unreasonable ab initio—would render the Maryland law on DNA-BC unconstitutional.

Despite these problems, Buza II applies the nip-it-in-the-bud reasoning not only to DNA profiles but also to samples. Displaying little knowledge of behavioral genetics, the court invokes “the pedophile gene” and “the violence gene” that, it imagines, might well be discovered some day. It predicts that “surely law enforcement will seek to mine genetic information for that ‘identification purpose.’” 
But there is no good reason to believe that the word “identification” as used in DNA-BC laws would permit predictive genetic testing for these behaviors, and the court makes no attempt to explain why such testing could not be condemned as constitutionally unreasonable if and when the time arises.

My criticism of the court of appeal's reliance on dystopic visions of the future is not based on naive faith in the goodness of police and law enforcement laboratories. Courts need not—and should not—trust law enforcement to exercise perfect self-restraint in investigative methods that easily can be abused. Before approving a DNA database system, they should satisfy themselves that sufficient safeguards against predictable abuses are in place. But if such protections are present, courts should not invalidate a system because the safeguards might be removed or might cease to be effective in the future. In this case, might does not make the decision right.

Note

1. Confusingly, the court presents this fact as if it "disproves the King majority’s assumption that 'the CODIS loci come from noncoding parts of the DNA that do not reveal the genetic traits of the arrestee.'" Some noncoding DNA does affect visible traits of an arrestee, but the CODIS loci, as far as current science can tell, do not reveal much about any phenotypes. Because all DNA sequences are inherited, however, including those that King (also confusingly) calls "junk," the ones that vary across individuals, can be used in kinship analysis. In fact, the sequences that do give rise to individual traits often are the best for this purpose because they tend to be extremely variable within populations.

References

• David H. Kaye, Why So Contrived? DNA Databases After Maryland v. King, 104 J. Crim. L. & Criminology 535 (2014)
• David H. Kaye, Maryland v. King: Per Se Unreasonableness, the Golden Rule, and the Future of DNA Databases, 127 Harv. L. Rev. Forum 39 (2013)
• David H. Kaye, The Genealogy Detectives: A Constitutional Analysis of “Familial Searching”, 51 Am. Crim. L. Rev. 109 (2013)
• Henry T. Greely & David H. Kaye, A Brief of Genetics, Genomics and Forensic Science Researchers in Maryland v. King, 53 Jurimetrics J. 43 (2013)

Closely related postings

• Buza Reloaded: Court Shifts Ground But Again Invalidates California’s DNA-on-arrest Law, Dec. 7, 2014
• Buza Reloaded: The Fourth Amendment Framework, Dec. 22, 2014
• Buza Reloaded: Fourth Amendment Balancing, Jan. 1, 2015
• The Constitutionality of DNA Collection Before Conviction: An Updated Scorecard, July 17, 2014
• The Impact of Medina's Marginal Balancing on DNA Databases and Sample Retention, July 16, 2014
• Kansas Court of Appeals Rejects Post-King Challenge to DNA Collection on Arrest, June 8, 2014
• What Is Wrong with People v. Lowe? More on DNA-on-Arrest Laws After Maryland v. King, March 24, 2014
• The Ninth Circuit's Minimal Opinion in Haskell v. Harris, March 22, 2014
• Get Serious: The US Department of Justice's Amicus Brief in Haskell v. Harris, December 6, 2013

Buza Reloaded: Fourth Amendment Balancing

This is the third installment on Buza II, the opinion of the California court of appeal that invalidates the state's DNA-on-arrest law. It comments on the court of appeal's treatment of the definition of a "search" and the court's claim that the reasons the Supreme Court gave in Maryland v. King for upholding post-arraignment DNA collection from Alonzo King are "completely inapplicable" to taking DNA from Mark Buza during booking.

Having described the scope of totality-of-the-circumstances balancing in exceedingly generous terms, Presiding Justice Kline turns to a logically prior Fourth Amendment question—should the DNA collection from Buza be considered a search under the Fourth Amendment? This definitional issue is a condition precedent to reasonableness balancing in that the state has no burden of showing reasonableness if it does not conduct a “search or seizure” within the meaning of the amendment.

