Why Can't Maryland Continue to Check Arrestee DNA Profiles?

In the wake of Maryland’s peculiar decision this week holding its arrestee DNA database law unconstitutional “as applied” (King v. State 2012), the Balitmore Sun reported that “a bank of nearly 16,000 DNA samples collected since January 2009 will remain in limbo. The samples were run through a database of cold-case evidence for matches” (Wenger, 2012). Presumably, this means that 16,000 DNA samples in the state’s possession (1) come from arrestees who have not been convicted (at least, not yet); (2) these samples already have yielded DNA profiles (digital records of DNA features used in making identifications); (3) the profiles are in a computer database that allows them to be searched against the profiles recovered from crime scenes or victims (in hot and cold cases, new ones and old ones, alike); but (4) the state has chosen to stop using the existing arrestee database. Thus, the Sun quotes a state police spokesman as saying that "The DNA database will remain inactive and the searching of any information in it ceased today" (Ibid.).

But why? Let’s assume that the King case was correctly decided — something that is not apparent from the reasoning given in the opinion and the cases cited there (Kaye, in press). It seems clear that trawling the crime-scene database for a match to an arrestee is not a search under the Fourth Amendment. Trawling and retrawling does not invade bodily integrity; neither does it reveal facts about the individual’s genome that are not already known. These are the only two interests that the Maryland judges in the majority provided as the basis for their opinion. The only interest that the database trawl implicates is the interest in not being tied to a crime-scene. Under rulings of the U.S. Supreme Court, a suspect’s bare desire not to be linked to a crime does not create a “reasonable expectation of privacy” (e.g., United States v. Jacobsen 1984). Government action that invades no reasonable expectation — in this case, retrawling — does not constitute a “search or seizure.” It is outside the scope of the Fourth Amendment.

But even if retrawling cannot constitute a search — a conclusion that has clear support in federal case law (Boroian v. Mueller 2010; Kaye 2011) — what about the illegality (according to King) in acquiring the DNA before the suspect has been convicted?  Does not the use of the illegally acquired and profiled DNA taint any hit made in the later trawl?  Is not the hit “the fruit of the poisonous tree,” as the courts call it, that must be excluded as evidence in a criminal case?

The answer could be “yes but no.” Yes, the trawl is the fruit and normally would have to be excluded from the state’s case in chief. Here, however, the illegal search (and its fruits) need not be excluded as evidence under the Supreme Court’s holding in Illinois v. Krull, 480 U.S. 340 (1987). Krull holds that the exclusionary rule does not apply when police conduct a warrantless, suspicionless, administrative search pursuant to a state law that later is found to be unconstitutional. That is precisely the situation here. The only “search” was the acquisition of the DNA for databasing, and it was conducted in good faith on the basis of a statute that seemed to be constitutional.

But surely this is too clever a legal argument. The good-faith exception supports (1) the acquisition of the DNA sample; (2) the laboratory analysis; and (3) all trawls conducted before the opinion in King. (So does the Supreme Court’s approach to the retroactivity of constitutional decisions.) This means that the lower courts on remand should uphold King’s original conviction, but retrawling after the court has ruled that the samples and profiles should not have been acquired goes beyond the situation in Krull. In that case, the police did no more than turn over the evidence they collected in good faith to the prosecution.

Thus, Maryland’s decision to keep the arrestee DNA database under wraps (at least until the Supreme Court rules on the practice or the Maryland court reconsiders the issue at some later time) is probably correct. But King should have no effect on “12 pending cases across Maryland that depend on such DNA evidence” or on the “65 arrests and . . . 34 convictions” (Wenger 2012) already obtained in good faith. Even if the five judges in the majority in King are right about the constitutional status of the law, the exclusionary rule does not apply to this previously acquired evidence.

