Maryland v. King: Are suspiconless DNA searches permissible for crime solving or suspect identification? (Probably, both).
posted by Babak Siavoshy
I’m thrilled to be guest-blogging at Concurring Opinions just in time for Maryland v. King, the Supreme Court’s decision today on the constitutionality of DNA testing. The Court held (5-4) that the police’s collection (and testing) of King’s DNA after his arrest for a violent crime, and pursuant to Maryland’s public safety statute, was a reasonable search under the Fourth Amendment.
Though the case’s up/down holding is straightforward enough, the majority’s rationale is not. Read in a vacuum, the majority opinion reads as a full-throated legal and policy defense of the government’s use of DNA to verify a suspect’s identification at various stages following a lawful arrest.
But this case—and indeed, the Maryland statute at issue—was not merely about the use of DNA testing for a routine purpose ancillary to police investigations, such as verifying a suspect’s identification. It was, instead, also about the use of suspicionless DNA searches as part of the police’s quintessential activity: investigating and solving crimes. And that is precisely the conduct which the majority’s opinion authorizes. (Do read Justice Scalia’s dissent, which argues this point persuasively).
In that vein, here’s what I take to be the majority’s honest holding: the government can engage in suspicionless and warrantless DNA searches of a suspect, including for investigating and solving crimes, in at least one context—when the subject of the search is lawfully arrested for a serious, even if unrelated, offense; and the search is performed as part of a routine, bounded, post-arrest procedure.
The police’s legitimate need to verify an arrestee’s identity, which takes up most of the majority opinion, is weak justification for this exception to the individualized suspicion and warrant requirements. The more plausible arguments supporting the majority’s holding are, instead, to be found (one might argue, buried) in Part V of the opinion: Suspicionless DNA searches are permissible in this context because persons lawfully arrested for violent crimes have diminished privacy rights, and DNA swabbing and testing within the bounds of the Maryland statute is (the Court says) relatively unintrusive in light of those diminished rights. (The Court calls these the “circumstances” of “diminished expectations of privacy [and] minimal intrusions,” citing McArthur, 531 U. S., at 330).
The Court’s decision in King is important and will have potentially far-ranging effects on how police conduct investigations. Even assuming the Court reached the right result (a question I haven’t addressed in this post), the case’s key question merited a more direct and forthright discussion than the majority opinion provides. For this reason alone, the majority invited, indeed, deserved, every quip and jab in Justice Scalia’s dissent.
The case raises some (but perhaps not so many) interesting doctrinal questions, which I’ll explore in a later post.