Again, the court reaches the correct conclusion—of course there was a search—but the exposition raises some questions. Presiding Justice Kline wrote that

Nonconsensual extractions of substances that may be used for DNA profiling are “searches” entitled to the protection of the Fourth Amendment. (King, supra, 133 S.Ct. at p. 1969 [buccal swab]; Schmerber v. California (1966) 384 U.S. 757, 767-771 (Schmerber) [blood]; People v. Robinson, supra, 47 Cal.4th at p. 1119 [blood]; Skinner v. Railway Labor Executives’ Assn. (1989) 489 U.S. 602, 616-617 [breathalyzer and urine sample]; Cupp v. Murphy (1973) 412 U.S. 291, 295 [finger nail scrapings].) The physical intrusion involved in the buccal swab procedure used in the present case has been viewed as minimal. (King, at p. 1969.) The collection of the DNA sample, however, is only the first part of the search authorized by the DNA Act; the second occurs when the DNA sample is analyzed and a profile created for use in state and federal DNA databases. The latter search is the true focus of our analysis. (Brackets in original).

Most of this paragraph is gratuitous. Why not stop with the irrefragable proposition that King held that buccal swabbing is a search? Every Justice of the U.S. Supreme Court accepted this premise, and not one maintained that there was one search followed by another search. According to the King majority, "using a buccal swab on the inner tissues of a person's cheek in order to obtain DNA samples is a search" simply because "[v]irtually any intrusion into the human body will work an invasion of cherished personal security that is subject to constitutional scrutiny.” 133 S.Ct. at 1969 (internal quotations, citations, and alteration omitted).  “The ... intrusion [although] negligible ... is still a search as the law defines that term.” Id.

In contrast, whether trawling a database for a DNA match to the DNA profile derived from the sample acquired by the physical intrusion is a “latter search” is an open question. Federal appellate courts have reached different conclusions about it, and the King Court did not discuss it (despite the insistence of King’s counsel at oral argument that DNA analysis and trawling is a search in itself). To be sure, the nature of DNA profiling and trawling is “of central relevance,” King, 133 S.Ct. at 1969—but only on the distinct question of whether the search is reasonable. Id.

Before turning to that question, the Buza II court expressed some sympathy for Justice Scalia’s “piercing” dissent. This position is at odds with Presiding Justice Kline’s description of the Fourth Amendment as always accommodating balancing, since the entire theory of Justice Scalia’s dissent was that the reasonableness of DNA sampling on arrest is not to be determined by weighing individual and state interests, but by a putative categorical rule against certain suspicionless searches

Be that as it may, the Buza II court maintained that King’s “reasons for upholding the Maryland law [are] completely inapplicable to California’s.” That conclusion seems precipitous. There is ample room to debate the value of arrestee sampling and the significance of the differences of the Maryland and California statutes. Indeed, I have written that Justice Kennedy’s reasoning in King is “contrived,” but only because a candid approach to totality balancing (or, preferably in my view, toward creating a new categorical “biometric exception” to the general rule against warrantless searches) has to incorporate the power of DNA to solve cases and deter crimes sooner rather than later (or not at all). 1/

But surely King’s detention-related reasons for DNA testing cannot be dismissed as “completely inapplicable.” For example, Buza II cited the fact that whereas the California law covers all felony arrests, the Maryland law encompasses only arrests for “murder, rape, first-degree assault, kidnaping, arson, sexual assault, and a variety of other serious crimes.” King, 133 S.Ct. at 1967. The supposition that DNA from individuals arrested for nonviolent felonies is less likely to provide a link to an unsolved crime hardly means that the DNA is devoid of investigative value. Car theft is not a violent crime or a burglary, but at least some car thieves leave behind traces of DNA while committing more serious crimes

Furthermore, even the more sensible reasoning that arrestee DNA is, on average, less valuable to the state for some felonies than for others does not distinguish the demands the states made on the defendants in King and Buza. Mark Buza, after all, was caught committing arson—surely a serious crime. Why is the Buza court addressing the law as applied to a hypothetical person at another time? Under established Fourth Amendment doctrine, Buza was justifiably arrested for arson. As such, he lacks standing to assert the rights of individuals arrested for much less serious offenses. If it was constitutional to have compelled King to give a DNA sample—which is what the Supreme Court held—why is not equally constitutional to have ordered Buza to give a DNA sample? The answer cannot be that the Supreme Court in King was confronted a serious felony arrest. The court of appeal in Buza likewise was confronted with a serious felony arrest.

Indeed, the Buza opinion itself backs away from the extreme position that King’s reasoning is “completely inapplicable.” The court announces that it is not actually deciding the fundamental question of “whether these differences require a different resolution of the issue from that of the King majority.” It ends its Fourth Amendment analysis with more of a whimper than a bang, dismissing the entire issue: “Our conclusion that the DNA Act is invalid under article I, section 13, of the California Constitution renders it academic whether the Act is also invalid under the Fourth Amendment.” The court is convinced that the differences “significantly alter the weight of the governmental interests and privacy considerations to be balanced in determining constitutionality under the Fourth Amendment,” but it seems less certain that this alteration truly produces a different result.

