All Eyes on Maryland v. King: Recapping the Supreme Court Oral Argument

1037193_dna_fingerprint_5Seating was in short supply to hear oral arguments before the Supreme Court in what J. Alito referred to as “the most important criminal procedural case that this court has heard in decades,” Maryland v. King. Eager spectators –including this contributor for the Genomics Law Report – lined up along the marble steps of the Supreme Court building and waited amidst biting winter temperatures in excess of four hours before being allowed inside. [I thought to myself, “if I can brave the cold for football, I can brave the cold to see our nation’s highest court in action.”] The second of two cases scheduled for the morning of February 26, 2013, oral arguments for Maryland v. King were already underway when the fortunate final spectators were ushered inside. Katherine Winfree and Michael Dreeben argued for the Petitioners (the State of Maryland) and Kannon Shanmugam argued on behalf of the Respondent (Alonzo King).

The Genomics Law Report has covered the brewing constitutional controversy of DNA fingerprinting upon arrest previously, as U.S. v. Mitchell tentatively settled the matter in the 3rd Circuit, as the 9th Circuit continued to wrestle with Haskell v. Harris, and as various state courts, including Minnesota and Colorado [pdf], faced similar questions.

Background on Maryland v. King.  Alonzo Jay King, Jr. was arrested in 2009 and charged with first- and second-degree assault. As part of his initial arrest, King submitted to DNA fingerprinting collected by law enforcement under the Maryland DNA Collection Act. More than half the states [pdf] have statutes similar to Maryland’s, and there is also a similar federal statute (the DNA Fingerprint Act of 2005 [pdf]). King admitted to his involvement and was ultimately convicted of second-degree assault, a misdemeanor and an offense not qualifying on its own for DNA collection upon arrest under Maryland’s law.

King’s DNA fingerprint (or CODIS profile) was entered into the database and some months later matched a profile from an unsolved 2003 home robbery and rape case. Police obtained a warrant and collected a second DNA sample that confirmed the match. King’s attorneys were unsuccessful in their attempts to suppress the DNA evidence during trial, arguing that the initial DNA collection was unconstitutional since at that time there was no individualized suspicion of King being involved in the rape and the collection was performed without a search warrant. Ultimately, King was convicted of first-degree rape and sentenced to life without parole. The DNA evidence was essential to his prosecution.

King appealed the conviction, and the Maryland Court of Appeals [pdf] ruled that the initial DNA collection was unconstitutional as applied to arrestees, holding that the defendant’s privacy interests outweighed the government’s interest in obtaining the information.

The State of Maryland applied for a stay of the judgment, which the Supreme Court granted [pdf] on July 30, 2012. This allowed the state to continue DNA collection pending its appeal to the Supreme Court. The State filed petition for certiorari [pdf] on August 14, 2012, which was subsequently granted on November 9, 2012.

Framing the Argument. The Petitioners (the State of Maryland) argue [pdf] that the question before the court is this: “Does the fourth amendment allow States to collect and analyze DNA from people arrested and charged with serious crimes?” The Petitioners argue that the DNA collection is a minimal intrusion: only the individual’s identity is at stake; arrestees have a lowered expectation of privacy generally than do other citizens and there is no reasonable expectation of privacy in identity (i.e., no right to anonymity); and that the presumption of innocence does not buoy an arrestee’s privacy interest. Petitioners also argued that DNA fingerprinting upon arrest advances important government interests, including identification with accuracy and solving crimes expeditiously.

The Respondent (King), on the other hand, frames [pdf] the question before the Court as this: “Whether the Fourth Amendment permits the warrantless collection and analysis of DNA from a person who has been arrested for, but not convicted of, a criminal offense, solely for use in investigating other offenses for which there is no individualized suspicion.” In their Reply brief [pdf], the Petitioners noted that King conceded that the reasonableness inquiry of the Fourth Amendment does not require a warrant or individualized suspicion when the intrusion is minimal and further argued that a balancing test confirms the search was reasonable, recognizing that King overstated his privacy interests in non-coding loci and the state’s significant interests in collecting such information from arrestees.

In addition to the briefs by the parties, leading up to the oral arguments, twenty-three amici briefs were filed (and are available here).

Highlights from the Oral Arguments. Oral arguments before the Supreme Court are strictly timed and feature rapid fire questioning from all directions of the bench. The oral arguments for Maryland v. King were no exception, but here are some of the key questions that received attention.

Key Question #1: Which legal test shall be applied?

