Showing posts with label DNA-BC. Show all posts
Showing posts with label DNA-BC. Show all posts

Sunday, 4 January 2015

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
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Thursday, 1 January 2015

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
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Monday, 22 December 2014

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).
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Sunday, 7 December 2014

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]

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Tuesday, 7 October 2014

The Supreme Sound of Silence: Same-Sex Marriage and DNA Databases

The big news among Supreme Court watchers is the big dog that did not bark in the night — the Court’s denial of petitions for certiorari in seven cases striking down bans on same-sex marriage in Indiana, Wisconsin, Utah, Oklahoma, and Virginia. [1] A denial of a cert petition has no precedential value. It does not mean that the Court approves of the decision below—or that it disapproves of it. It means that, for unstated and often banal reasons (the Court receives some 10,000 petitions a year [4]), no more than three Justices voted in favor of review the decision below. (By convention, it takes four votes to grant the writ that triggers the Court’s review of the case on the merits.)

The Court watchers are treating the rejection of the writs here as a “tacit win to gay marriage” on the theory that it means that if and when the Court chooses to confront the issue, a majority of states will have sanctioned same-sex marriage, making it more likely that the Court will accept the argument that the Constitution forbids limiting the institution of marriage to couples of the opposite sex. [3]

This predicted dynamic was evident in the Court’s handling of laws requiring routine DNA collection for law enforcement databases. No appellate court ever struck down a law requiring convicted offenders to provide samples, and for some thirty years, the Court invariably denied petitions for review in those cases. Only after Maryland’s highest court essentially invalidated that state’s law providing for DNA collection on arrest did the Supreme Court step in. By that time, every state had a DNA database for convicted offenders, and a majority had extended them to require pre-conviction DNA sampling. Every state signed an amicus brief urging the Court to uphold the practice. The Court split 5–4 on the constitutionality of pre-conviction DNA testing. Had the states and the federal executive branch not presented so unified a front in favor of expansive DNA collection, the outcome could have been different. [2]

References
  1. Amy Howe, Today’s Orders: Same-sex Marriage Petitions Denied, SCOTUSblog, Oct. 6, 2014, 10:41 AM, http://www.scotusblog.com/2014/10/todays-orders-same-sex-marriage-petitins-denied/
  2. David H. Kaye, Why So Contrived? DNA Databases After Maryland v. King, 104 J. Crim. L. & Criminology 535 (2014), available at http://ssrn.com/abstract=2376467
  3. Adam Liptak, Supreme Court Delivers Tacit Win to Gay Marriage, N.Y. Times, Oct. 7, 2014, at A1, http://www.nytimes.com/2014/10/07/us/denying-review-justices-clear-way-for-gay-marriage-in-5-states.html
  4. Robert M. Yablon, Justice Sotomayor and the Supreme Court’s Certiorari Process, 123 Yale L.J. F. 551 (2014), http://yalelawjournal.org /forum/justice-sotomayor-and-the-supreme-courts-certiorari-process.html
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Thursday, 17 July 2014

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)

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

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")
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Wednesday, 16 July 2014

The Impact of Medina's Marginal Balancing on DNA Databases and Sample Retention

The opinion of the Supreme Court of Vermont in State v. Medina is a first. This is not because it strikes down a law requiring all individuals merely charged with felonies to submit to DNA sampling. Other state courts have held that state laws providing for DNA collection before conviction are unconstitutional. However, they reasoned that the prohibition on unreasonable searches and seizures in the Fourth Amendment to the U.S. Constitution compelled such action. The Vermont court relied entirely on a provision of the Vermont Constitution (Article 11).

Article 11 proclaims “That the people have a right to hold themselves, their houses, papers, and possessions, free from search or seizure.”  However, the Vermont Supreme Court has never taken this proclamation literally. Article 11 goes on to recognize that searches or seizures can proceed on the basis of “warrants ...  affording sufficient foundation,” and, as Medina noted, the Vermont Supreme Court has “import[ed]” into Article 11 “the ‘reasonableness’ criterion of the Fourth Amendment.”

But “reasonableness” does not usually entail a fact-specific balancing of individual and government interests. Indeed, this June, the Supreme Court disapproved of warrantless seizures and searches of cellphones notwithstanding the argument that they were just “incident to arrest.” In Riley v. California, the Court reiterated the rule that “[i]n the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement.”

So too, the Vermont court declared that under Article 11, “[w]arrantless searches are thus per se unreasonable” although “sometimes permitted.” And it pointed to its opinion in State v. Martin, a 2008 case upholding a post-conviction DNA database, on the theory “that using DNA to determine who committed a past crime is fulfilling an ordinary law enforcement purpose” but using it to link the same person to future crimes is a kind of “special need” for which a warrant is unnecessary as long as the state’s interests outweigh the convicted offender’s.

