DNA Fingerprinting as Routine Arrest Booking Procedure Upheld as Anticipated

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Jennifer K. Wagner, J.D., Ph.D., is a solo-practicing attorney in State College, PA and a research associate at the University of Pennsylvania’s Center for the Integration of Genetic Healthcare Technologies.

Oral arguments in Maryland v. King were held on February 26, 2013, as reported previously here on GLR. Following oral arguments, I stated, “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. While the Court deliberated and legal scholars, law enforcement, and many other individuals anxiously awaited a decision, Carl Starger provided a helpful visual analysis of the cases touched upon during oral arguments and David Kaye provided a useful scorecard on DNA collection prior to conviction. Well, the wait is now over. On June 3, 2013, the Supreme Court issued its decision to uphold DNA fingerprinting as routine arrest booking procedure, with Justice Kennedy delivering the opinion, joined by Chief Justice Roberts and Justices Thomas, Breyer, and Alito. Justice Scalia wrote a brutal dissent that was joined by Justices Ginsburg, Sotomayor, and Kagan.

The question before the Court was whether the Fourth Amendment to the U.S. Constitution permits DNA fingerprinting as part of routine booking procedures upon arrest, as authorized by Maryland’s DNA Collection Act. The Fourth Amendment provides:

The 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, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Court’s majority opinion addressed the question as framed by the Petitioner (the prosecution, the state of Maryland): “Does the fourth amendment allow States to collect and analyze DNA from people arrested and charged with serious crimes?” The dissenting justices, in contrast, addressed the question as framed by the Respondent (King, the defendant): “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.” Not surprisingly, the majority and dissenting opinions stand in stark contrast with one another. The one thing the majority and the dissenters agreed on is that the collection of DNA using a buccal swab to generate a Combined DNA Index System, or CODIS, profile (an individual’s genotype at a standard set of loci, as explained previously here on GLR) is a search and, accordingly, is subject to the limitations imposed by the Fourth Amendment—in particular, that the search must be reasonable.

Summary of the Court’s Opinion
The Court situated its decision to permit DNA fingerprinting as a routine arrest booking procedure for serious offenses within the contexts of a valid search incident to arrest. A “search incident to arrest” is a legal term of art describing a category of searches that do not require search warrants. These are typically marked by the possibility an arrestee could reach a weapon, that evidence nearby could be destroyed, or other exigent circumstances. In Maryland v. King, however, the Court did not state that DNA fingerprinting upon arrest as a routine booking procedure was itself a search incident to arrest. This point was not missed by the justices dissenting from the Court’s opinion, who questioned this legal reasoning.

DNA Collection and Process are Searches; the Balancing Test of Reasonableness Applies
The Court acknowledged that DNA fingerprinting is a search and, accordingly, subject to the Fourth Amendment’s reasonableness requirement; however, the Court rejected the adoption of a per se rule that such searches are always unreasonable in the absence of a warrant. Instead, the majority applied a balancing test for reasonableness, citing the 1995 case of Veronia School District 47J v. Acton—an opinion, coincidentally, penned by Justice Scalia and joined by the late Chief Justice Rehnquist and Justices Kennedy, Thomas, Breyer, and Ginsburg. In Veronia, the Court signaled that the reasonableness test, balancing the privacy interests of the individual against the government interests in the search, is appropriately applied when there is no clear precedent for the type of search in question. In Veronia, Justice Scalia wrote,

As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is ‘reasonableness.’ At least in a case such as this, where there was no clear practice, either approving or disapproving the type of search at issue, at the time the constitutional provision was enacted, whether a particular search meets the reasonableness standard “is judged by balancing its intrusion on the individual’s Fourth Amendment interests against its promotion of legitimate governmental interests.”

The Court reiterated in Maryland v. King that “the need for a warrant is perhaps least when the search involves no discretion” on the part of the law enforcement officer and emphasized that DNA fingerprinting is a procedure that is standardized by CODIS. The Court reasoned that the use of DNA collection to identify the person being arrested and tried for a crime “is not subject to the judgment of officers whose perspective might be ‘colored by their primary involvement in the often competitive enterprise of ferreting out crime’” (quoting Terry v. Ohio) and stated that DNA fingerprinting upon arrest falls into a category of cases within which the “touchstone of the Fourth Amendment is reasonableness.”

Five distinct, legitimate governmental interests in the “identification” of arrestees
The Court articulated the government’s interest as “the need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody.” “When probable cause exists to remove an individual from the normal channels of society and hold him in legal custody, DNA identification plays a critical role in serving those interests.” The majority explained that arrestees often carry false documentation, lie about their identity, and change their appearances to avoid accurate identification and proper affiliation with their criminal history.