References

• United States v. Jacobsen, 466 U.S. 109 (1984)
• Boroian v. Mueller, 616 F.3d 60 (1st Cir. 2010)
• King v. State, No. 68, 2012 WL 1392636 (Md. Apr. 24, 2012)
• David H. Kaye, A Fourth Amendment Theory for Arrestee DNA and Other Biometric Databases, 15 U. Pa. J. Const. L (in press)
• David H. Kaye, DNA Database Trawls and the Definition of a Search in Boroian v. Miller, 97 Va. L. Rev. in Brief 41 (2011)
• Yvonne Wenger, Md. Authorities Stop Post-arrest DNA Collection: Sampling Halted Pending Potential Supreme Court Appeal, Baltimore Sun, Apr. 27, 2012

Maryland's Highest Court's Opinion on Arrestee DNA Is an Outlier

Maryland's highest court is its Court of Appeals. Two days ago, in King v. State [1], this court became the first supreme court of any state to hold that taking a DNA sample from an arrestee is unconstitutional. But you would not know this from the court's opinion.

Instead, the Maryland court purports to follow "the Minnesota Supreme Court in C.T.L." Considering that the Minnesota Supreme Court did not decide C.T.L. and that it has yet to consider the routine practice of taking DNA prior to arrest [2], this is no small feat.

The majority opinion in King, penned by Judge Glenn T. Harrell, Jr., contains additional gaffes. It refers to Judge Marjorie Rendell of the U.S. Court of Appeals for the Third Circuit as a man, and it asserts that "Fourth Amendment analyses" are "more stringent" than "a First Amendment 'rational basis' review" -- whatever that may mean.

Of course, these infelicities do not mean that the opinion is wrong -- although it is long on description and short on analysis. The balancing of state and individual interests that is pivotal to the opinion is less than lucid. We can get a sense of the court's approach from its discussion of the individual interests that the opinion seeks to protect. To begin with, the Maryland court gives more weight than other courts do to the interest in being free from an unwanted but painless and relatively minor intrusion into one's body. Judge Harrell writes that DNA

is collected by swabbing the interior of a cheek (or blood draw or otherwise obtained biological material). While the physical intrusion of a buccal swab is deemed minimal, it remains distinct from a fingerprint. We must consider that “[t]he importance of informed, detached and deliberate determinations of the issue whether or not to invade another's body in search of evidence of guilt is indisputable and great.” Schmerber, 384 U.S. at 770.

The puzzle here is that, if the physical intrusion is indeed minimal, why is it of “great importance” to have a “detached . . . determination” in the form of a judicial warrant? It cannot be the peculiar notion that laboratory analysis to produce an identifying profile is a separate search requiring a warrant. If that were so, the laboratory analysis of “abandoned” DNA of a suspect also would require a warrant. This might be a reasonable position—but the King court does not retreat from State v. Williamson, 993 A.2d 626 (Md. 2010). There, the police recovered and then analyzed DNA from a drinking cup given to a suspect at a police station, and the Maryland Court Appeals flatly rejected the separate-search argument. Furthermore, if the “physical invasion” aspect of the DNA collection were of such great importance, the state could avoid the impact of King by changing the method for collecting the DNA. Instead of a buccal swab, the arrestee could be asked to place his fingers on a sticky pad to which some cells would adhere.

The interest that actually seems to be driving the opinion is not that the arrestee is compelled open his mouth so that some cells can be scraped from the inside of his cheek. It is, in the King court's words, the possibility that “the vast genetic treasure map that remains in the DNA sample retained by the State” will be read or released in violation of state law. But the opinion utterly fails to address whether the state’s possession of that unread map (the physical sample kept under lock and key) unreasonably interferes with a defined privacy interest. And even if it does, could not Maryland acquire the identification profiles -- data that are nothing like "[a] person's entire genetic makeup and history" -- and then destroy the physical sample to satisfy the court's oddly applied balancing test?

Despite its problems, both superficial and fundamental, King is not devoid of all redeeming value. For example, the court correctly distinguishes between the use of a biometric identifier for identification and its use of it for intelligence purposes. But the opinion sheds no new light on the constitutional issue and casts some grotesque shadows. Readers seeking a deeper analysis will have to look elsewhere [3].

References

1. King v. State, No. 68, 2012 WL 1392636 (Md. Apr. 24, 2012)
2. In re Welfare of C.T.L., 722 N.W.2d 484 (Minn. Ct. App. 2006)
3. David H. Kaye, A Fourth Amendment Theory for Arrestee DNA and Other Biometric Databases, University of Pennsylvania Journal of Constitutional Law, Vol. 15 (in press)

Postscript

Alan Lazerow pointed out that the court's opinion does not have the superficial flaws that caused my jaw to drop and pen to move. Thankfully, the opinion as now posted on Maryland's website and Westlaw have these blemishes removed.