This is weird. Why should police have to get a warrant to search you when they suspect you of a past crime, but not when they think you might commit one in the future? Nevertheless, the Medina court used this distinction to apply a balancing test. That test, in the hands of Justice John Dooley and two justices who joined his opinion, had some unusual or questionable features.

First, it was a marginal balancing test. That is, the court asked how much extra future crime-fighting power taking DNA before conviction achieved. That is a sensible question for the legislature to weigh before enacting a DNA-on-arrest law (and to study later by having law enforcement agencies gather data on the efficacy of the law). But laws are often compromises, and it is almost always possible to envision less drastic alternatives. For example, a DNA-after-conviction law might include provisions for destroying most samples after the profiles are recorded or for deleting the profiles after a certain period of time. It might be restricted to adult offenders or to a smaller set of offenses. A strict less-drastic-alterative test could put the courts in the business of tweaking legislation. The U.S. Supreme Court has done so for the sake of protecting First Amendment rights but not Fourth Amendment ones.

Second, the Vermont balancing test considered some but not all of the state’s interests. Solving past crimes—through matches to DNA from old rape kits, for example—did not count. If one is going to balance at all, why not put all the relevant interests on the scale? To be sure, the standard interest in solving old crimes is not enough to overcome the individual interests in the security of the person in the absence of a well founded warrant. But that hardly means that it must be ignored when this categorical rule does not apply because the balance of all the state and individual interests may be different. 1/

Third, the majority used the fact that the statute required “expungement of the sample and profile when the adjudication is completed without a conviction of a qualifying crime” as a mark against it. According to these three justices, the legislature’s adoption of this less drastic alternative meant that it determined that it had less need for the samples from unconvicted suspects than from convicted ones. Does this mean that if the legislature re-enacts the law without providing for expungement, the case for upholding the law will be stronger? 2/

Fourth, on the individual side of the balance, Vermont’s justices believed that “each defendant’s privacy interest is greater [than it would be after a conviction] because he or she has not been convicted.” This is a mainstream view, but it seems like a category mistake. Why does your interest in personal security or privacy deserve less weight because you have been convicted of a crime? Certainly, the conviction can subject you to punishment—fines or imprisonment. But this is not because you have a lesser interest in retaining your money and your liberty than anyone else. The significance of the conviction is that the state’s general interests in deterrence, rehabilitation, or retribution carry more weight as applied to known offenders.

Fifth, the court rests its decision on the theory that “[t]he privacy interest of the preconviction defendant is greater than the interest of one who has been convicted because a preconviction defendant has a presumption of innocence.” But the legal presumption of innocence is an evidentiary doctrine that requires the state to prove guilt without relying on the fact that the defendant has been charged with the crime as if it indicates guilt. 3/  It has no bearing on the extent of any privacy interest. As we just noted, a conviction intensifies or focuses the state interests, permitting it to invade some privacy interests that it otherwise could not. Therefore, although the fact of a conviction is an important consideration in a reasonableness inquiry, the “presumption” adds nothing to the balancing test.

Sixth, Medina distinguished fingerprinting of arrestees from DNA sampling on two grounds. The majority thought that unlike DNA, “fingerprints can show only identification, and they have limited functionality in solving old cases.” These claims ignore the fact that fingerprint patterns are not without medical significance and that they routinely solve old cases. 4/ Just last year, the FBI’s criminal fingerprint database received hundreds of thousands of queries for possible matches to latent prints. Nonetheless, it is surely true that DNA samples contain far more socially and personally significant information than fingerprints. The response of most courts, and of course the U.S. Supreme Court in King, has been that statutory protections against accessing that kind of information are sufficient to satisfy a balancing test.

The Medina court disagreed. It stated that “[w]hile current law limits use of the sample, that law can be amended to allow greater use; the retention of the DNA sample suggests that expanded use is possible in the future.” But almost anything is possible in the future. Courts do not normally strike down otherwise constitutional laws because they might be amended in a manner that would make them unconstitutional.

If Vermont follows this unusual approach to constitutional analysis, its entire DNA database law might be unconstitutional under Article 11. Despite its effort to distinguish Martin, the earlier case on convicted-offender DNA collection, Medina observes that “Martin is silent on the storage of the sample, which is retained by the State, apparently indefinitely. ... Neither the statutory purposes, nor the State’s asserted justifications for the law, provide any rationale for retaining the DNA sample once the profile has been created.”

The majority apparently did not think that indefinite sample retention was so grave a risk to privacy as to invalidate the convicted-offender database system, but given the court's understanding of DNA databases, a stringent version of marginal balancing should have this effect. After all, if there is "no rationale" to retain samples indefinitely, and if the risk that the legislature will amend the law to permit the state to mine the samples for sensitive personal information is a weighty concern, there is no state interest to justify sample retention. Conversely, could the legislature revive the part of its law that the court struck down by providing for prompt destruction of those samples? At that point, what basis would the court have to insist that DNA identification is dramatically different from fingerprint identification?