To reach a different result, the Buza II court performs its own balancing under an unusually demanding balancing test. The next installment comments on this California balancing.

Note

1. David H. Kaye, Why So Contrived? DNA Databases After Maryland v. King, Journal of Criminal Law & Criminology, Vol. 104, No. 3, pp. 535-596, May 2014, available at http://ssrn.com/abstract=2376467

Closely related postings

• Buza Reloaded: Court Shifts Ground But Again Invalidates California’s DNA-on-arrest Law, Dec. 7, 2014
• Buza Reloaded: The Fourth Amendment Framework, Dec. 22, 2014
• Buza Reloaded: Fourth Amendment Balancing, Jan. 1, 2015
• Buza Reloaded: California Balancing, Jan. 4, 2015
• The Constitutionality of DNA Collection Before Conviction: An Updated Scorecard, July 17, 2014
• The Impact of Medina's Marginal Balancing on DNA Databases and Sample Retention, July 16, 2014
• Kansas Court of Appeals Rejects Post-King Challenge to DNA Collection on Arrest, June 8, 2014
• What Is Wrong with People v. Lowe? More on DNA-on-Arrest Laws After Maryland v. King, March 24, 2014
• The Ninth Circuit's Minimal Opinion in Haskell v. Harris, March 22, 2014
• Get Serious: The US Department of Justice's Amicus Brief in Haskell v. Harris, December 6, 2013
• The Oral Argument in Maryland v. King — Part IV, March 6, 2013

Buza Reloaded: The Fourth Amendment Framework

This is the second installment of remarks on Buza II, the opinion of the California court of appeal that invalidates the state's DNA-on-arrest law. It questions the opinion's expansive view of when "totality of the circumstances" balancing is appropriate under the Fourth Amendment

The Buza II court begins its legal analysis with the reasonableness clause of the Fourth Amendment. Omitting the clause that refers specifically to judicial warrants, the opinion tells us that "[t]he Fourth Amendment protects '[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures' . . . ." However, the court adds that "[s]ubject only to a few specifically established and well-delineated exceptions not applicable here, warrantless searches are per se unreasonable under the Fourth Amendment." Of course, if this were literally true, the case would be over, since California had no judicial warrant to compel Buza to submit to DNA extraction, and there was no "applicable exception." (The search-incident-arrest exception only permits warrantless searches for weapons or evidence that the arrestee might reach.)

The court of appeal apparently does not believe that there is a true per-se-unreasonable-with-exceptions (PSUWE) rule. Instead, it presents the absence of a warrant as a mere burden-shifting device.The state, it says, "thus bears the burden of showing that the search at issue is reasonable and therefore constitutional. (People v. Williams (1999) 20 Cal.4th 119,127.)" This interpretation cuts the heart out of the PSUWE rule and does not flow from People v. Williams. In Williams, the California Supreme Court wrote that when moving to suppress evidence, "defendants have the burden of (1) asserting the search or seizure was without a warrant, and (2) explaining why it was unreasonable under the circumstances." 83 Cal.Rptr.2d 275, 282 (Cal. 1999) (emphasis added). It seems odd to cite the case for the opposite proposition--that the burden is on the state.

But this questionable use of precedent is a minor sin. The more disturbing aspect of Buza II's exposition of the Fourth Amendment lurks in its view that a court always can find reasonableness "by examining the totality of the circumstances," which is to say, "by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests." The U.S. Supreme Court cases cited for this open-ended approach to reasonableness do not dilute the PSUWE rule to this degree.^1/

In fact, if the Buza II court's claim that every warrantless search can be saved by a finding of reasonableness under the circumstances were correct, the Supreme Court would not have had such a difficult time explaining in Maryland v. King why Maryland's pre-conviction DNA law was subject to a balancing test. Rather than announce that "we always balance," Justice Kennedy, writing for the majority, tried to weave together specific features of other cases departing from the PSUWE framework in favor of a direct balancing test. Whether the resulting tapestry is so poorly woven that it is about to unravel has been debated, ^2/ and Buza II misapprehends the but the Court itself has not officially abandoned the PSUWE framework. Indeed, soon after King, in holding that a warrantless search of a cellphone during an arrest was impermissible, the Court reiterated that "[i]n the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement," Riley v. California, 134 S.Ct. 2473, 2482 (2014), and demanded that "even when a cell phone is seized incident to arrest," id. at 2494, the police had better "get a warrant." Id. at 2495.

