Disclaimer: I’m not a Fourth Amendment person. Rather, my interest in King is in its implications for policies for the use of DNA in the criminal justice system. I spent the better part of a year after my Ph.D and before beginning law school helping to research and edit a book on DNA and the criminal justice system and co-authoring its final chapter with the book’s editor, David Lazer. Although that was ten years ago now, most of the major policy issues in this area have not much changed over the last decade. So, with that caveat, and an invitation to readers to point out anything I say that is out of date or otherwise inaccurate, here are a few quick thoughts on King.
The majority and dissenting opinions spill most of their respective ink taking contrary positions on the primary purpose served by collecting DNA from arrestees. The majority somehow manages to argue with a straight face that the primary purpose (and indeed, to guess from its analysis, apparently the only purpose) of collecting DNA from arrestees is to identify the body of the arrested individual sitting in the booking room. As Justice Scalia wrote in dissent, this claim by the Court “taxes the credulity of the credulous” (slip op. dissent at 1). The clear primary purpose and actual use of statutes authorizing the routine collection of DNA from arrestees is to solve other cases than the one “at bar,” if you will, in the booking room.
One might have thought that the Court went out of its way to avoid finding that the primary purpose of the DNA collection at issue is “to detect evidence of ordinary criminal wrongdoing,” (Indianapolis v. Edmond, 531 U. S. 32, 38 (2000), in order to avail itself of the “special needs” exception to the Fourth Amendment’s usual requirement that searches be conducted pursuant to individualized suspicion. But no. The Court ultimately concludes that the special needs cases “do not have a direct bearing on the issues presented in this case, because unlike the search of a citizen who has not been suspected of a wrong, a detainee has a reduced expectation of privacy” (slip op. at 25). In upholding the state’s power to collect DNA from arrestees, then, the Court relied on — along with the minimally intrusive nature of the search — the arrestee’s reduced expectation of privacy. Indeed, the Court deemed the latter feature “fundamental” to its analysis (id. at 24).
Consider, then, that no such reduced expectation of privacy can be attributed to an even larger class of individuals who are indirectly included in DNA offender databases: the relatives of arrestees (and others who are directly included in offender databases).
How are relatives of arrestees included in DNA offender databases? Not infrequently, when law enforcement searches an offender database in the usual way, where each DNA fingerprint is made up of 13 loci, they turn up no hits. But if, they instead search for, say, 8 loci, they will sometimes have a “near miss.” What this means is that the person who left his DNA at the crime scene is not the individual who contributed the DNA fingerprint record to the database but, rather, a more or less distant relative of that person.
Clearly, neither individualized suspicion nor reduced expectations of privacy apply to relatives of arrestees. Moreover, because a “near miss” will only tell law enforcement that, say, a first- or second-degree relative of the arrestee (or convict or suspect) likely left his DNA at the crime scene, law enforcement will have to further investigate multiple relatives, only one of whom left his DNA at the crime scene. Finally, given the disproportionate inclusion of African Americans in the classes of both convicts and arrestees, familial searching of DNA databases has the potential to include the vast majority of African Americans in DNA offender databases, either directly or indirectly. Such low-stringency (or familial) searches were cutting-edge ten years ago when my co-author and I (and others in the volume) wrote about them, but today they are routine. Notably, Maryland’s statute does not seem to preclude conducting low-stringency searches. As my colleague Jeff Skopek pointed out to me, in my haste to blog a breaking case, I neglected to observe that on page 5 of the opinion the Court in fact notes: “Tests for familial matches are also prohibited. See §2–506(d) (‘A person may not perform a search of the statewide DNA data base for the purpose of identification of an offender in connection with a crime for which the offender may be a biological relative of the individual from whom the DNA sample was acquired’).” Thanks to Jeff for pointing this out. Of course, other statutes do permit such searches, and so the broader point of the post stands.
Although King did not involve a low-stringency search and neither the majority nor the dissent discussed this technology, it is unlikely that it would have made a difference if either had, because it is unlikely that a DNA database search (as opposed to a cheek swab) constitutes a “search” for Fourth Amendment purposes.