Notes

1. See, e.g., David H. Kaye, Why So Contrived? DNA Databases After Maryland v. King, 104 J. Crim. L. & Criminology (forthcoming August 2014), early draft available at http://ssrn.com/abstract=2376467.

2. Cf. David H. Kaye, Drawing Lines: Unrelated Probable Cause as a Prerequisite to Early DNA Collection, 91 N.C. L. Rev. Addendum 1 (2012), http://ssrn.com/abstract=2064074.

3. David H. Kaye, A Fourth Amendment Theory for Arrestee DNA and Other Biometric Databases, 15 U. Pa. J. Const. L. 1095 (2013), available at http://ssrn.com/abstract=2043259; David H. Kaye, Associational Privacy, the Presumption of Innocence, and “Corruption of Blood” as Constitutional Metaphors in the Debate on “Familial Searching,” Amer. Crim. L. Rev. (Nov. 26, 2012), http://ssrn.com/abstract=2269047

Earlier Posting on State v. Medina

State v. Medina: Can the Vermont Supreme Court Overrule the U.S. Supreme Court on DNA Databases? July 11, 2014, http://for-sci-law-now.blogspot.com/2014/07/state-v-medina-can-vermont-supreme.html
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Friday, 11 July 2014

State v. Medina: Can the Vermont Supreme Court Overrule the U.S. Supreme Court on DNA Databases?

Today the Vermont Supreme Court struck down as unconstitutional Vermont’s law requiring individuals charged with any felony to submit to DNA sampling. The court reached this conclusion in a set of consolidated cases led by State v. Medina.

This outcome might seem surprising following the decision of the U.S. Supreme Court in Maryland v. King, 133 S. Ct. 1958 (2013) (discussed in many previous postings). After all, in King, the Court reversed the decision of Maryland’s highest court that a similar Maryland statute infringed an arrestee’s right to be free from unreasonable searches and seizures.

The Vermont court faces no risk of reversal, however, for its opinion relies strictly on the protection against searches and seizures in the Vermont Constitution. Article 11 of this state constitution provides
That the people have a right to hold themselves, their houses, papers, and possessions, free from search or seizure; and therefore warrants, without oath or affirmation first made, affording sufficient foundation for them, and whereby any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his, her or their property, not particularly described, are contrary to that right, and ought not to be granted.

The U.S. Supreme Court is only supreme when it comes to federal law. A state normally is free to adopt a statute or to interpret its constitution so as to confer greater rights on its citizens that those recognized for everyone in the federal Constitution.  The Fourth Amendment to the U.S. Constitution declares that
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.

Thus, Maryland v. King merely held that the Maryland Court of Appeal erred in construing the Fourth Amendment to bar DNA sampling soon after arrests for certain felonies (because, given the state and individual interests affected, the DNA sampling was “reasonable”). Even though some of the same words appear in Vermont's Article 11, the Vermont Supreme Court has the power to interpret them differently.

Indeed, the Maryland Court of Appeal could turn around and invalidate the Maryland law notwithstanding the Supreme Court's opinion in King. Article 26 of the Maryland Constitution of 1867 specifies
That all warrants, without oath or affirmation, to search suspected places, or to seize any person or property, are grievous and oppressive; and all general warrants to search suspected places, or to apprehend suspected persons, without naming or describing the place, or the person in special, are illegal, and ought not to be granted.

A new arrestee in Maryland might argue that Maryland's statute requiring the seizure of DNA without an oath or affirmation setting forth probable cause and approved by a magistrate is tantamount to a proscribed “general warrant” or “grievous and oppressive.” Of course, this is essentially the argument that the Supreme Court rejected for the Fourth Amendment, but a state court can embrace such reasoning as applied to its state constitution.

And that is what the Vermont Supreme Court did today, by a vote of 3–2.

Coming up: Analysis of the reasoning in Medina.
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Sunday, 8 June 2014

Kansas Court of Appeals Rejects Post-King Challenge to DNA Collection on Arrest

This year, the Kansas Court of Appeals upheld the state's DNA-on-arrest law against a Fourth Amendment challenge. The result is not surprising in light of the Supreme Court's opinion in Maryland v. King. Still, there are some differences between the Maryland statute and the Kansas one, making the state court's decision not even to publish its opinion a little questionable.

Excerpts from the opinion and two quick comments on them follow:

State v. Biery
No. 109,344, 318 P.3d 1020 (Table)
2014 WL 802100 (Kan. Ct. App. Feb. 28, 2014)

PER CURIAM.