Although the Buza court is thus mistaken in its treatment of the threshold question of when direct, totality balancing is permissible, King does hold that a form of balancing is required for warrantless DNA swabbing. In the next installment, I will consider the court of appeal's effort to dismiss this balancing, as performed by the Supreme Court, as "completely inapplicable."

[Next installment]

Notes

1. See David H. Kaye, On the “Considered Analysis” of DNA Collection Before Conviction, 60 UCLA L. Rev. Disc. 104 (2013); David H. Kaye, Why So Contrived? DNA Databases After Maryland v. King, 104 J. Crim. L. & Criminology 535 (2014).
2. Compare Erin Murphy, License, Registration, Cheek Swab: DNA Testing and the Divided Court, 127 Harv. L. Rev. 161 (2013), with David H. Kaye, Maryland v. King: Per Se Unreasonableness, the Golden Rule, and the Future of DNA Databases, 127 Harv. L. Rev. Forum 39 (2013).

Closely related postings

• Buza Reloaded: Court Shifts Ground But Again Invalidates California’s DNA-on-arrest Law, Dec. 7, 2014
• Buza Reloaded: Fourth Amendment Balancing, Jan. 1, 2015 
• Buza Reloaded: California Balancing, Jan. 4, 2015
• The Constitutionality of DNA Collection Before Conviction: An Updated Scorecard, July 17, 2014
• The Impact of Medina's Marginal Balancing on DNA Databases and Sample Retention, July 16, 2014
• Kansas Court of Appeals Rejects Post-King Challenge to DNA Collection on Arrest, June 8, 2014
• What Is Wrong with People v. Lowe? More on DNA-on-Arrest Laws After Maryland v. King, March 24, 2014
• The Ninth Circuit's Minimal Opinion in Haskell v. Harris, March 22, 2014
• Get Serious: The US Department of Justice's Amicus Brief in Haskell v. Harris, December 6, 2013

Buza Reloaded: Court Shifts Ground But Again Invalidates California’s DNA-on-arrest Law

Buza I For the reasons we have set forth, we conclude that the DNA Act ... unreasonably intrudes on such arrestees' expectation of privacy and is invalid under the Fourth Amendment of the United States Constitution.

Buza II For the reasons we have set forth, we conclude that the DNA Act ... unreasonably intrudes on such arrestees’ expectation of privacy and is invalid under article I, section 13, of the [California] Constitution.

Nearly seven years ago, Mark Buza set a San Francisco police car on fire to protest what he said was a corrupt government. Spotted running from the burning car, he was promptly arrested and brought to the county jail. There, he engaged in a second act of defiance, refusing to allow police to swab the inside of his cheeks to acquire a DNA sample. (He did, however, acquiesce in fingerprinting and writing a signature.) After his conviction for arson-related crimes as well as the separate offense of refusing to submit to DNA sampling, a court ordered him to give a sample before sentencing. In a third act of resistance, he refused, but when the court issued a further order allowing police to use force, he finally submitted to the swabbing. His DNA profile entered the California database, apparently without incriminating him in any other crimes.

The California Court of Appeal reversed the conviction for resisting “the seizure of his DNA at a time when he was entitled to the presumption of innocence, and [when] there had been no judicial determination of probable cause to believe he committed the offense for which he was arrested ... .” California's DNA-collection law, the court reasoned, “violated his Fourth Amendment right to be free from unreasonable searches and seizures.” The court expressly declined to consider whether compelling DNA collection before a judicial finding of probable cause violated Buza’s “right to privacy under article I, section 1, of the California Constitution.”

The California Supreme Court granted review, vacated the appellate court’s judgment, and ordered that court to reconsider its reversal of the DNA-refusal conviction in light of the United States Supreme Court’s decision in Maryland v. King, 133 S.Ct. 1958 (2013).

In a lengthy opinion issued four days ago, the Court of Appeal, like Buza himself, stuck to its guns. For a second time, it held that the California initiative that mandates DNA sampling on arrest (and that has been upheld by several other courts) is unconstitutional. However, the court shifted ground. Now Presiding Justice Anthony Kline wrote: “we question whether King establishes the validity of the California Act’s application to arrestees under the Fourth Amendment. We base our decision, however, solely upon article I, section 13, of the California Constitution, which in our view undoubtedly prohibits the search and seizure at issue.” (Emphasis added.)

I’ll leave it to California’s bar, bench, and scholars to debate how and why the Court of Appeal can be so certain that California’s constitution, which essentially reproduces the words of the Fourth Amendment, compels a different result than King might warrant. Here, I want to consider the Court of Appeal's analysis of the outcome that should follow under the U.S. Constitution as construed in King.