Five distinct government interests in identification upon arrest were articulated in Maryland v. King:
1. Identity is defined broadly and includes names, physical appearances, and social security numbers as well as criminal histories. The task of identification necessitates searching public records for identification information other than that shared by the arrestee.
2. Law enforcement has an obligation to ensure that custody of arrestee does not endanger those already in custody or the staff of the detention facility. Officers are permitted to search arrestees for weapons and examine arrestees’ bodies for tattoos that may signal gang affiliations (and hence potential past or habit of violent behavior) and examination of arrestees’ DNA to identify whether the arrestee may be wanted for or has been convicted of prior crimes would be similarly useful.
3. The government has an interest in ensuring that the accused are available for trial. Arrestees may be higher flight risks if they have committed crimes for which they have not yet been prosecuted. Thus, government has a legitimate interest in checking whether the arrestee’s CODIS profile is affiliated with DNA profiles from crime scenes.
4. Past conduct (suspected or adjudicated) is relevant to assessing the danger the individual poses to the public and is informative in bail decisions.
5. Proper identification within the CODIS database may serve to exonerate individuals who have been wrongfully accused or convicted of prior crimes.

DNA fingerprinting is a superior tool serving those legitimate government interests
Having recognized these government interests and reiterated that “the Court has been reluctant to circumscribe the authority of the police to conduct reasonable booking searches,” the Court turned its focus to the superiority of DNA fingerprinting in properly establishing the identity of arrestees. The Court reviewed prior identification tools (including mug shot photographs, anthropometric data collected within the Bertillon System, and traditional fingerprinting), pointing to rulings from other courts indicating that these identification tools were not only for the identification of the person accused for the immediate crime but also to identify the person as being affiliated with other criminal activity, regardless of whether that activity had yet been prosecuted. The Court dismissed King’s argument that the speed of processing of DNA fingerprints makes the technique inferior to traditional fingerprinting, noting that rapid fingerprinting analysis through the Integrated Automated Fingerprint Identification System (IAFIS) is “itself of recent vintage.” Moreover, the Court explained, “The question of how long it takes to process identifying information obtained from a valid search goes only to the efficacy of the search for its purpose of prompt identification, not the constitutionality of the search.” The majority stated, “Just as fingerprinting was constitutional for generations prior to the introduction of IAFIS, DNA identification of arrestees is a permissible tool of law enforcement today.”

Arrestees have diminished expectations of privacy in identification information
The Court casually described the arrestees’ expectations of privacy as diminished, drawing a brief distinction between a “search incident to an arrest” and so-called “special needs searches.” While acknowledging that some searches of arrestees may require a warrant because they are particularly intrusive or involve higher expectations of privacy, the Court failed to find such facts in this case. The Court underscored the minimal invasiveness of the buccal swab, the standardized procedure of CODIS profiling that involves only pre-established set of loci informative only for identification (and not informative for medical traits or conditions), and the existing limitations within the statutes even if the CODIS loci were to become medically informative. (For a refresher on the loci analyzed for CODIS profiles and what information can be derived from them, see previous GLR coverage here).

With that, the Court held that “DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure.

Summary of the Dissenting Opinion
Justice Scalia spared no sarcasm in his dissenting opinion. Consider the following gems:
• “The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous.”
• “Why spill so much ink on the special need of identification if a special need is not required? Why not just come out and say that any suspicionless search of an arrestee is allowed if it will be useful to solve crimes? The Court does not say that because most Members of the Court do not believe it.”
• “I hope that the Maryland officials who read the Court’s opinion do not take it seriously. Acting on the Court’s misperception of Maryland law could lead to jail time.”
• “It gets worse…”
• “Make no mistake about it: As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.”
• “Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.”

Beyond the provocative rhetoric, the dissenting opinion had substance. It attacked the heart of the Court’s opinion: its broad and poorly articulated conceptualization of “identification” and the weak rationale provided to justify the application of the balancing test.

The dissent contains an interesting discussion on the databases against which DNA fingerprints of arrestees are compared, noting that the arrestee DNA fingerprints are compared not to the database of convicted or arrested individuals but only to the unsolved crimes database. The dissent then highlighted that this is illogical if the purpose is “identification,” as the former database contains names, physical descriptions, and other personal information but the latter “stores ‘no names or other personal identifiers of the offenders, arrestees, or detainees.’” This is based on a premise hotly debated—whether a genome is ever de-identified or anonymous or, by contrast, whether it is itself always a personal identifier. The dissent took a narrow view of identification and suggested that a CODIS profile without a name affiliated with it is “unknown.” The majority seemed to disagree that a CODIS profile unlinked to other personal identifying information is “unknown.” Rather, with the ruling in Maryland v. King, the majority seemed to downgrade the status of a name as the most important personal identifier of an individual. The idea that a CODIS profile is itself a personal identifier (the equivalent of a name) is in line with previous treatment of (1) John/Jane Doe arrest warrants (i.e., warrants naming the accused by the description of the CODIS profile rather than a given name) and (2) non-testimonial identification orders (the constitutionality of which has not yet been addressed directly by the Supreme Court). Should the constitutionality of Jane/John Doe arrest warrants come before the Court, it will be interesting to see if the current alliances of justices hold. Checking outstanding warrants at the time of arrest (an accepted practice) would be undermined if outstanding warrants were permitted to identify perpetrators by CODIS profile alone but government officials were permitted only to check whether outstanding warrants list given names.