In the early morning hours of May 12, 2012, Hutchinson police observed a white male out walking. The officers approached, without lights or sirens activated or weapons drawn, and asked for identification. Police learned the man was [Willie] Biery and there was an outstanding arrest warrant for his failure to appear for a probation violation hearing. Biery was arrested.
At the jail, Biery emptied his pockets and revealed a small plastic baggie containing methamphetamine. Biery was charged with possession of methamphetamine and booked into the jail for both violations. Because possession of methamphetamine is a felony and his DNA was not on file, Biery was asked to provide a DNA sample, via buccal mouth swab ... . Biery refused. ...

Biery was [found guilty of] refusing to give a DNA sample , in violation of K.S.A.2011 Supp. 21–2511(e)(2). ...

On appeal, Biery's sole issue is whether the statutory scheme for the collection, handling, and storage of DNA samples ... is a violation of the Fourth Amendment to the United States Constitution and § 15 of the Kansas Constitution Bill of Rights. ...
The recent United States Supreme Court decision in [Maryland v.] King, 133 S.Ct. 1958 [2013)], addressed this issue ... As part of their standard procedure for a person arrested and charged with felony offenses, Maryland police took a DNA sample by buccal swab ...

In determining whether the warrantless search was reasonable, the United States Supreme Court held the DNA collection statute served a legitimate government interest by providing a safe and accurate way to process and identify the persons taken into custody, reducing risk to police and those in police custody, ensuring criminals are available to be tried, assessing the danger an individual might pose to the public before setting bond, and reducing the possibility of innocent persons being wrongfully held. ... The Court also noted DNA collection is a search incident to a lawful arrest which, even lacking individual suspicion, is virtually unchallenged in American jurisprudence. ...
Hmm, the Supreme Court did not uphold the DNA collection in Maryland because it fell within the "search incident to arrest" exception to the warrant requirement. That exception only allows to police to search a person and his immediate surroundings to prevent the individual taken into custody from using a weapon or destroying evidence. King applied a balancing test to recognize what is effectually a new exception.

Because the search was minimally intrusive, served a legitimate government interest, was reasonable due to an arrestee's reduced expectation of privacy, and protected against unwarranted disclosures, the Court affirmed the constitutionality of the Maryland statute. ...

... Biery claims the Maryland statute at issue in King is significantly different than the one in place in Kansas ... . Thus, ... Biery argues the Maryland statutory scheme was deemed constitutional because it provided sufficient safeguards against the accidental disclosure or misuse of such samples. Biery claims the Kansas statute lacks such safeguards and, therefore, fails to pass constitutional muster. ...

... Because ... the Kansas Bureau of Investigation (KBI) [must] comply with national standards regarding the collection and maintenance of DNA records, the State argues K.S.A.2011 Supp. 21–2511 provides sufficient statutory safeguards to be considered constitutional under King. ...

The State is correct. ... In regards to the dissemination of DNA information, Kansas law only allows release of DNA records and samples to “authorized criminal justice agencies.” ... Finally, the overall process is governed by the KBI, which “shall promulgate rules and regulations” for the collection and maintenance of samples; expungement and destruction of samples; and procedures in compliance with national standards for DNA records. ...
The Kansas statute differs in a couple of ways that the court does not mention. It applies to a broader class of crimes than the Maryland law. It does not defer the DNA profiling until after an arraignment. It does not require the destruction of samples and profiles if there is no conviction. Apparently, the Kansas court did not consider these differences significant, and it proceeds to present the weaker Kansas provision for expungement as an argument for the reasonableness of the Kansas law.

We pause to note the charges leading to Biery's felony arrest have since been dismissed following the suppression of the evidence against him. ... With the dismissal of his case, K.S.A.2011 Supp. 21–2511(j)(1)(B) provides ... for ... a procedure which allows the defendant to petition to expunge and destroy the DNA samples and profile record in the event of a dismissal of charges, expungement or acquittal at trial.

Had Biery provided a sample, he could now proceed to ask the KBI to expunge and destroy his DNA sample. ...

Biery was lawfully under arrest for a felony at the time the buccal swab was requested. K.S.A.2011 Supp. 21–2511(e) requires that any person subject to a valid felony arrest to submit a buccal swab. The statute does not violate the Fourth Amendment to the United States Constitution or § 15 of the Kansas Constitution Bill of Rights and is constitutional. ...
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Monday, 24 March 2014

What Is Wrong with People v. Lowe? More on DNA-on-Arrest Laws After Maryland v. King

Less than 24 hours before the U.S. Court of Appeals for the Ninth Circuit issued an opinion that avoided addressing the constitutionality of California's all-felony-arrest DNA database in the light of the Supreme Court's opinion in Maryland v. King, the California Supreme Court granted review to confront this question. The case, People v. Lowe, already has generated two opinions from California's Fourth District Court of Appeal.