Cross-posted to the Double Helix Law Blog.

Who is Nelson Acosta-Roque? (Part I)

According to the Department of Homeland Security, he is Victor Antonio Pecheca-Aromboles, an old cocaine dealer born in the Dominican Republic who served time in Pennsylvania in the early 1990s, was deported, and came back to the U.S. under an alias (via Puerto Rico, where he lived illegally for a few years), ending up in Anchorage as a waiter in a brew pub for the last ten years. [1] On the basis of a comparison of copies of fingerprint cards from Pennsylvania (for Pecheca-Aramboles) and New Jersey, Puerto Rico and Alaska (for Acosta-Roque), the government convinced the immigration judge and the Board of Immigration Appeals that the Anchorage waiter is the former Pennsylvania cocaine dealer.
The removal order is before the Ninth Circuit Court of Appeals. According to law professor Caleb Mason, who represents Acosta-Roque, the “the only question is the weight of an alleged 8-point match: is that enough, standing on its own, to warrant a finding of identity by clear and convincing evidence?” [1] To address this question, Professor Mason enlisted the aid of 39 “Scientists and Scholars of Fingerprint Identification as Amici Curiae” to file a brief in support of his client. The brief, which was written by Simon Cole of the University of California at Irvine, describes the expert’s testimony as problematic, unjustified, inadequately supported, vague, and groundless. [2]
My reading of the transcript, however, suggests that the issue on appeal is not really whether “an alleged 8-point match” is enough. The four ten-print cards were compared by Susan R. Blei, the supervisor of Alaska’s Criminal Records and Identification Bureau. Ms. Blei’s qualifications consisted of about seven weeks of training courses over the years, many “educational conferences” on AFIS (the Automated Fingerprint Identification System) organized by NEC, and many years of on-the-job experience. She never testified that there was a match at exactly eight points of comparison. She testified that she likes to have at least eight points before signing off on an identification, but she did not give the number of features on which she relied to form her “100% certain” opinion that all the ten-print cards came from one and the same individual. In essence, she said, “I compared, I counted, I concluded (and so did my unnamed verifying examiner).” She provided this ipse dixit with the encouragement of the government’s counsel. Thus, the issue should be whether the opinion of a fingerprint examiner, presented in this conclusory, “trust-me” fashion, can amount to clear and convincing evidence—the standard the government has to meet to establish that Acosta-Roque obtained his permanent resident status fraudulently, having been deported under a different name.
Is a fingerprint analyst’s assertion of identity clear and convincing proof when it lacks any meaningful description of the process, when it contains no statements that would show that the examiner followed accepted protocols (beyond the fact that the examiner took some short courses and has years of experience), and does not indicate the examiner’s performance on rigorous tests of her proficiency? There is at least a decent argument that it does not.
Related questions are whether the “trust me” testimony in this case met professional and ethical standards and whether existing scientific research warrants the claim of 100% certainty. I shall comment on some aspects of these questions, and on the positions of the “scientists and scholars of fingerprint identification,” in later postings.
References
1. Caleb Mason, Scientific Validity of Fingerprint Comparison: New Case and Amicus Brief (Mar. 5, 2012), http://prawfsblawg.blogs.com/prawfsblawg/2012/03/scientific-validity-of-fingerprint-comparison-new-case-and-amicus-brief.html.
2. Brief of Scientists and Scholars of Fingerprint Identification as Amici Curiae in Support of Petitioner and in Favor of Reversal, Acosta-Roque v. Holder, No. 11-70705 (9th Cir., Mar. 8, 2012).

Latent Fingeprint Identification for a New Generation: The NIST Report

Last month, after three-and-one-half years of seemingly interminable meetings, the Law Enforcement Standards Office at NIST (the National Institute of Standards and Technology) released a comprehensive report on improving the practice of latent print examination for criminal identification. It can be downloaded as one big pdf file. My views are not those of an objective observer (I was the editor and an author of the report), but I can say with 100% confidence that the book should be of interest to lawyers who encounter fingerprint evidence, not to mention all fingerprint analysts and many other individuals concerned with the production and delivery of forensic science evidence.

