Maryland v. King: Are suspiconless DNA searches permissible for crime solving or suspect identification? (Probably, both).

dnaI’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.


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11 Responses

  1. Ken Rhodes says:

    I am baffled by the most fundamental argument in this whole case–calling a DNA swab a “search.”

    I fail to see how it’s fundamentally different than fingerprinting an arrestee, then checking his fingerprints against prints acquired in other active or unsolved cases.

    Should we require a warrant for fingerprinting, by calling it a “warrantless search?”

  2. Joe says:

    Since the swab is being inserted inside a person’s body, why would it not be a search, limited as it might be, as compared to the fingerprint, which if one wants to be technical, would be more of a seizure? If it was a pinprick, would it be different? Why?

    Scalia is wary about the breadth of fingerprinting. And, if fingerprinting was done in the same way as this procedure is, it would probably not be ‘fundamentally different.’ Has Ken Rhodes read the dissent, including the fact specific nature of the argument made?

  3. Joe says:

    My concern is more on how broad this opinion will be applied than anything. It’s like drug testing in schools. First, athletes. Then, chess club, though they lost a justice when they did that. Maybe, the limits cited by the majority are necessary to retain the five, though the usual suspects supported drug testing to belong to chess club. So …

  4. Ken Rhodes says:

    “Has Ken Rhodes read the dissent?”

    No, I have not. I have, however, read the majority opinion, and I find this statement to be convincing:

    Also uncontested is the right on the part of the Government, always recognized under English and American law, to search the person of the accused when legally arrested. …The validity of the search of a person incident to a lawful arrest has been regarded as settled from its first enunciation, and has remained virtually unchallenged. United States v. Robinson, 414 U. S. 218, 224 (1973). Even in that context, the Court has been clear that individual suspicion is not necessary, because the constitutionality of a search incident to an arrest does not depend on whether there is any indication that the person arrested possesses weapons or evidence. The fact of a lawful arrest, standing alone, authorizes a search. Michigan v. DeFillippo, 443 U. S. 31, 35 (1979).

    If you are *arrested* (not merely stopped or detained), it says unequivocally, you are automatically subject to being searched.

  5. Let’s get this straight. Police must have a valid search warrant to put a GPS tracking device on a car on the public streets to track the movements of the car, but not to stick a swab in the mouth of a person who has been arrested (but not had any level of that mere accusation made), huh? Which is more intrusive? Add to that the fact that DNA information can be kept forever, and be available for any purpose in the future and even past death? This seems awfully inconsistent to me.

  6. Orin Kerr says:


    Actually, the courts haven’t decided if a search warrant is needed to put a GPS tracking device on a car. The Supreme Court has decided that doing so is a search, but whether a warrant is needed remains open. In King, by contrast, it was conceded that the swabbing was a search.

    Also, King leaves undecided whether the “raw” DNA can be analyzed for other purposes beyond obtaining identity information under the same standard.

  7. Ken Rhodes says:

    In an earlier response yesterday, I was asked “Has Ken Rhodes read the dissent?”

    I replied “No, I have not. I have, however, read the majority opinion, and I find [it] to be convincing…”

    Well, After I wrote that I DID read the dissent, and I was disappointed (but not surprised). Mr. Justice Scalia uses over-the-top language and questionable analogies to overstate a case that still fails to convince me.

    At the bottom of all this, I am gobsmacked by the concession that a DNA swab is a “search” while a fingerprint is not. However, getting beyond that (IMO) absurdity which has been accepted in law, Scalia is dead wrong in his assertions about the Founding Fathers alleged imprimatur against searches. I am not an attorney, so all I can offer on my own is what I consider a lifetime of experience, reading, and common sense. However, I find that some pretty noteworthy attorneys agree with me. First, of course, were the majority of SCOTUS. And then this morning, I found this OpEd piece in the NY Times. The authors are professors of law at Yale and Georgetown, respectively.

  8. Joe says:

    Prof. Amar has various interesting opinions, including as to the 4A (e.g., he is no fan of the exclusionary rule), to reference that op-ed. He was on Chris Hayes last night and is a repeat player on MSNBC. I think he’s wrong here.

    Ken Rhodes didn’t answer my question as to the “search” nature of a pinprick. I still don’t know why he doesn’t agree with any of the nine justices that the swab is a search. To reduce your level of gobsmack-ery, let it be known that there are rules for fingerprinting too. The USSC on down have set standards there. Simply requiring the general public at large to be fingerprinting would be quite controversial on that level.

    The dissent also doesn’t deny you can be searched when arrested. Since you have now read it, you probably know this (in fact, the dissent accepts ‘special needs’ searches even beyond arrest) It is the nature of the search and the usage of its fruits that is specifically at issue here. Again, all nine justices suggest there are limits, the majority noting various (e.g., apparently the nature of the crime matters).