Maryland v. King: What’s a “serious offense” (and, is the Fourth Amendment transsubstantive)?

This is a follow-up to my previous post on the Supreme Court’s recent decision in Maryland v. King, which upheld, over a scathing dissent by Justice Scalia, the constitutionality of DNA searches of arestees for “serious offenses” under Maryland’s public safety statute.  One open question after King is how the majority’s rule would apply to other states’ DNA collection statutes, which permit DNA collection for a broader range of offenses than does Maryland’s statute.

The King majority repeatedly limited its holding to DNA searches that followed arrests for a “serious offense.” But what counts as a serious offense?  This is a live question in Haskel v. Harris, the ACLU’s challenge to California’s DNA collection law (Prop. 69). According to the ACLU, California’s law would permit DNA collection for arrests on suspicion of “simple drug possession, joyriding, or intentionally bouncing a check.” An en banc panel of the Ninth Circuit is considering the case in light of Maryland v. King. If the ACLU’s characterization is correct, then California’s law may not survive intact under King’s “serious offense” limiting principle.

While the task of determining the seriousness of an offense as a triggering condition for a legal rule can be difficult–particularly in light of the patchwork of criminal laws that forms the quilt of our fifty-state, federalist system–it is not outside the province of what courts do. For instance, in Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010), the Supreme Court had to decide whether state or federal standards should apply in determining whether a person convicted of a second state drug possession offense committed an “aggravated felony” under the immigration laws, and was therefore subject to automatic deportation. (The Court ultimately held the drug possession conviction was not an aggravated felony).

Is the Fourth Amendment transsubstantive (and should it be)?

More generally, King’s “serious offense” principle raises questions about whether the Fourth Amendment is, or remains, transsubstantive.  The Supreme Court has previously suggested the Fourth Amendment is transsubstantive–namely, that all other things equal, the Fourth Amendment applies the same way regardless of the severity of the underlying crime that’s being investigated.  (Though I’m not familiar with the scholarship on this issue, it appears scholars agree this is the governing rule: see here and here).

Thus, in Mincey v. Arizona, 437 U.S. 385 (1978), the Supreme Court held that “the seriousness of the offense under investigation”–in that case, a homicide–does not, without more, create an exigent circumstance justifying a warrantless search. And the Court in Atwater v. City of Lago Vista, 532 U.S. 318 (2001), affirmed similar principles on the other end of the spectrum: “If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.”  The Atwater majority rejected the notion that the severity of the underlying offense being investigated (in Atwater, driving without a seatbelt) is a valid consideration in applying the Fourth Amendment’s reasonableness requirement to determine the government’s seizure authority. (See Atwater at 348; Whren v. United States, 517 U.S. 806 (1996)).

Does Maryland v. King change this?  If King‘s holding is limited to suspicionless searches of individuals arrested for “serious offenses,” then King suggests that, all other things equal, the seriousness and nature of a suspect’s underlying (suspected) crime affects whether and how the Fourth Amendment applies.  A similar view was recently expressed in Justice Alito’s concurrence in U.S. v. Jones, joined by three other justices, which argued the use of longer term GPS tracking for the investigation of “most offenses,” including Jones’s alleged drug trafficking, would be a search, but that persons suspected of “extraordinary offenses” (my read: terrorism) may be subject to different Fourth Amendment rules.

Put together, Jones and King suggest the nature of a suspect’s underlying (suspected) crime may be relevant to the scope of the Fourth Amendment’s limits at various stages of the government’s investigation of that suspect.  To my mind, these cases suggest a move away from the transsubstantive Fourth Amendment.  It will be interesting to see how the Ninth Circuit applies these principles in deciding Haskel v. Harris.

I’d love to hear whether CoOp readers think the Fourth Amendment should remain transsubstantive, or, as Professor Stuntz put it, whether the courts should “pay much more attention to the circumstances that separate some crimes, and some defendants, from others.”

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19 Responses

  1. Joe says:

    Atwater v. City of Lago Vista was closely decided, suggesting that there is room for debate here. I respect the majority’s argument there (Justice Souter was known for his wisdom) but given the breadth of action allowed under the 4A, it seems um reasonable that we don’t use the exact same procedures for all offenses. The lines drawn are complicated. I can understand Scalia-esque formalism here. But, in practice, realistically, it will be at least a bit Breyer-esque.

    Kennedy in his majority opinion here had shades of remarks in FLORENCE v. BOARD OF CHOSEN FREEHOLDERS where even minor offenders might be the Timothy McVeigh. Given the ultimate point (“identifying” persons arrested for ‘x,’ maybe minor crimes, doing ‘y,’ maybe very serious crimes) here, the “serious crimes” rule is a bit curious.

    Would seem more logical if the CRIME, not the CRIMINAL, being investigated (sorry … did I ruin it?) was the “serious” one.

  2. Babak Siavoshy says:

    Thanks Joe. New, invasive technologies also raise some interesting questions about whether the Fourth Amendment should apply differently depending on the severity of the crime. For instance, the California Attorney General’s office restricts familial DNA searches to the most serious crimes. This, to me, reflects a reasonable intuition that the use of “heavy artillery” is easier to defend when it’s limited to more serious offenses.

    The tougher question is whether that intuition is also reasonable as applied to the Fourth Amendment analysis (as the Court in King and Jones seems to suggest). I don’t know the answer to that question, but it’s an important one given the Court seems to be going in the direction it is.