The oversized working group included both “insiders” (fingerprint examiners and representatives of professional organizations) and “outsiders” (psychologists, statisticians, engineers, law professors, etc.). Like most expert groups charged with making scientific assessments and recommendations for best practices, the group did not conduct new research, but it reviewed and described a substantial body of existing work in the forensic sciences, cognitive science, human factors, and law.

The group was hardly unanimous on every issue, but it succeeded in addressing the larger issues that have been prominent in the modern literature and cases on fingerprint identification — issues such as the measurement of error rates in fingerprint examinations, the role of statistical and intuitive methods in drawing inferences about identity, the scientific foundations of the discipline, and the ethical and legal considerations in reporting and testifying about laboratory findings.

One suggestion in the report regarding the last item is that the fingerprint community needs to be open to rethinking its historical postulates about what “identification” means and should adopt more cautious ways of describing the implications of similarities in latent and exemplar prints. Thus, a summary paragraph notes that

[W]ays to describe the possible association include statements about the strength of the evidence (the likelihoods) or the posterior probability. With appropriate data and validated modeling, such statements could be quantitative . . . , but less precise qualitative descriptions of the strength of the evidence or the source probability also are possible. . . . Given the current state of scientific and professional knowledge, . . . it is best to avoid testimony based on the theory of global general uniqueness. [E]xaminers [should] not testify to an identification to the exclusion of all other individuals in the world, [and] other, more conservative methods for conveying the probative value of a match [are available]. . . . The Working Group did not reach a consensus on which of these alternatives to universal-individualization testimony is best.

The alternatives listed in the report do not include statements like "it is a practical certainty that the prints are from the same finger." They do include the more radical suggestion that experts should avoid source attributions in favor of statements about "likelihoods." This a bit of statistical jargon that I won't take the time to explain here. The book contains a sample laboratory report that presents an example of the strength-of-the-evidence approach.

Reference

Expert Working Group on Human Factors in Latent Print Analysis, NIST, Latent Print Examination and Human Factors: Improving the Practice through a Systems Approach: The Report of the Expert Working Group on Human Factors in Latent Print Analysis (David H. Kaye ed. 2012), available at http://www.nist.gov/customcf/get_pdf.cfm?pub_id=910745

The Newest from the Ninth Circuit on Arrestee DNA Databases

As of today, the Ninth Circuit Court of Appeals has twice upheld the constitutionality of DNA collection before conviction (DNA-BC). The first opinion came in United States v. Pool, 621 F.3d 1213 (9th Cir. 2010). There, the panel applied a totality-of-the-circumstances balancing test to uphold the federal arrestee law. However, the full court promptly agreed to rehear the case en banc (thus vacating the opinion in Pool).

At that point, another challenge to DNA-BC was pending. Haskell v. Brown, 677 F.Supp.2d 1187 (N.D. Cal. 2009), was a class action brought to enjoin enforcement of the California Proposition that initiated DNA arrestee sampling in that state. Determining that this law was, on balance, constitutionally reasonable, District Judge Charles Breyer, denied the request for a preliminary injunction. Plaintiffs appealed this ruling.

With eleven Ninth Circuit judges stirring the pot in Pool, Haskell moved to the back burner. But then Pool pled guilty, and the en banc court dropped his case as moot. Pool, 659 F.3d 761 (9th Cir. 2011) (en banc). Hence, the Haskell panel returned to work.

Today the case boiled over with the release of the panel’s opinion. As in Pool, the court split 2-1 in favor of DNA-BC. The two judges in Haskell to side with the state were Milan D. Smith, Jr., and James Dale Todd, a senior district judge for the Western District of Kentucky. Judge William A. Fletcher wrote a sharp dissent. Judge Smith devoted much of his majority opinion to refuting Judge Fletcher’s dissent. As a preliminary matter, they disagreed over whether Friedman v. Boucher, 580 F.3d 847 (9th Cir. 2009), a previous Ninth Circuit case not even involving a DNA database forced the court’s hand here. Judge Smith correctly wrote that “very broad dicta” in the case did not compel any particular result in Haskell.