Predictably, much of the questioning from the bench focused on which test is applicable for the constitutional analysis: a balancing test (weighing the relative interests of the government with the privacy interests of the individual, who in this case is Mr. King) or a special needs test (articulating a specific exception to the requirement of a warrant). Justices Kennedy, Kagan and Scalia pressed for answers on whether the Petitioner argues that the policy in question – collecting a DNA sample upon arrest, analyzing the sample to generate a CODIS profile, and then comparing that profile to those already in the system (see here for additional GLR coverage on CODIS profiles) – is a search incident to an arrest or is justified by a special needs exception.

Later in the hearing, Justice Breyer pressed the Respondent for specifics regarding how a balancing test would decide the matter, noting that DNA fingerprinting involving a cheek swab is less intrusive (likely meaning less of an inconvenience from a practical standpoint in the context in which it was stated) than dermatoglyphic fingerprinting, is far more accurate in identification of the individual, and helps not only inculpate but also exculpate individuals. It seemed apparent that Respondent did not satisfy Justice Breyer’s desire for information on how DNA fingerprints are different from existing arrest procedures (e.g., mug shot photographs and dermatoglyphic fingerprints) and, importantly, how DNA fingerprints are worse (in terms of the intrusion of privacy, the possibility of abuse, etc.). Shanmugam, on behalf of the Respondent, conceded during argument that dermatoglyphic fingerprinting is not a search, as the individual has no expectation of privacy in that information. Justice Breyer tried to elicit more legal and practical arguments from Shanmugam on why DNA fingerprints are distinguishable not only on legal but also practical grounds.

Legal scholars and practitioners yearn for the Supreme Court to issue an opinion in Maryland v. King that clearly establishes which test applies in this area of Fourth Amendment jurisprudence.

Key Question #2: Is there a legitimate, reasonable expectation of privacy in one’s DNA?

Chief Justice Roberts wasted no time questioning Respondent on the boundaries of genetic privacy. Chief Justice Roberts drew attention to opportunistic DNA sampling and analysis that can occur (e.g., as individuals shed DNA on a cup of water in an interrogation room and elsewhere), noting “you cannot keep this private.” Chief Justice Roberts indicated Respondent was “begging the question” rather than demonstrating there is a “legitimate expectation of privacy” in a person’s DNA. Justice Scalia explained it plainly and simply: if there is no expectation of privacy, there is no search.

A person typically does not have any privacy interest in personal characteristics “constantly exposed to the public” (e.g., handwriting, voices, facial features) (United States v. Dionisio, 410 U.S. 1, 4 (1973)). The questions posed during oral argument in Maryland v. King did not make distinctions between expectations of privacy in the DNA sample itself versus the information that could be obtained from subsequent analysis of the sample. While the CODIS profile is just a limited analysis of a set of markers not currently informative for accurately predicting traits and conditions expressed in a particular individual, there is a potential for misuse if law enforcement looks genome-wide. Justice Alito compared this danger to urine analysis for drug testing, recognizing that the courts have allowed urine drug testing notwithstanding the fact that urine can be analyzed for a whole slew of information above and beyond drug use.

It is anyone’s guess how the Justices will define the scope of genetic privacy and whether any recognized expectation of genetic privacy will be determined to be reasonable for Fourth Amendment purposes.

Key Question #3: Does the government have a compelling interest in having access to information about adjudicated and possible (but not yet adjudicated) criminal activity?

Justice Kennedy suggested he was not content with the Respondent’s attempts to characterize the DNA fingerprinting as a “warrantless, suspicionless search.” J. Kennedy focused on whether having not only an arrestee’s name but also information about an arrestee’s adjudicated criminal record and links to prior crimes not yet adjudicated is important information for judges to have “from the outset” in making critical decisions at bail hearings. Justice Kennedy reiterated this point when the oral arguments turned to the issue of turn-around time for DNA fingerprinting. Even if turn around time is on the order of months rather than hours, Justice Kennedy noted the value of having such information for making and later reconsidering bail decisions. Whether an arrestee is a flight risk or of particular danger to the public while awaiting trial is informed by other dangerous and/or unlawful activities, regardless of whether those activities have been fully adjudicated.

Key Question #4: What is “identification”?

What does the word “identification” mean for Fourth Amendment purposes? Justice Breyer asked this very question. Arrestees could lie about their names. Photographs may reveal current appearance that could be used to provide information about whether victims, witnesses, and other individuals recognize the person, but appearances can be altered. While it did not come up during the oral argument, John Doe warrants (i.e., arrest warrants based exclusively on a DNA fingerprint to identify the perpetrator otherwise unknown/unnamed) rely upon DNA as the exclusive means of identification.