[Next installment]

Closely related postings

• Buza Reloaded: The Fourth Amendment Framework, December 22, 2014
• Buza Reloaded: Fourth Amendment Balancing, January 1, 2015
• Buza Reloaded: California Balancing, January 4, 2015
• The Constitutionality of DNA Collection Before Conviction: An Updated Scorecard, July 17, 2014
• The Impact of Medina's Marginal Balancing on DNA Databases and Sample Retention, July 16, 2014
• Kansas Court of Appeals Rejects Post-King Challenge to DNA Collection on Arrest, June 8, 2014
• What Is Wrong with People v. Lowe? More on DNA-on-Arrest Laws After Maryland v. King, March 24, 2014
• The Ninth Circuit's Minimal Opinion in Haskell v. Harris, March 22, 2014
• Get Serious: The US Department of Justice's Amicus Brief in Haskell v. Harris, December 6, 2013

References

• People v. Buza, No. A125542 (Cal. Ct. App., 1st Dist., Dec. 3, 2014) (pdf)
• People v. Buza, 129 Cal.Rptr.3d 753 (Ct. App., 1st Dist., 2011), rev. granted, 262 P.3d 854 (Cal. 2011), vacated, 302 P.3d 1051 (Cal. 2013) (ordering reconsideration in light of Maryland v. King)
• David H. Kaye, Why So Contrived? DNA Databases After Maryland v. King, 104 J. Crim. L. & Criminology 535 (2014)
• David H. Kaye, Maryland v. King: Per Se Unreasonableness, the Golden Rule, and the Future of DNA Databases, 127 Harv. L. Rev. Forum 39 (2013)

The Constitutionality of DNA Collection Before Conviction: An Updated Scorecard

Note: This posting updates previous ones. It is current as of July 17, 2014.

Seventeen years ago, Louisiana adopted a law mandating that "[a] person who is arrested for a felony sex offense or other specified offense . . . shall have a DNA sample drawn or taken at the same time he is fingerprinted pursuant to the booking procedure." As of mid-2012, 28 states and the federal government had laws providing for DNA sampling before any conviction is obtained. Most other countries with DNA databases also collect samples on arrest.

The DNA-before-conviction (DNA-BC) laws in the U.S. had a placid childhood, with surprisingly few challenges to their constitutionality. In contrast to their older brother, laws mandating DNA collection after conviction (DNA-AC), which were upheld in scores of cases, DNA-BC laws provoked conflicting constitutional opinions.

In June 2013, after years of declining to review opinions on the constitutionality of DNA databases, the Supreme Court stepped in to decide whether the Maryland Court of Appeal erred in holding that collecting DNA samples as part of the booking process violated the Fourth Amendment.A sharply dividing Court held that Maryland's system of DNA sampling, testing, and database searching was not an unreasonable search under the Fourth Amendment.

This posting presents a scoreboard on the litigation and scholarly commentary to date. If any players or contests have been omitted, I hope that readers will correct those omissions by leaving a comment. The law review articles listed in the table do not include ones on DNA-AC. Authors who have contended that these databases are unconstitutional would reach the same conclusion for a database that includes arrestees, but the lower courts have resoundingly rejected their analyses. Therefore, little would be gained by keeping track of the many articles on convicted-offender databases.

The tables indicate that before the Supreme Court's opinion in Maryland v. King, there was no clear consensus among lower courts on the constitutionality of taking DNA samples during a custodial arrest (or at another point before conviction) with the intention of running database searches (in the absence of a warrant and probable cause to believe that the search will produce a hit in the database).

The Supreme Court's decision in King has not ended all constitutional challenges to DNA database laws. The lingering litigation concerns arguable distinctions between Maryland's statute and those of other jurisdictions and the effect of state constitutional provisions.

---

Table 1. Case law

Appellate: Supreme Court of the United States

• Maryland v. King, 133 S. Ct. 1958 (2013) (state law requiring testing after arraignment constitutional under totality-of-the-circumstances balancing test)

Appellate: State Supreme Courts (1.5-2.5)

• Mario W. v. Kaipio, Commissioner, 281 P.3d 476 (Ariz. 2012) (state arrestee law for juveniles constitutional insofar as it allows sampling as a booking procedure, but pre-conviction analysis of the sample is unconstitutional under a totality-of-the-circumstances standard and an analogy to searching containers)
• King v. State, 42 A.3d 549 (Md. 2012) (state law requiring testing after arraignment unconstitutional "as applied" under a totality-of-the-circumstances balancing test), rev'd sub nom. Maryland v. King, 133 S. Ct. 1958 (2013)
• Anderson v. Commonwealth, 650 S.E.2d 702 (Va. 2007) (state law constitutional under unspecified balancing test and analogy to fingerprinting as a booking procedure)
• State v. Medina, 2014 VT 69 (state law violates state constitution under a restricted version of the special-needs balancing test)
• Related case: State v. Franklin, 76 So.3d 423 (La. 2011) (no search warrant required to take a DNA sample from a murder defendant for use in the murder investigation because he had to submit a sample "as a routine incident of booking" anyway)