With the path cleared, Judge Smith asked whether the “totality of the circumstances” were such that DNA-DB under California law was “reasonable” within the meaning of the Fourth Amendment. Judge Fletcher disputed the use of this amorphous standard. On this issue, neither opinion is convincing. Time after time, in case after case, the Supreme Court has repeated an important mantra—full fledged searches and seizures intended to produce evidence of criminal conduct are per se unreasonable, regardless of the other circumstances, when they are undertaken without a warrant and when they do not fall within a categorical exception to this warrant requirement. E.g., Kentucky v. King, 131 S.Ct. 1849 (2011); City of Ontario v. Quon, 130 S.Ct. 2619 (2010); Katz v. United States, 389 U.S. 347, 357 (1967). Therefore, it will not do to state, as Judge Smith blandly did, that totality-of-the-circumstances balancing is the norm in Fourth Amendment cases. To the contrary, it is an anomaly that has been used only in two Supreme Court cases (for searches involving probationers or parolees). Upholding DNA-BC therefore requires showing that the program falls within an established exception—or recognizing a new exception to accommodate the acquisition of fingerprints, photographs, and now, DNA profiles for use in databases. The former move is possible but takes considerable effort. The latter would be the more candid and convincing mode of analysis.

But just as the Haskell majority’s leap to totality balancing is largely unjustified [update of June 16, 2013: The Supreme Court in Maryland v. King made an attempt to justify such balancing and used it to uphold a system of routine DNA sampling before conviction], the dissent’s theory of why DNA-BC is unconstitutional is groundless. According to dissenting Judge Fletcher, the Supreme Court held in Hayes v. Florida, 470 U.S. 811 (1985), and Davis v. Mississippi, 394 U.S. 721 (1969), that identifying information (fingerprints, in those cases) “may not be taken from an arrestee solely for an investigative purpose, absent a warrant or reasonable suspicion that the [information] would help solve the crime for which he was taken into custody.” This characterization overlooks the most critical facts in the cases and the explicit reasoning of the opinions. Justice White’s majority opinion in Hayes could not have been clearer in explaining that the cases simply hold “that transportation to and investigative detention at the station house without probable cause or judicial authorization together violate the Fourth Amendment.” 470 U.S. at 815. That the fingerprints were used for investigative purposes and not just to establish the true identities of the arrested suspects had nothing to do with the constitutional infirmity. “[T]he fingerprints ... were the inadmissible fruits of an illegal detention” (id. at 813) because “the police at that time were without probable cause for an arrest, there was no warrant, and [the suspects] had not consented to being taken to the station house.” Id. at 313-14. Not a single Justice dissented from this understanding of the issue. Yet, Judge Fletcher transformed the simple and unremarkable result in Hayes and Davis into a condemnation of all forms of DNA-BC. Judge Smith was kind to call this aggressive reading of the cases a “novel interpretation.”

The Haskell court also split on the outcome of the balancing test. The majority was quick to accept the state’s litany of interests in DNA-BC as weighty, whereas the dissent demanded more rigorous proof. Conversely, the dissent was quick to accept nonscientific speculations about the dangers of DNA profiles and the risks of misuse of retained DNA samples, whereas the majority was loath to invalidate today’s laws on the grounds that they might be misused or changed.

Further developments are likely in the Ninth Circuit. Of the six judges to vote in Haskell and Pool (three per case), two of them came from outside the circuit and sat by designation. Counting only the Ninth Circuit noses, the vote to uphold DNA-DB has been 2-2 — not exactly a stable alignment. Obviously, there is considerable turmoil among the Ninth Circuit judges, and an en banc order in Haskell seems probable.

Acknowledgments: Thanks to Jen Wagner for sending me a copy of today’s slip opinion in Haskell.

Cross-posted from The Double Helix Law Blog.

Government-sponsored Report on Latent Fingerprint Work in Criminal Investigation and Prosecution

From NIST's Office of Law Enforcement Standards (OLES), as posted on February 17, 2012: “Expert Working Group Reduces Human Error Analyzing Fingerprints.” Sounds great. So how has the group succeeded in reducing these errors? Alas, clicking on the link reveals that, as yet, the group has not prevented a single error, human or inhuman. But NIST has released a long overdue report prepared by an expert working group that it assembled and funded for an extended period.