On this issue of what is identification and what are identification purposes, Justice Sotomayor honed in on importance of time. Can a technology be used for identification purposes if it takes weeks or months to learn of the results? Justice Ginsburg questioned whether offender DNA profiles are routinely matched to other DNA profiles, a process which would indicate that the government is using the DNA fingerprint as an identification tool. The Petitioners admitted that this is not the normal process. Justice Sotomayor explained that currently DNA fingerprinting upon arrest is not used for identification purposes but, rather, for crime-solving purposes. She elaborated that this practicality has only been because the technology has not moved fast enough for it to be used for identification in the way other procedures (e.g., dermatoglyphic fingerprints, mug shot photographs) are. Justice Scalia had earlier noted that the Petitioner’s opening remarks that DNA fingerprints assist in crime-solving success rates does not demonstrate its constitutionality.

While not specifically stated during the oral arguments, this question about the definition of identification in light of DNA fingerprints has been looming for a decade or more. It has been recognized that “the ability to briefly stop [an individual], ask questions, or check identification in the absence of probable cause promotes the strong government interest in solving crimes and bringing offenders to justice” (United States v. Hensley, 469 U.S. 221, 229 (1985)). But the courts have not defined “identification.” Numerous states recognize identification may be obtained not only through the common practice of checking a driver’s license but also from fingerprints, palm prints, footprints, blood and urine specimens, saliva and hair samples, voice and handwriting exemplars, photographs, etc. (See, e.g., N.C. Gen. Stat. 15A-271) John Doe arrest warrants identifying the perpetrator not by name or by specific description of appearance but, rather, by DNA fingerprint have been previously allowed (e.g. State v. Dabney [pdf], Wisconsin v. Davis [pdf], People v. Martinez) [pdf]), but have not been specifically examined by the Supreme Court. How the Supreme Court defines “identification” in its decision of Maryland v. King could have far-reaching implications for criminal procedure.

Key Question #5: Must this case be decided on the facts of today or the possibilities of tomorrow?

During oral arguments Justice Kagan explored a scenario 10 years in the future wherein a DNA fingerprint may be entered into a computer system and results are reported as quickly as current arrest booking procedures, providing immediate information of name, criminal record and links to unsolved cases. During the Petitioner’s rebuttal period, Chief Justice Roberts questioned, “How can I base a decision today on what you tell me is going to happen in two years?” Justice Scalia explained, “You [the Petitioner] can’t demonstrate the purpose [of DNA fingerprinting] is identity now.” Ultimately both sides have asked the Court to look beyond the present realities and consider future possibilities. For example, the Petitioner explained DNA fingerprinting takes an estimated 11-17 days presently, but projected that same-day results are a short 18-24 months away. And while the markers in the CODIS profile are not presently informative for biomedical conditions, the Respondent urges consideration of the potential information that might be discovered from CODIS markers in the future, pointing to the ENCODE project.

A recent decision may provide clues as to which Justices would be more likely to use future possibilities to rule on the current constitutionality of the practice of DNA fingerprinting as part of routine arrest booking procedures. The split 5-4 decision in Clapper et al. v. Amnesty International et al. [pdf], holding that plaintiffs had no standing to challenge a foreign surveillance law based on their “hypothetical future harm,” placed Justice Alito with Chief Justice Roberts and Justices Scalia, Thomas and Kennedy on one side of the issue (declining to find standing on the basis of such a hypothetical future harm) and Justices Breyer, Ginsberg, Sotomayor and Kagan on the other. Only time will tell whether the Justices will align themselves similarly when considering the relevance of future possibilities (e.g., rapid DNA analysis) or “highly speculative harms” (e.g., biomedical information that is not presently but might potentially be discovered from CODIS markers) in the context of Maryland v. King.

Predictions and Conclusions. Some law scholars have been willing to make predictions on how the Supreme Court will decide the case. For example, David Kaye has predicted DNA fingerprinting upon arrest will be upheld (i.e., that the Supreme Court will overturn the Maryland Court of Appeals), stating “…I am betting that the Court will write a broad opinion upholding DNA database laws at all points after arrest. But IMHO, it’s a close question.” SCOTUSblog has predicted the decision will come down to Justice Kennedy’s vote. If forced to predict, I would anticipate a split decision that uses a broad definition of “identification” and upholds this “fingerprint for the 21st Century;” however, I haven’t the foggiest as to whether a biometric identification exception will be created or whether a balancing test will be applied to reach that decision.