Although courts have generally given the question short shrift, so far as I know, all have either held or assumed that searching a DNA database does not constitute a separate Fourth Amendment search. (See here for analysis by David Kaye defending the no-new-search position and this Note defending the opposite view.) The Court in King appears to have viewed both the cheek swab and the processing of that sample to derive the DNA fingerprint as (at least potentially) Fourth Amendment searches (see slip op. at 26–27), but neither the majority nor the dissent undertook any separate analysis of the privacy interests involved in a database search that occurs after a sample is taken, processed, and entered into the database. If database searches do not implicate the Fourth Amendment, then an arrestee’s relatives have no Fourth Amendment claim against the state when it conducts low-stringency searches.
If you’re outraged by the result in King, then my guess is that your outrage has less to do with swiping the insides of arrestees’ cheeks with a buccal swab and more to do with the inclusion, without individualized suspicion, of arrestees in DNA offender databases. If so, then you should be positively apoplectic about the relatives of those who are directly included in offender databases being indirectly included via low-stringency searches.
On the other hand, perhaps neither arrestee inclusion nor familial searches of the database especially bother you, so long as the DNA analysis is limited to identity at crime scenes. Justice Scalia argues that although solving crimes is a noble goal, it takes a backseat to Fourth Amendment privacy. We wouldn’t, he says, allow the state to enter a house or even peek around the curtilage in order to solve a crime without individualized suspicion (slip op. dissent at 4). But intrusion into the home necessarily sacrifices one’s privacy in myriad ways. Searching an offender database to determine the identity, and nothing more, of the person who left his DNA at a crime scene seems much more limited. And you may be of the mind that no one, arrestee or not, has a right not to be identified as someone who left their DNA at a crime scene. As for the cheek swab, you may view it as a de minimis intrusion that pales in comparison to state mandates that clearly-innocent children receive, in the name of public health, much more invasive, risky, and repeated vaccination shots. And weighing heavily against these rather minimal privacy intrusions, you may say, are the very substantial state interests in solving and deterring crime.
Readers with either response to King — horror or nonchalance — should consider the merits of a universal DNA database — one that contains 13 identifying loci from each of us, with a prohibition on further analysis of those loci (which are very unlikely to reveal much significant information beyond identity, in any event), and penalties for violating that prohibition. Collecting DNA from arrestees to solve unrelated crimes not only constitutes a search without individualized suspicion, it also constitutes a search of individuals (an arrestee’s relatives) whose legal relationship to the state has not, unlike the arrestee, resulted in a reduced expectation of privacy, and additionally subjects them to more traditional investigation and surveillance by the state. Moreover, it disproportionately subjects some ethnic/racial minorities and other groups to such indirect surveillance. If we’re going to include in “offender” databases individuals whom we have absolutely no reason to suspect of having committed any offense, then it seems only fair to equally distribute whatever privacy burden that entails on everyone. A universal database would also avoid exacerbating the problem of a criminal justice system already viewed as discriminatory (and hence illegitimate) towards certain groups in our society. And what better way to promote reasonable uses of the database and the adoption of meaningful penalties for its misuse than to include everyone in it — including lawmakers and other powerful individuals?
And for those who view the privacy downside as trivial and the law enforcement upside as huge, note that the more individuals we include in the database, the better we will be able to both solve crimes and avoid wrongful convictions. Justice Scalia was skeptical of this latter point (see slip op. at 9 n.2) — unfairly, in my view. As David Lazer and I argued ten years ago, when law enforcement searches an offender database for a match to a new (or cold) crime scene sample but finds nothing, they must then rely on traditional, less reliable forms of investigation and evidence, such as eyewitness testimony. With a universal database, by contrast, law enforcement would be much less likely to arrest, prosecute, or convict innocent individuals in the first place (and would be likely to save substantial investigative resources, to boot). Indeed, avoiding wrongful arrests, prosecutions, and convictions, and increasing law enforcement speed and efficiency, might serve as primary purposes of a universal database under the special needs doctrine. (If you don’t buy that argument, Kaye and Michael Smith have argued that we piggyback on the Guthrie heel pricks we take from every infant; their primary purpose will always be testing for treatable diseases like PKU, and no additional search is needed to secure a DNA sample for law enforcement database purposes.)
[Cross-posted at The Faculty Lounge]