Additionally, the dissent criticized the analogies made by the Court in reaching its ruling. The dissent criticized these analogies (between mug shot photos and CODIS profiles, anthropometric data and CODIS profiles, and fingerprints and CODIS profiles) not because of notable differences in the type or degree of information each method provides but rather because of the Court’s characterization of the way in which those methods have come to be accepted as reasonable. The dissenting justices acknowledged that arrestees do not have a reasonable expectation of privacy in their physical appearance: mug shot photos do not even constitute a search to which Fourth Amendment analysis applies. The analogy with CODIS profiles, then, is strained, because the Court agreed that DNA sampling and analysis is a search to which Fourth Amendment analysis applies. The dissent also acknowledged anthropometric data is regularly collected upon arrest and further acknowledged that this data collection is for identification purposes (“to verify…the person arrested today is the same person that was arrested a year ago”). Recall that the Court had listed this purpose among the legitimate government interests in DNA fingerprints. Nonetheless, the dissent criticized the use of this analogy, arguing that the Bertillon system data, unlike the DNA fingerprints, were “not, in the ordinary case, used to solve unsolved crimes.” The dissent continued by shining a spotlight on the fact that traditional fingerprinting has been assumed to be reasonable for decades; however, the Court has never specifically determined traditional fingerprinting to be reasonable under the “modern era” of Fourth Amendment jurisprudence (e.g., Katz v. United States). Fingerprinting was already accepted practice and no longer in controversy by that time.

As expected from Justice’s Kagan and Scalia’s questions during oral arguments (see Key Question #5 from GLR’s previous coverage of the oral arguments), the dissent attacked the Court for basing its decision on possible uses of DNA fingerprints and technological capabilities that may be forthcoming but not yet here. The dissent emphasized the relevant facts are not how DNA fingerprinting might be used or implemented at some point in the near or distant future but, rather, how the practice was used with the Respondent, King. Justice Scalia noted, “Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches.”

In closing, the dissent stated that the Court’s ruling in Maryland v. King would have an “ironic result”: only those individuals who were arrested, DNA-fingerprinted, and subsequently not convicted will be burdened by the connections the DNA fingerprinting makes possible to unsolved cases. Those individuals who are arrested and subsequently convicted would be subjected to DNA fingerprinting at the time of conviction, so they are not burdened by the Maryland v. King ruling. The dissent described such individuals as “people who are innocent of the State’s accusations.” It is true that, in such a case, those individuals would have been acquitted of the original arrest charges; however, it bears reminding that the individuals would remain presumed innocent for the crime(s) with which DNA fingerprinting connected them and that any subsequent cases would require the prosecution to meet the necessary burden of proof for those crimes. DNA fingerprints are not inherently inculpatory: the inculpatory nature arises from any nexus the DNA fingerprints have with any crime scene or catalogued evidence. An illustration may help clarify this point: the dissent is, in essence, arguing that if a rapist’s name were written on a condom wrapper left at the crime scene and an individual of that same name is arrested for unrelated charges, law enforcement is prohibited from connecting the arrestee’s name with that same name on the condom rapper and adding that charge against the arrestee. The name, by itself, is not inculpatory. It is the name’s nexus with the crime scene evidence that is inculpatory and the prosecution would still bear the burden of proving beyond a reasonable doubt that the arrested individual was the source of the condom wrapper, that the timing was such that the condom rapper is from the assault, etc. The dissent’s rationale, however, is that such an arrestee has a reasonable expectation of privacy in his name that overrides law enforcement’s interest in, at time of the unrelated arrest, even checking to see if his name is linked to a criminal record or cases generally (including that separate rape case). Conceptualizing a CODIS profile or genome as a name provides clarity in interpreting whether Maryland v. King was rightly decided.