The final 234-page report from the committee of 34 experts contains 34 recommendations to improve latent print examination in criminal investigations and in presentations of the findings to police, lawyers, judges, and juries. The committee believes that implementation of these recommendations eventually could reduce the incidence of errors in latent print work and in the understanding of the results. The recommendations are a kind of wish list with entries that range from studying how to test the vision of fingerprint analysts; to educating examiners “in the scientific method” and in probabilistic and statistical thinking; to creating “a culture” in which examiners can confess honest error without fear of punishment; to monitoring the day-to-day work and courtroom testimony; and to certification for all analysts and accreditation for all laboratories.

Lawyers will be interested in the admonishments in the report about insulating examiners from unnecessary extraneous information; contemporaneously documenting the thought processes of examiners; making complete reports available; and curbing exaggerated claims of conclusive identifications. Concluding that existing data does not permit reasonably accurate estimates of error rates in real-life fingerprint identifications, for example, the report insists that an “expert should not state that errors are inherently impossible or that a method inherently has a zero error rate.” Likewise, the report states that “latent print examiners should not report or testify, directly or by implication, to a source attribution to the exclusion of all others in the world.” However, the group of latent print examiners, forensic laboratory scientists and managers, psychologists, engineers, statisticians, and lawyers, was unable to agree on what statements should replace such well entrenched testimony.

Given these tensions and ambitions, will NIST's premature assertion that “Expert Working Group Reduces Human Error Analyzing Fingerprints” come true? One can only hope for the best.

--DH Kaye, Feb. 18, 2012

Irony: The NIST statement accompanying this report on error and human factors has errors of its own. The actual publication date was February 17, not February 9. Authors’ names are not always spelled correctly, and support staff are listed as authors. No doubt, this says something about human fallibility if not human factors.

Disclosure: The author of this note was a working group member and the editor of the report described here. See Expert Working Group on Human Factors in Latent Print Analysis, Latent Print Examination and Human Factors: Improving the Practice through a Systems Approach, Feb. 2012.

Genetic Geneology: Is Sarah Yarborough’s Killer a Mayflower Descendant?

In The Double Helix and the Law of Evidence, I remarked that “[s]urname prediction is a concept that has yet to be implemented in forensic science . . . ” (1, p. 211). Now, cold-case detectives investigating the 1991 rape and strangulation of a 16-year old girl in Seattle are looking for “a distant relative of Edward and Samuel Fuller, who crossed the Atlantic on the Mayflower in 1620 [and who] might even share their last name” (2).

Sarah Yarborough left home to take part in a dance-team competition one morning in December. She never returned. Six people had seen a man in his 20s, with shoulder-length blond hair, a trench coat and dark pants speaking with her or leaving a brushy area where her body was found. In the succeeding months, more than 3,000 tips poured in. DNA analysis excluded some suspects, but trawling offender DNA databases for an exact match produced no leads, and the killer remains unidentified.

Yet, other databases can be searched. “Genetic geneology databases” (3, p. 384) that use the paternally inherited Y-STR haplotypes that are of interest in anthropology are growing in popularity. Indeed, some are available on the web. At the suggestion of a scientist at the state crime laboratory, police turned to Identifinders of Huntington Beach, California. Presumably, the firm combed through the online databases to arrive at its conclusion that “there's a good chance the killer's last name is or was Fuller” (4) because “the killer is a descendant of Robert Fuller, who arrived in Salem, Mass., in 1630. Fuller was not himself on the Mayflower, but he was related to three passengers: Edward Fuller, as well as Edward Fuller's brother, Samuel, and 12-year-old son” (2).

The value (and accuracy) of this surmise remains to be seen. None of the tips the police received involve a Fuller (2), and many Fullers had nothing to do with that historic voyage. Moreover, the Mayflower Fullers may be multitudinous. After all, “there are tens of millions of people descended from the 102 passengers and about 25 crew members who arrived on the Mayflower . . .” (2).

Acknowledgment: Thanks to Gene Johnson for telling me about the case.

References

1. David H. Kaye, The Double Helix and the Law of Evidence (2010).
   
2. Gene Johnson, Awkward Twist over DNA Link in Teen's Slaying, Seattle Times, Jan. 12, 2012
   
3. John M. Butler, Advanced Topics in Forensic DNA Typing: Methodology (2011).
   
4. Gene Johnson, Mayflower Relative Sought in '91 Wash. Killing, Seattle Post-Intelligencer, Jan. 11, 2012

Cross-posted from The Double Law Blog