Appellate: State Intermediate Courts (opinions not reviewed by higher courts) (2-2)

• People v. Buza, 197 Cal.App.4th 1424 (Cal. Ct. App. 2011) (state law unconstitutional under balancing tests), rev. granted, 262 P.3d 854 (Cal. 2011), vacated and remanded for reconsideration in light of Maryland v. King, 302 P.3d 1051 (Cal. 2013)
• People v. Lowe, 165 Cal.Rptr.3d 107 (Cal. Ct. App. 2013) (state law constitutional under "totality" balancing test), rev. granted, 320 P.3d 799 (Cal. 2014)
• State v. Biery, 318 P.3d 1020, 2014 WL 802100 (Kan. Ct. App. 2014) (unpublished) (state law constitutional under Fourth Amendment as construed in Maryland v. King and under state constitution)
• In re Welfare of C.T.L., 722 N.W.2d 484 (Minn. Ct. App. 2006) (state arrestee law unconstitutional as per se unreasonable without probable cause and a warrant)

Appellate: Federal Courts (3-0)

• United States v. Mitchell, 652 F.3d 387 (3d Cir. 2011) (en banc) (federal arrestee law constitutional under "totality of circumstances" balancing test)
• Haskell v. Harris, 669 F.3d 1049 (9th Cir. 2012) (state arrestee law constitutional under totality-of-the-circumstances balancing test), vacated by grant of rehearing en banc, 686 F. 3d 1121 (9th Cir. 2012), aff'd as to denial of preliminary injunction, 745 F. 3d 1269 (9th Cir. 2014) (en banc)
• United States v. Pool, 621 F.3d 1213 (9th Cir. 2010) (federal arrestee law constitutional under "totality of circumstances" balancing test), vacated as moot, 659 F.3d 761 (9th Cir. 2011) (en banc)
• Related case: Friedman v. Boucher, 580 F.3d 847 (9th Cir. 2009) (an arrest does not justify DNA sampling without an applicable statute)

Trial Courts: Federal (not reviewed by higher courts) (4-1)

• United States v. Thomas, No. 10-CR-6172 CJS, 2011 WL 1627321 (W.D.N.Y. Apr. 27, 2011) (federal arrestee law constitutional under "special needs" balancing test), dismissed, No. 11-1742 (2d Cir. Sept. 20, 2011), ECF No. 43
• United States v. Demasi, Crim. No. 12–197, 2013 WL 24818 (W.D.Pa. Jan. 2, 2013) (federal  law constitutional applying Mitchell)
• United States v. Robinette, No. 13–CR–0003 AWI BAM, 2013 WL 211112 (E.D.Cal. Jan. 18, 2013) (federal law constitutional at least until the Supreme Court rules in King v. Maryland)
• Amended Order Denying the Government's Motion to Compel DNA Samples, United States v. Frank, No. CR-092075-EFS-1(E.D. Wash. Mar. 10, 2010), available at http://www.dnaresource.com/documents/USvFrank.pdf (applying totality balancing to a limited list of interests to find compulsory collection before conviction unconstitutional)
• United States v. Fricosu, No. 10-cr-00509-REB-01 (D. Colo. Feb. 22, 2012) (federal law constitutional under totality standard), available at http://www.denverda.org/DNA_Documents/Arrestee_Database/Fricosu.pdf.
• Related case: United States v. Purdy, No. 8:05CR204, 2005 WL 3465721 (D. Neb. 2005) (forcibly taking a buccal swab from an arrestee violates Fourth Amendment in the absence of a statute providing for a uniform and limited system of sampling)

Trial Courts: Federal (reviewed by higher courts) (2-1)