In its first opinion, the California Court of Appeal concluded that
[T]he legitimate governmental interests promoted by the warrantless collection of DNA samples, including buccal swab samples, from felony arrestees who are taken into custody upon probable cause, far outweigh the arrestees' privacy concerns. Our conclusion is based on the following five reasons: The felony arrestee's diminished privacy interests; the de minimis nature of the physical intrusion involved in the collection of a buccal swab sample; the carefully limited scope of the DNA information that is extracted; the strict limits on the range of permissible uses of the DNA information obtained and the significant criminal penalties imposed upon those who violate those limitations; and the strong law enforcement interests in obtaining arrestees' identifying information, solving past and future crimes, deterring future criminal acts, and exonerating the innocent.
No. D059007, 2012 WL 5918717, Nov. 27, 2012, at *12 (unpublished opinion).

The California Supreme Court then directed the Court of Appeal to reconsider the matter in light of the U.S. Supreme Court's decision in Maryland v. King. See 165 Cal. Rptr. at *110. The Court of Appeal responded by recycling its original opinion with some quotations from King spliced in. It repeated the "five reasons" paragraph, moving a few words around. Id. at 121-22. It added four paragraphs to show that "[o]ur decision is consistent with the United States Supreme Court's recent majority decision in King," id. at 122, and called it a day.

Apparently, some of the California Supreme Court Justices believe that there is more to say about the possible distinctions between the Maryland law and the California one — either to establish that one some of the differences between the two laws matter or to confirm the Court of Appeal's conclusion that they do not.

Elsewhere, I have argued that the Supreme Court could invalidate a system like California's without overruling King (Kaye 2014). But I doubt that the Justices in the King majority would have any inclination to strike down any DNA-on-arrest law, and, as the latest Lowe opinion indicates, some of their statements in King make it easy to extend the case to California's law. 1/

Whatever lies behind the grant of review, the California Supreme Court can improve on the opinion in Lowe. First, it should not claim, as the Court of Appeal did, that "[t]he primary purpose of the amended DNA Act is to identify arrestees" in the sense of establishing who is who. Although California collection of DNA on arrest serves more than one purpose, the primary purpose of Proposition 69 is to solve and deter more crimes. 2/ Second, if the state supreme court chooses to include in a balancing test the value of capturing arrestees in the DNA database for solving crimes, it should recognize that this approach differs from the more contrived balancing in King. Third, if the supreme court does balance in this context, it should be careful about what it puts on each side of the balance. Thus, it should repudiate the view that arrestees have "diminished privacy interests." Their interests in privacy are no less valuable than anyone else's. The arrest is salient because it brings to bear state interests that would not otherwise be present, but it does not diminish the weight of anyone's Fourth Amendment interests. Fourth, the supreme court should avoid the Court of Appeal's incoherent reasoning about what triggers "totality of the circumstances" balancing. 3/ Finally, any opinion should avoid the phrase "junk DNA" and should describe the information content of DNA profiles in terms that are less easily confused with a different scientific issue (see Greely & Kaye 2014).

Notes
  1. See also Haskell v. Harris, No. 10-15152 (9th Cir. Mar. 20, 2014) (M. Smith, J., concurring)); Murphy (2013). 
  2. The Declaration of Purpose begins as follows: "Our communities have a compelling interest in protecting themselves from crime." Text of Proposed Laws, Proposition 69.
  3. The Court of Appeal first claimed, on the basis of the Supreme Court's anomalous opinion in Samson v. California, 547 U.S. 843 (2006), that "whether a particular search meets the reasonableness standard is judged by examining 'the totality of the circumstances.'" Then it contended that instead of judging whether every particular search is reasonable under so fluid a standard, the judgment is to made under the categorical rule that "[s]ubject only to a few well-delineated exceptions, warrantless searches are per se unreasonable under the Fourth Amendment." Then, it applied a balancing test, not at the level of a particular search, but at a programmatic level, to conclude that the California law satisfied the Fourth Amendment. Recognizing a categorical exception to the per se rule against warrantless searches would be one way to avoid such confusion. E.g., Kaye (2013).
References
Acknowledgment
Thanks to Erin Murphy for remarking on the grant of review in Lowe.
Previous Postings on the Aftermath of Maryland v. King