Concluding Remarks on Maryland v. King
The Court’s failure to clearly delineate the boundary of the term “identification” is problematic, and the Court’s explanation did not enumerate two searches involved in the process of DNA fingerprinting: (1) an initial search of the DNA sample to generate the CODIS profile and (2) a subsequent search involving the comparison of the CODIS profile against the existing databases. It seems apparent that the Court meant that examining the connection of an arrestee to other criminal cases (regardless of whether the examination relies upon connections drawn out with a name, facial appearance, fingerprint, social security number, address, license number, or any other personal identifier and regardless of whether those cases have been fully prosecuted or remain open) is of legitimate government interest at the time of arrest in evaluating the identity of the person arrested. The dissent overlooked or dismissed this point and focused only on the fact that if this information had been obtained, and if a connection was made with a case, the individual might be forced to face the criminal consequences of the elucidation of that connection. The Court’s logic seemed to be as follows: (1) if you have no reasonable expectation of privacy in your potential connections to criminal cases (closed or open) at the time you are arrested for a serious offense, (2) then it is reasonable—if a cold hit link to an open case is located during the DNA fingerprinting process—that such information be used as a sufficient basis (individualized suspicion and probable cause) to obtain a search warrant for a confirmation sample and/or to proceed with an arrest and prosecution for that other crime.

The Court could have been clearer by acknowledging that genomes are never “unknown” or establishing that genomes are an acceptable way of knowing someone’s identity regardless of other possible means (such as a name or alias). This might have averted some of the dissent. Additionally, to reach its holding that DNA fingerprinting of arrestees is permissible under the Fourth Amendment, the Court (1) could have acknowledged that law enforcement historically has been required to obtain a warrant for crime-solving searches to be reasonable but also (2) could have articulated a categorical biometric identification exception to that Fourth Amendment’s warrant clause. But the Court did not. Instead, the Court rests the reasonableness of DNA fingerprinting by its analogy to other arrest booking procedures. Therein lies the opinion’s weakness, because—as Justice Scalia explained in his rebuttal of the analogies to mug shot photos, Bertillon measurements, and traditional fingerprints—the Supreme Court has not specifically determined those arrest booking procedures to be constitutional under this Fourth Amendment analysis of reasonableness.

Another area of concern with the Maryland v. King ruling is the casual way in which the expectations of privacy for arrestees in identification information (again, not clearly defined but seemingly interpreted broadly) were described as diminished. Many might agree that arrestees have diminished expectations of privacy in their identification but, as the Dissent, disagree that a cold hit with a database is “identification” as any layperson would understand it to be. While Justice Scalia may have exaggerated that one could be DNA fingerprinted and that fingerprint stored ad infinitum regardless if one is “ever arrested, rightly or wrongly, and for whatever reason,” police officers do have wide discretion in determining when to make an arrest when probable cause is present (though probable cause is necessary). Maryland’s DNA Collection Act seems to safeguard against the DNA fingerprint being generated and uploaded into the system until arraignment, which may mitigate the expansion of law enforcement databases due to officers exercising poor discretion when making an initial arrest. However, the Court’s ruling in Maryland v. King does raise red flags of disproportionate impacts. Racial minorities are disproportionately stopped, which creates a disproportionate possibility of being arrested, which now subsequently creates a disproportionate risk of being DNA fingerprinted and connected with unsolved crimes. The genomic revolution has an opportunity to help mitigate racial disparities in health and justice. Unfortunately, the passive and implicit policies taking shape in the US are creating an opportunity for the genomic revolution to exacerbate those racial disparities. This disturbing problem highlights an important point of interpretation of the Maryland v. King decision: deciding a practice is constitutionally permissible is not synonymous with deciding a practice is good policy. It is possible that reactions to the Court’s decision in Maryland v. King may provide the support necessary to convince Congress to pass the End Racial Profiling Act (S. 1038), prompt calls for legislation that pull back authorizations for DNA fingerprinting upon arrest (e.g., limiting applicable offenses for which the practice applies, clarifying authorized uses, requiring automatic expungement, imposing additional safeguards against misuse, etc.), or galvanize advocates of a universal database that may alleviate inequities of risks and benefits in a genomic age (e.g., here).

Finally, it is important to underscore the limitations of Maryland v. King. The case involved Maryland’s DNA Collection Act, and not the federal DNA Fingerprint Act of 2005 or any of the similar state statutes. (An overview of DNA collection acts is available here.) The Court’s holding did not address the permissibility of DNA fingerprinting prior to arrest (such as during a Terry stop) or the permissibility of DNA fingerprinting for less serious offenses than authorized by the relatively narrow Maryland statute. For DNA fingerprinting being conducted under existing and potentially forthcoming state statutes, questions will still remain as to whether the practices are permissible under state constitutions (which sometimes provide heightened privacy protections than the baseline of protections of the Fourth Amendment of the U.S. Constitution). For the federal DNA Fingerprinting Act of 2005, the clear precedent remains U.S. v. Mitchell. There are a number of cases in various federal circuits that have been on hold pending the Court’s review of Maryland v. King, and it is likely that some of these will now move forward to challenge broader DNA fingerprinting practices than those that Maryland’s DNA Collection Act authorizes. The Dissent encouraged the Court’s decision to be challenged and repudiated, so stay tuned.

For additional coverage on the decision, see “DNA Swabbing: A Genetic Panopticon?” on HuffPostLive hosted by Michael Sacks on June 4, 2013.