The
previous installment of this series described counsel’s answers to questions as to how DNA profiling is different from fingerprinting. After pointing out that “there are profound privacy concerns associated with the government's collection of an individual's DNA” because “when you evaluate the entirety of an individual's DNA, there is a great deal of personal information contained there,” counsel for Mr. King added that
Now, the government's response to that is essentially the "just trust us" defense; namely that the government is not looking at all that information, it is only looking at a certain subset of that information. But that has never been how this Court has analyzed privacy interests, at least outside the special needs context. Probably the closest analog is this Court's decision in Kyllo v. United States, where the Court said that it was of no moment that the heat-sensing device that was at issue in that case did not detect any information about the intimate details of activities within the home.
I think this is inaccurate (or at least incomplete, as oral argument often is). First, the Supreme Court has been willing to trust the government with highly private information.
Whalen v. Roe, 423 U.S. 1313 (1975), provides an illustration. In
Whalen, physicians prescribing, and patients receiving, prescriptions for certain addictive drugs argued that the patients’ right of privacy prevented New York from establishing a database of these drug prescriptions by compelling physicians to send to the state information on “the prescribing physician; the dispensing pharmacy; the drug and dosage; and the name, address, and age of the patient.” That an individual is being treated with powerful medications is profoundly informative, but New York insisted that it could be trusted to use the private information as mandated in the statute. The Court agreed, stating that even though “employees may violate the statute by failing, either deliberately or negligently, to maintain proper security of the computerized data bank, ... [t]here is no support in the record ... for an assumption that the security provisions of the statute will be administered improperly.”
Furthermore, a search warrant must describe with particularity the areas to be searched and the items sought. We trust the state to execute the search in accordance with these limits (although it can take advantage of its observations of other evidentiary items or contraband in plain view). Analogously, in
King, the Court can authorize DNA profiling strictly for regions of the genome that are useful for identification but not for drawing inferences about medical conditions or other matters that would not otherwise be apparent in an arrestee.
Second,
Kyllo is not particularly analogous to collecting biometric data from an arrestee. The
Kyllo Court determined only one thing — thermal-imaging of a home amounted to a search of the premises — even if it was only analogous to a very minor entry into the home (say, opening the door to look at a square inch of the floor). Writing for the Court, Justice Scalia maintained that “[i]n the home, our cases show, all details are intimate details, because the entire area is held safe from prying government eyes.” Moreover, he added, even “the relatively crude equipment at issue here ... might disclose, for example, at what hour each night the lady of the house takes her daily sauna and bath ... .”
Kyllo does not prevent the Court from considering the extent to which a practice that is not comparable to an invasion of the home affects legitimate privacy interests. One needs some further argument to conclude that the nature of the information being acquired is irrelevant. The security-privacy interest in the home is one thing. The pure informational-privacy interest in biometric data is another. The two cannot be automatically equated.
Although the inconclusive
Kyllo analogy might play some role in the opinions that ultimately emerge in
King, it did not engage any Justices at the oral argument. However, the Chief Justice did evince some doubt about the assertions about deeply private information, for he referred to the ease with which anyone can obtain genetic information:
CHIEF JUSTICE ROBERTS: You disclose all of this intimate private information when you take a drink of water and leave — leave the glass behind.
MR. SHANMUGAM: But, Mr. Chief Justice, as I said at the outset, we believe that there might still be — indeed, we think the better view under this Court's cases is that there would still be a Fourth Amendment search there. The only difference would be that you don't have the intrusion into the body that makes the question of whether or not there is a search here an easy one. ...
The Chief Justice’s question points to the shallowness of the public exposure theory that counsel for Mr. King had used to distinguish DNA molecules from fingerprint images. As I
noted yesterday, he seemed to say that fingerprinting was not a search just because the fingers that produce the print are visible in public. If that is enough to defeat a reasonable expectation of privacy for fingerprints, why does not the visibility of bodily fluids that contain the DNA sequences defeat the same expectation for those features?
The better argument is that, whether or not fingerprinting should be considered a search, the informational privacy interest in the entirety of the genome demands treating the acquisition of that information as a search that must be justified under the Fourth Amendment. I am sympathetic to this argument (and have made it myself in Kaye (2001)), but the Court’s opinions on the Fourth Amendment as a guarantee of purely informational privacy are less clear than one might think. It is true that some opinions speak of urinalysis as if it is a Fourth Amendment search in and of itself. But the case usually cited for this proposition,
Skinner v. Railway Labor Executives Ass'n, 489 U.S. 602 (1989), involved
both an informational privacy concern
and disquiet over the manner in which the sample is obtained. In addition to observing that urinalysis could “reveal a host of private medical facts … , including whether [someone] is epileptic, pregnant, or diabetic” the
Skinner Court considered the “process of collecting the sample to be tested, which may in some cases involve visual or aural monitoring of the act of urination, [that] itself implicates privacy interests.” Id. at 617.
The
Skinner Court may or may not have considered the privacy interest in the act of urination to be critical, but it remains a part of the holding in the case.