Previous Postings on the Opinions in Maryland v. King
  • Maryland v. King No. 1: Quick Thoughts, June 3, 2013, http://for-sci-law-now.blogspot.com/2013/06/maryland-v-king-no-1-quick-thoughts.html
  • Maryland v. King No. 2: Was There a Search?, June 7, 2013, http://for-sci-law-now.blogspot.com/2013/06/maryland-v-king-no-2-was-there-search.html
  • Maryland v. King: Interlude, June 9, 2013, http://for-sci-law-now.blogspot.com/2013/06/maryland-v-king-interlude.html
  • Maryland v. King No. 3: Bertillonage as Precedent, June 12, 2013, http://for-sci-law-now.blogspot.com/2013/06/maryland-v-king-no-3-bertillonage-as.html
  • Maryland v. King: A Digression on Ellipses, Actual Innocence, and Dr. Mengele, June 13, 2013, http://for-sci-law-now.blogspot.com/2013/06/maryland-v-king-digression-on-ellipses.html
  • Maryland v. King: “Quite a Worldview”, June 15, 2013, http://for-sci-law-now.blogspot.com/2013/06/maryland-v-king-quite-worldview.html
  • Maryland v. King: The Tenth Justice (Stevens) Votes, June 15, 2013, http://for-sci-law-now.blogspot.com/2013/06/maryland-v-king-tenth-justice-stevens.html
  • Maryland v. King: When Being Smart and Witty Is Not Enough, Nov. 27, 2013, http://for-sci-law-now.blogspot.com/2013/11/maryland-v-king-when-being-smart-and.html
  • Maryland v. King: The Dissent's Ten Second Rule, Nov. 29, 2013, http://for-sci-law-now.blogspot.com/2013/11/maryland-v-king-dissents-ten-second-rule.html
  • Blast Off for King from Florida's Space Belt? Not Quite, Feb. 26, 2014, http://for-sci-law-now.blogspot.com/2014/02/blast-off-for-king-from-floridas-space.html
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Saturday, 22 March 2014

The Ninth Circuit's Minimal Opinion in Haskell v. Harris

Two days ago, eleven judges of the Ninth Circuit issued a long awaited opinion in Haskell v. Harris. 1/ The en banc court ruled against the plaintiffs challenging California's DNA-on-arrest law. However, the court did not address their arguments and has not ended the case one way or the other.

Instead, the court simply said that the Supreme Court's opinion last June in Maryland v. King 2/ means that at least some applications of the California law are constitutional; consequently, "plaintiffs cannot show that the district court abused its discretion in denying a preliminary injunction that would apply to the entire class." The court’s final words were "[i]f plaintiffs believe they're entitled to a preliminary injunction as to a smaller class, they are free to seek it from the district court and we will review it if and when it is presented to us."

The Wrong Class -- or the Wrong Relief?

There is a problem with this logic, at least as the court expressed it. The certified class included “[a]ll persons who are, or will be, compelled to submit to the search and seizure of their body tissue and DNA . . . solely by reason of the fact that they have been arrested for, or charged with, a felony offense by California state or local officials.” As to some members of this class, the en banc court indicated, DNA sampling, analysis, and trawling clearly would be permissible under King. But what could the smaller class be? Who are the people arrested in California who "clearly" are constitutionally subject to DNA sampling and retention as it is done in California?

The en banc court gives no answer, but King most clearly applies when:
The DNA sampling [is] confined to violent crimes and burglaries; officials [have] no discretion to pick and choose which arrestee’s DNA to acquire; a physical intrusion into the body [takes] place; the loci tested reveal[] no sensitive medical or other privacy-laden information; the state trawl[s] the forensic index (of unsolved crime scene profiles) only for matches to the arrestee (and not for partial matches that might point primarily to immediate relatives); the profiling and uploading occur[s] after formal charges; and the samples are destroyed if a conviction does not ensue. 3/
The people in these conditions cannot be part of a class entitled to any relief. However, this excludes, well, no one in California. Even people arrested for violent crimes and burglaries (as in Maryland) are at risk for familial searching (although the Haskell plaintiffs did not rely on this concern as a basis for distinguishing King), and they are not entitled to automatic destruction of samples (as are arrestees in Maryland). Moreover, everyone arrested in California for any felony could have a sample analyzed and the profile trawled before any judge agrees with the state that there is at least probable cause to believe that the arrestee has committed a felony.

Given this set of arguably distinguishing factors, it is not so obvious what "smaller class" the court had in mind. Even after King, the class need not change, but the injunction (if one were warranted) would have to be tailored to different subclasses. For example, arrestees charged with violent crimes or burglaries would not be entitled to the blanket order that plaintiffs requested back in 2009. At that time, plaintiffs asked the district court to "enjoin[] Defendants ... from the compulsory search, seizure, collection, analysis, and/or retention of biological samples from any member of the Plaintiff Class ... until and unless he or she is actually convicted of a felony offense, unless such search, seizure, collection, analysis, and/or retention is supported by a warrant issued on probable cause ... ." 4/ But the entire class still might be entitled to some relief. If we were to suppose that no departure from the Maryland law were permissible —which is the most that the California plaintiffs could hope for — even California arrestees charged with Maryland-type felonies would be entitled to an order requiring the state (1) to delay that profiling and uploading until they are bound over for trial, (2) to destroy their DNA samples if they are not convicted, and (3) to refrain from using their profiles in familial searches.

