With its decision in Maryland v. King [pdf], the Supreme Court finally stepped into the debate about the use of DNA databases in the criminal justice system. The United States now has the largest DNA database in the world, with 10.4 million offender profiles and 1.5 million arrestee profiles as of June 2013. In King, the Court was called upon to decide whether the Fourth Amendment prohibits the collection of DNA samples from arrestees without a warrant or probable cause, the traditional requirements of searches and seizures.
The majority opinion, written by Justice Kennedy, held that the collection of a DNA sample from an arrestee in these circumstances constituted a reasonable Fourth Amendment search, given the outcome of a balancing of interests between the government and the individual. In a sharply written dissent, Justice Scalia criticized the majority’s approval of searches that were conducted specifically for law enforcement purposes yet did not conform to traditional Fourth Amendment requirements.
While King affirms that DNA databanking in the criminal justice system is here to stay, the majority opinion, when considered with some of the Court’s prior Fourth Amendment decisions, raises at least three potentially troubling concerns about policing and genetic privacy.
First, Justice Kennedy’s majority opinion permits the police to use arrests in an instrumental manner to collect DNA samples from those persons whom the police suspect are involved in crimes unrelated to the crime of arrest. Alonzo King himself was arrested for assault, but was later linked to an unsolved rape because of the DNA sample generated from his assault arrest. Maryland police had no idea he was involved in the rape until a match was made in the state DNA database between the crime scene evidence and his sample taken because of his arrest on the unrelated assault. In rejecting King’s challenge to his compulsory DNA swab, Justice Kennedy noted that King was not subjected to the whims of police officers motivated by law enforcement interests, because state law required every person arrested for a qualifying offense to submit a sample.
While it is true that this aspect of DNA sampling did not permit the police to exercise any discretion, the majority fails to acknowledge an important source of unchecked police decision-making. What if the police have a hunch that a person is involved in crime A, but lack the basis to apply for a warrant to obtain a confirmatory DNA sample? Can they arrest the person for minor crime B for the purpose of getting a DNA sample? The answer under the Court’s prior decisions here is an unequivocal “yes.” In particular, the Court’s 1996 decision in Whren v. United States makes it clear that so long as the police have probable cause to arrest an individual, their subjective motivations for the arrest cannot be challenged under the Fourth Amendment. Because King ignores other possible exercises of police discretion, little protects individuals from being targeted for DNA collection under the guise of an arrest for a minor offense.
This leads to my second concern. A careful reader of King might point out that this concern about instrumental policing was already anticipated in the majority opinion. After all, the majority limits its holding to instances when the police arrest an individual for a “serious offense.” Justice Scalia’s dissent rightly focuses on this limitation. While the state law in question does limit arrestee DNA collection to certain serious crimes, there is little in the majority opinion to prevent legislatures from expanding the pool of eligible arrestees.
The chief culprit here is King’s balancing test. According to Justice Kennedy, when measured against the “quick and painless” swab of Alonzo King’s cheek, the government’s “interest in identification” is much weightier. The characterization of the interests here are dubious. King was much more concerned about the information Maryland gleaned from his cheek swab than he was about the brief intrusion into his body. Moreover, if the government’s interest in identifying arrestees is critical, why does the gravity of the arrest offense matter?
Legislatures might act upon this desire for more information in two ways. First, they could increase the types of arrestees eligible for compulsory DNA collection to include a larger group of felonies or even minor crimes. (This would follow the pattern of convicted persons, ever-increasing numbers of whom are now required to provide DNA samples.) Second, legislatures might also choose to make more legal violations subject to arrest, rather than only to citation. This would provide the police more opportunities—and thus more discretion—to decide which persons to arrest.
Finally, the King decision opens up one possibility that may not be obvious and yet is likely to be an important future issue: Terry stops that involve the compulsory collection of DNA. Brief investigative stops and limited searches, sanctioned by the Court in Terry v. Ohio, are part of standard police practice. The Supreme Court has made it clear that included within the scope of a legitimate Terry stop is an investigation into the suspect’s identity. If an investigation into one’s identity is an acceptable objective in the Terry stop context, the collection of DNA for that purpose would seem to be appropriate even in circumstances short of arrest.
While such “DNA Terry stops” are not now a part of routine policing, they may very well be in the near future. The technology for “rapid DNA analysis”—which would provide the police with fully automated DNA analysis outside of a lab—is currently under development. Indeed, the FBI in 2010 established a Rapid DNA Program Office to promote technological standards in the hope of producing a kit that will provide a DNA profile within two hours or less of sample collection.
None of these issues that I have raised here have yet arisen with any urgency. And certainly legislators could act to prevent or restrict some of these scenarios from coming to pass. The truth is, however, that most of the trends suggest the ever greater use of DNA sampling by law enforcement officials: a development that the King decision has only made easier.
*For a more extensive discussion of these issues, see Elizabeth E. Joh, Maryland v. King: Policing and Genetic Privacy, __ OHIO ST. J. CRIM. L. __ (2013, forthcoming).