Skinner therefore does not conclusively resolve the question of what the outcome should be if the procedure the state uses to collect the bodily fluids does not itself offend the Fourth Amendment.
One answer is that it depends on the nature and extent of the information that the laboratory tests reveal. The point here, however, is that Mr. King’s answer that “there would still be a Fourth Amendment search there” is not all that apparent “under this Court’s cases.” (I examine some of these cases further in the articles listed at the end of this posting.)
Justice Alito did not seem inclined to accept the broad view that every form of DNA analysis, divorced from the process of collecting the DNA molecules, is a search “under this Court’s cases.” He asked:
JUSTICE ALITO: What if someone has a bloody shirt and throws it away in the trash — in a public trash can along the street, you are saying that the police can't analyze that without a search warrant?
The unmistakable reference here is to
California v. Greenwood, 486 U.S. 35 (1988). There, a police officer acquired opaque, plastic bags left on the curb outside a house and picked up by a private trash collector. She opened the bags and located “items indicative of narcotics use.” The Supreme Court (in an opinion that I and many commentators on the case find less than fully convincing), reasoned
that respondents exposed their garbage to the public sufficiently to defeat their claim to Fourth Amendment protection. It is common knowledge that plastic garbage bags left on or at the side of a public street are readily accessible to animals, children, scavengers, snoops, and other members of the public. ... Moreover, respondents placed their refuse at the curb for the express purpose of conveying it to a third party, the trash collector, who might himself have sorted through respondents' trash or permitted others, such as the police, to do so. Accordingly, having deposited their garbage “in an area particularly suited for public inspection and, in a manner of speaking, public consumption, for the express purpose of having strangers take it,” ... respondents could have had no reasonable expectation of privacy in the inculpatory items that they discarded.
Id. at 40-41. Suppose, then, that the trash also contained Justice Alito’s bloody shirt. It is hard to imagine that the
Greenwood Court would have said that a person who has no reasonable expectation that the police will not paw through his garbage for narcotics paraphernalia reasonably could expect that they would not analyze the blood on the shirt.
Without mentioning
Greenwood, counsel pointed to a Fourth Circuit opinion:
MR. SHANMUGAM: The argument would be that the subsequent analysis of the DNA nevertheless still constitutes a search. And the most significant decision on this issue to date is the Fourth Circuit's decision in United States v. Davis, which I would encourage you to look at if you are interested in this issue, because it holds that the extraction of the DNA from an item that was lawfully in the government's custody still constitutes a search.
United States v. Davis, 690 F.3d 226 (4th Cir. 2012), is indeed “significant.” It is significantly different from every opinion on “abandoned” or “shed” DNA. Every appellate court to consider traces of saliva on envelopes, cups, bottles, and the like has held that the laboratory analysis is not a search because the individual who left the cells has no reasonable expectation of privacy in the DNA molecules.
Davis does not mention these cases (it is not itself an “abandoned” DNA case),* and the Supreme Court has long endorsed other court of appeals’ opinions treating laboratory analyses of legitimately acquired material as something less than Fourth Amendment searches. See
United States v. Edwards, 415 U.S. 800 (1974). Despite these obstacles, the Court of Appeals took the position that even though the police acquired the DNA without violating the Fourth Amendment, and even though the laboratory analysis was confined to the normal, identifying loci, the laboratory work violated a reasonable expectation of privacy and, hence, was a search.
The Supreme Court in
King is unlikely to adopt the Fourth Circuit’s position, for it can recognize that swabbing the inside the mouth for cells is a search even if it the government can be trusted to confine its use of the DNA to deriving strictly identifying features. In assessing the constitutionality of the entire DNA database system, it can consider how destructive that procedure is of personal integrity and informational privacy without embracing the conclusion that the mere act of “reading” the DNA is, in and of itself, a search.
Note*
The facts in Davis are rather unusual. Earl Davis showed up at a hospital saying that a robber had shot him in the leg. A police officer took went to interview him there. The officer took Davis’s street clothes, which were in a plastic bag under the hospital bed. The Fourth Circuit determined that the warrantless seizure was permissible because the clothes were in plain view and plainly were relevant to an investigation of the alleged robbery. The investigation led nowhere, but police later used the clothes to obtain Davis’s DNA profile in a murder investigation. His DNA exonerated him, but the police placed the DNA profiles in a local DNA database. It matched DNA found in a still-later murder-robbery case, and that was the match that led to Davis’s prosecution and conviction.References - David H. Kaye, On the “Considered Analysis” of DNA Collection Before Conviction, UCLA Law Review Discourse, Vol. 60, March 2013, available at http://ssrn.com/abstract=2187437
- David H. Kaye, A Fourth Amendment Theory for Arrestee DNA and Other Biometric Databases, 15 U. Pa. J. Const. L. No. 4 (forthcoming 2013), available at http://ssrn.com/abstract=2043259
- David H. Kaye, The Constitutionality of DNA Sampling on Arrest, 10 Cornell J. L. & Pub. Pol'y 455 (2001), available at http://ssrn.com/abstract=263145
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