Because plaintiffs sought only a one-size-fits-all injunction, and that size was too big, the district court correctly denied that particular relief. But variable relief would be consistent with plaintiffs' theories of the Fourth Amendment. This, I think, is what the en banc court was getting at in referring to a smaller class. And, if the court reached a consensus solely on this procedural ground, then it is appropriate to allow plaintiffs to amend their complaint in light of King. 5/

A Concurring Opinion

One judge already disagrees with this construction of the per curiam opinion. Judge Milan Smith, who wrote the panel opinion upholding the California law well before Maryland v. King, 6/ read “the per curiam opinion [as holding] that California's DNA collection law is clearly ‘constitutional as applied to anyone arrested for, or charged with, a felony offense by California state or local officials.’” (Emphasis added).

I doubt that this is a correct reading of the per curiam opinion, but I have to say that the other judges could have been clearer about their desire to avoid opining on the limits of King. The other en banc judges wrote that the case turned on the answer to the question, "Is California's DNA collection scheme constitutional as applied to anyone 'arrested for, or charged with, a felony offense by California state or local officials?'" The answer, they claimed, "is clearly yes." So does "anyone" really mean "everyone," as Judge Smith claims, or does it mean "at least one," as I thought when I first read the per curiam opinion? Only the latter interpretation can be reconciled with the court's willingness to countenance a narrower class action.

Judge Smith denied that a complaint on behalf of a narrower class (or, better, a request for a more nuanced injunction) is viable. Surely, he contended, King decided all these fine points in favor of the state. The arguments in his concurring opinion, however, are not uniformly compelling.

Judge Smith wrote that "[t]he majority in King expressly recognized that its decision 'implicates more than the specific Maryland law.'" 7/ But this observation hardly means that every variation of arrestee sampling in existence in 2013 is constitutional under the inherently vague balancing test adopted by the majority. Of the 28 states with arrestee DNA laws, "11 states require an arraignment or judicial determination of probable cause before a sample can be collected or analyzed." 8/ Suppose that the opinion in King had explicitly announced that this provision is essential to a finding of Fourth Amendment reasonableness. That would have contradicted Judge Smith's understanding of the opinion, but the decision still would have "implicate[d] more than the specific Maryland law." It would have pulled the rug out from under 17 states.

Thus, it is a stretch to infer from the King court's recognition of the obvious — that it was deciding a case of national interest — that is also was deciding on the propriety of every existing DNA-on-arrest law. That is not how the Anglo-American system of case-by-case adjudication works.

Neither does the concurrence gain much mileage from "the sky is falling" rhetoric in the King dissent. Judge Smith accepted at face value Justice Scalia's protestation that the result in King could be — indeed, would have to be — extended to reach the most minor of arrests. In oral argument, Judge Smith suggested that Justice Scalia had to be right. After all, said Judge Smith, "he was in the conference, he heard what the majority decided, and that's how he reads it. How can we read it otherwise?" 9/ Yet, it is a standard ploy of dissenting opinions to exaggerate the scope or sweep of the opinion they oppose, and Justices who participated in a conference on a case frequently disagree over the import of the opinions that eventually emerge.

That said, Judge Smith may well be correct in a Legal Realist sense. It is doubtful that the Justices in the majority in King would respond very differently to the other state laws. 10/ Given the phrasing in Justice Kennedy's opinion, the Chief Justice's earlier stay of the Maryland Court of Appeals decision, and the remarks of several Justices at the oral argument in King, it seems likely that those Justices would have no problem using their balancing test to uphold the California law despite all its differences from the Maryland's law. For the Ninth Circuit to have written an opinion striking down parts of California's system of DNA database system would have perilous. Nevertheless, the court of appeals has left the door open to doing so in this four-and-a-half-year-old case.