• United States v. Mitchell, 681 F.Supp.2d 597 (W.D.Pa. 2009) (federal law held unconstitutional), rev'd, 652 F.3d 387 (3d Cir. 2011) (en banc)
• United States v. Pool, 645 F.Supp.2d 903 (E.D.Cal. 2009) (federal arrestee law constitutional under "totality of circumstances" balancing test), aff'd, 621 F.3d 1213 (9th Cir. 2010), affirming opinion vacated as moot, 659 F.3d 761 (9th Cir. 2011) (en banc)
• Haskell v. Brown, 677 F.Supp.2d 1187 (N.D. Cal. 2009) (denying a preliminary injunction against the enforcement of California's arrestee sampling law in large part because the balance of interests establishes that the requirement is constitutional), aff'd sub nom. Haskell v. Harris, 669 F.3d 1049 (9th Cir.), reh'g en banc granted, 686 F.3d 1121 (9th Cir. 2012), aff'd, 745 F. 3d 1269 (9th Cir. 2014) (en banc)

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Table 2. Law Review Articles and Notes
Faculty and Professional Authors

• D.H. Kaye, The Constitutionality of DNA Sampling on Arrest, 10 Cornell J.L. & Pub. Pol'y 455-508 (2001) (a statute with sufficient protections to confine the government to identifying information is constitutional under the special needs exception)
• Tracey Maclin, Is Obtaining an Arrestee's DNA a Valid Special Needs Search Under the Fourth Amendment? What Should (and Will) the Supreme Court Do?, 34 J.L. Med. & Ethics 165, 178-82 (2006) (predicting that the Supreme Court will uphold taking DNA from arrestees under a balancing test but stating that it should reject the practice as per se unreasonable)
• D. 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) (proposing a "biometric information exception" to the warrant requirement)
• Brian Gallini, Step Out of the Car: License, Registration, and DNA Please, 62 Ark. L. Rev. 475 (2009) (Arkansas law unconstitutional because it does not require a judicial finding of probable cause arrest, contains inadequate safeguards to protect the samples and records, and because it does not fall within an established exception to the warrant requirement)
• Kevin Lapp & Joy Radice, A Better Balancing: Reconsidering Pre-Conviction DNA Extraction from Federal Arrestees, 90 N. Car. L. Rev. Addendum 157 (2012) (pre-conviction DNA extraction should be permitted only after a neutral third-party finding of probable cause and DNA samples should be destroyed)
• Michael J. Crook, Sacrificing Liberty for Security: North Carolina's Unconstitutional Search and Seizure of Arrestee DNA, 34 Campbell L. Rev. 473 (2012)
• David H. Kaye, Drawing Lines: Unrelated Probable Cause as a Prerequisite to Early DNA Collection, 91 N.C. L. Rev. Addendum 1 (2012) (a formal finding of probable cause for an unrelated arrest is not constitutionally required)
• David H. Kaye, On the "Considered Analysis" of DNA Collection Before Conviction, 60 UCLA L. Rev. Discourse 104 (2013)
• David H. Kaye, A Fourth Amendment Theory for Arrestee DNA and Other Biometric Databases, 15 U. Pa. J. Const. L.  1095 (2013)
• Henry T. Greely & David H. Kaye, A Brief of Genetics, Genomics and Forensic Science Researchers in Maryland v. King, 54 Jurimetrics J. 43 (2013)
• Elizabeth E. Joh, Maryland v. King: Policing and Genetic Privacy, 11 Ohio St. J. Crim. L. 281 (2013)
• Andrea Roth, Maryland v. King and the Wonderful, Horrible DNA Revolution in Law Enforcement, 11 Ohio St. J. Crim. L. 295 (2013)
• Erin Murphy, License, Registration, Cheek Swab: DNA Testing and the Divided Court, 127 Harv. L. Rev. 161 (2013)
• David H. Kaye, Maryland v. King: Per Se Unreasonableness, the Golden Rule, and the Future of DNA Databases, 127 Harv. L. Rev. Forum 39 (2013)
• Jessica D. Gabel, Indecent Exposure: Genes Are More than a Brand Name Label in the DNA Database Debate, 42 U. Balt. L. Rev. 561 (2013)
• Rana Santos, Why DNA Databasing Is Good for Maryland: A DNA Analyst's Perspective, 42 U. Balt. L. Rev. 591 (2013)
• Tracey Maclin, Maryland v. King: Terry v. Ohio Redux, 2013 Sup. Ct. Rev. 359
• David H. Kaye, Why So Contrived? DNA Databases After Maryland v. King, 104 J. Crim. L. & Criminology (forthcoming Aug. 2014), draft available at http://ssrn.com/abstract=2376467 
• Related article: Robert Molko, The Perils of Suspicionless DNA Extraction of Arrestees Under California Proposition 69: Liability of the California Prosecutor for Fourth Amendment Violation? The Uncertainty Continues in 2010, 37 W. St. U. L. Rev. 183 (2010) (reaching no conclusions)