Notes
  1. No. 10–15152, 2014 WL 1063399 (9th Cir. Mar. 20, 2014) (en banc). The 11 judges, selected at random from the full court, are Chief Judge Alex Kozinski and Judges Harry Pregerson, M. Margaret McKeown, Raymond C. Fisher, Ronald M. Gould, Richard A. Paez, Richard C. Tallman, Johnnie B. Rawlinson, Milan D. Smith, Jr., N. Randy Smith and Paul J. Watford.
  2. 133 S.Ct. 1958 (2013).
  3. David H. Kaye, Why So Contrived? The Fourth Amendment Balancing, Per Se Rules, and DNA Databases After Maryland v. King, 104 J. Crim. L. & Criminology (forthcoming 2014).
  4. Class Action Complaint for Declaratory and Injunctive Relief, Haskell v. Brown, Oct. 7, 2009, at 22-23.
  5. Of course, the ACLU, which represents the plaintiffs, might conclude that it has no chance of prevailing on the theory that states cannot relax a single one of the various limitations written into Maryland's law. For instance, it might give up on those people who are charged with violent crimes or burglaries and contend only that individuals arrested for less serious felonies cannot have their DNA analyzed and uploaded before a judge determines that probable cause is present. This certainly would result in a narrower class. But the court's premise that a subclass of arrestees in California are identical to arrestees in Maryland is faulty. Because the California system does not include automatic sample destruction, everyone whose DNA has been collected on arrest in California has been treated differently. The opinion does not state that this is an insignificant difference, but unless that is what it means, it is hard to see why the ACLU must plead for a narrower class.
  6. Haskell v. Harris, 669 F.3d 1049 (9th Cir. 2012). For criticism of Judge Smith’s theory that “the Constitution's plain text” dictates “the ‘totality of the circumstances’ balancing test to determine whether a warrantless search is reasonable,” id. at 1053–54, see David H. Kaye, On the “Considered Analysis” of DNA Collection Before Conviction, 60 UCLA L. Rev. Disc. 104 (2013).
  7. The majority wrote that
    Twenty-eight States and the Federal Government have adopted laws similar to the Maryland Act authorizing the collection of DNA from some or all arrestees. See Brief for State of California et al. as Amici Curiae 4, n. 1 (States Brief) (collecting state statutes). Although those statutes vary in their particulars, such as what charges require a DNA sample, their similarity means that this case implicates more than the specific Maryland law. At issue is a standard, expanding technology already in widespread use throughout the Nation.
    Maryland v. King, 133 S.Ct. 1958, 1968 (2013). The technology of STR typing is standard and in widespread use, as are computer-searchable databases of the resulting profiles, but this does not make every use of the technology constitutionally acceptable. That the majority referred to the charges that trigger DNA collection as a "particular" that varies among states could signal that these Justices did not think it was terribly important, but the remark does not transform a dictum into a holding and does not mean that every variation is so benign as to be "not constitutionally relevant." Haskell, No. 10–15152, 2014 WL 1063399 (9th Cir. Mar. 20, 2014) (Smith, J., concurring).
  8. Nat'l Inst. of Justice, DNA Sample Collection from Arrestees, Dec. 7, 2012, http://www.nij.gov/topics/forensics/evidence/dna/pages/collection-from-arrestees.aspx.
  9. C-SPAN, Haskell v. Harris Oral Arguments, Dec. 9, 2013, at 6 min. 34 sec., http://www.c-span.org/video/?316703-1/haskell-v-harris-oral-arguments.
  10. Erin Murphy, License, Registration, Cheek Swab: DNA Testing and the Divided Court, 127 Harv. L. Rev. 161 (2013).
Acknowledgments

Thanks to Hank Greely and Erin Murphy for emails on these latest opinions in Haskell.
    Previous postings on Haskell v. Harris
    Previous postings on the opinions in Maryland v. King
    • Maryland v. King No. 1: Quick Thoughts, June 3, 2013, http://for-sci-law-now.blogspot.com/2013/06/maryland-v-king-no-1-quick-thoughts.html
    • Maryland v. King No. 2: Was There a Search?, June 7, 2013, http://for-sci-law-now.blogspot.com/2013/06/maryland-v-king-no-2-was-there-search.html
    • Maryland v. King: Interlude, June 9, 2013, http://for-sci-law-now.blogspot.com/2013/06/maryland-v-king-interlude.html
    • Maryland v. King No. 3: Bertillonage as Precedent, June 12, 2013, http://for-sci-law-now.blogspot.com/2013/06/maryland-v-king-no-3-bertillonage-as.html
    • Maryland v. King: A Digression on Ellipses, Actual Innocence, and Dr. Mengele, June 13, 2013, http://for-sci-law-now.blogspot.com/2013/06/maryland-v-king-digression-on-ellipses.html
    • Maryland v. King: “Quite a Worldview”, June 15, 2013, http://for-sci-law-now.blogspot.com/2013/06/maryland-v-king-quite-worldview.html
    • Maryland v. King: The Tenth Justice (Stevens) Votes, June 15, 2013, http://for-sci-law-now.blogspot.com/2013/06/maryland-v-king-tenth-justice-stevens.html
    • Maryland v. King: When Being Smart and Witty Is Not Enough, Nov. 27, 2013, http://for-sci-law-now.blogspot.com/2013/11/maryland-v-king-when-being-smart-and.html
    • Maryland v. King: The Dissent's Ten Second Rule, Nov. 29, 2013, http://for-sci-law-now.blogspot.com/2013/11/maryland-v-king-dissents-ten-second-rule.html
    • Blast Off for King from Florida's Space Belt? Not Quite, Feb. 26, 2014, http://for-sci-law-now.blogspot.com/2014/02/blast-off-for-king-from-floridas-space.html
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