Student

• Martha L. Lawson, Note, Personal Does Not Always Equal "Private": The Constitutionality of Requiring DNA Samples from Convicted Felons and Arrestees, 9 Wm. & Mary Bill Rts. J. 645 (2001) (the government's interest in mandatory testing of all those arrested outweighs individuals' privacy interests)
• Reneé A. Germaine, Comment, "You Have the Right to Remain Silent. . . You Have No Right to Your DNA" Louisiana's DNA Detection of Sexual and Violent Offender's Act: An Impermissible Infringement on Fourth Amendment Search and Seizure, 22 J. Marshall J. Computer Info. L. 759 (2004) (unconstitutional under balancing test other than special needs)
• Kimberly A. Polanco, Note, Constitutional Law-The Fourth Amendment Challenge to DNA Sampling of Arrestees Pursuant to the Justice for All Act of 2004: A Proposed Modification to the Traditional Fourth Amendment Test of Reasonableness, 27 U. Ark. Little Rock L. Rev. 483 (2005) (constitutional under a balancing test)
• Robert Berlet, Comment, A Step Too Far: Due Process and DNA Collection in California after Proposition 69, 40 U.C. Davis L. Rev. 1481 (2007) (with certain modifications, arrestee DNA sampling as provided for under California law would be constitutional)
• John D. Biancamano, Note, Arresting DNA: The Evolving Nature of DNA Collection Statutes and Their Fourth Amendment Justifications, 70 Ohio St. L.J. 619 (2009) (unconstitutional under special needs and totality of the circumstances tests) 
• John Maddux, Comment, Arresting Development: A Call for North Carolina to Expand Its Forensic Database by Collecting DNA fromFelony Arrestees, 32 Campbell L. Rev. 103 (2009)
• Corey Preston, Note, Faulty Foundations: How the False Analogy to Routine Fingerprinting Undermines the Argument for Arrestee DNA Sampling, 19 Wm. & Mary Bill Rts. J. 475 (2010)
• Ashley Eiler, Note, Arrested Development: Reforming the Federal All-Arrestee DNA Collection Statute to Comply with the Fourth Amendment, 79 Geo. Wash. L.Rev. 1201, 1220 (2011)
• Lauren N. Hobson, Note, North Carolina's Arrested Development: Fourth Amendment Problems in the DNA Database Act of 2010, 89 N.C. L. Rev. 1309 (2011) (unconstitutional because no existing exception to the Warrant Clause applies)
• Kelly Ferrell, Comment, Twenty-first Century Surveillance: DNA “Data-mining” and the Erosion of the Fourth Amendment, 51 Hous. L. Rev. 229 (2013)
• Alex Sugzda, Note, You're under Arrest-say Ah: Suggestions for Legislatures Drafting Statutes Allowing DNA Extraction from Arrestees, 70 Wash. & Lee L. Rev. 1443 (2013)
• Jesika S. Wehunt, Note, Drawing the Line: DNA Databasing at Arrest and Sample Expungement, 29 Ga. St. U. L. Rev. 1063 (2013)
• George M. Dery III, Opening One's Mouth “For Royal Inspection”: the Supreme Court Allows Collection of DNA from Felony Arrestees in Maryland v. King, 2 Va. J. Crim. L. 116 (2014)
• Stephanie B. Noronha, Comment, Maryland v. King: Sacrificing the Fourth Amendment to Build up the DNA Database, 73 Md. L. Rev. 667 (2014)
• Brian Clark Stuart, Comment, Dethroning King: Why the Warrantless DNA Testing of Arrestees Should Be Prohibited under State Constitutions, 83 Miss. L.J. 1111 (2014)
• Related note: Jacqueline K. S. Lew, Note, The Next Step in DNA Databank Expansion? The Constitutionality of DNA Sampling of Former Arrestees, 57 Hastings L.J. 199 (2005) (unconstitutional as applied to "former arrestees")

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References

Julie Samuels, Elizabeth Davies, Dwight Pope et al., Collecting DNA From Arrestees: Implementation Lessons, NIJ J., June 2012, http://www.nij.gov/journals/270/arrestee-dna.htm

15 La . Rev. Stat. § 609(A)(1) ("A person who is arrested for a felony sex offense or other specified offense, including an attempt, conspiracy, criminal solicitation, or accessory after the fact of such offenses on or after September 1, 1999, shall have a DNA sample drawn or taken at the same time he is fingerprinted pursuant to the booking procedure."), derived from Act No. 737, approved July 9, 1997, and amended in 2003 (adding the phrase "including an attempt, conspiracy, criminal solicitation, or accessory after the fact of such offenses")