  3. PrometheeFeu says:

    This is a bad idea and I have a cite for that: the French penal system. Under the French penal system, there is status called “garde a vue”. It is very similar to the US concept of a custodial arrest. There are however a bunch of restrictions of “garde a vue” depending upon the offense of which you are suspected.

    For instance, you cannot be placed in garde a vue unless you are suspected of a crime which is punished by imprisonment. Furthermore, while normally, you cannot be held for longer than 48 hours, you can be held for up to 92 hours if you are suspected of terrorism, or taking part in a criminal enterprise. (I am merely summarizing)

    This may sound great except that prosecutors (prosecutors are in charge of approving the garde a vue) can play with what crime they are suspecting you of by using greater including offenses. So if you are suspected of a minor assault which carries a mere fine, they can claim that they are suspecting you of a major assault which carries a jail sentence. And the state has nothing to lose because the fact that they over-suspected you does not carry any penalties for them.

    The problem is that if courts are under the illusion that rights are being protected because only major crimes lead to heavy-handed tactics, they will be more willing to allow such heavy-handed tactics at all. On the other hand, if the courts see that they are allowing heavy-handed tactics for even small crimes, they may be more willing to properly cordon-off these tactics.

  4. Joe says:

    #3 makes a good point,* but there are various lines drawn treating more serious crimes differently. We don’t have a right to a court provided lawyer for a crime with a top punishment of twenty days. Grand juries are for serious crimes. There are different rules for the death penalty and in some cases life imprisonment. etc.

    The word ‘may’ is notable. It works both ways. The state repeatedly has not restrained itself because even minor offenders will be burdened by such and such procedure. They will do it even for the minor cases. There is no easy answer.

    * Prosecutorial discretion is key here in various instances such as what is a third felony for a ‘three strikes’ law or a crime serious enough for deportation.

  5. PrometheeFeu says:


    I don’t think those lines are a big problem because they come with their own enforcement. If you are not provided with a lawyer, you cannot be convicted of a crime with with a top punishment above twenty days. Similarly, if the death penalty rules are not followed, you cannot be subjected to the death penalty.

    But imagine a world in which you can take a DNA sample without a warrant for murder cases but not manslaughter cases. You are suspected of murder, you go to court, the DNA evidence is introduced. However, the jury doesn’t convict you of murder. They merely convict you of manslaughter. Clearly, the jury saw the DNA evidence and they may have convicted you of manslaughter based upon that evidence.

    It seems unfair that the prosecutor would be able to manipulate the rules of evidence by putting charges of which you will be acquitted.

  6. Orin Kerr says:

    I suspect Scalia is right that, if confronted with the issue, the Court would say that the reasoning of King applies to all offenses. It’s just too hard to draw substantive crime lines in Fourth Amendment law. It’s true that we draw lines in Sixth Amendment law, but the Sixth Amendment right kicks in later after the government has its ducks in a row: That allows the use of distinctions based in large part on the government’s decision. We don’t have that luxury in most Fourth Amendment settings, as the issue generally arises before that stage.

    As for Jones making this point, I think it’s important to recognize that this was just an interpretation of a passing suggestion in a single sentence of a non-binding concurrence. Given that few people seem to take the concurrence’s reasoning particularly seriously — why should public perceptions of how the police investigate crime have any relevance to what is a “search”? — I think we should be cautious about relying on that suggestion in the one sentence. Further, the idea that “extraordinary offenses” means terrorism is just something that we’re guessing at; we don’t actually know what makes an offense “extraordinary.”

  7. Babak Siavoshy says:

    Orin, thank you for your comment. There’s certainly authority backing up Scalia’s point and your prediction on this issue (in Whren and Atwater, for example).

    Still, even if one or two justices are ready to hold King applies differently in searches involving non-serious offenses, that could affect decisions in future DNA cases. For instance, if Haskel v. Harris reaches the Supreme Court, all it would take is for one justice from the majority (Breyer? Kennedy? Alito?) to join the King dissenters to strike down the law. I presume the King dissenters would stick with Scalia’s line of argument from King, creating a split in the rationale for the decision.

    I don’t know enough about Haskel v. Harris to know how likely this is, but the possibility is certainly there. The good news is we’ll likely have some answers on these questions soon — perhaps as early as next term.

  8. Orin Kerr says:


    If one or two Justices from the King majority thinks that the severity of the offense makes the difference (which I tend to doubt, because it would be pretty messy to say how serious is serious enough) and the King dissenters refused to acknowledge the precedential significance of King, I would think that (at worst) you would end up with a split decision with the controlling opinion under Marks being the one saying that the severity of the offense matters. You would still have consistent rationales in the controlling opinions, I think.

    In any event, I’m not so sure we’ll know the answer soon. The Court presumably won’t take another one of these cases without a split, and I don’t know if there is enough factual variation in the state laws to generate the cases that might lead to a split.

  9. Joe says:

    I don’t know how, e.g., prosecutorial discretion being so important for three strike laws is self-enforcing in favor of the defendant. Even the lawyer example is a case where the prosecutor can play around with a basic right depending the person. Same facts, discretion allows them to try one person over another. Also, I think manslaughter is a “serious” crime. So different rules for manslaughter v. murder here would seem curious. DNA testing for a violent crime vs. a non-violent traffic offense, might be more reasonable.

  10. nidefatt says:

    The Fourth Amendment has so long been transsubstantive that realistically I doubt that King will go much beyond its own borders. If it does, then all bets are off. So much has been made of the need for individualized suspicion, even lately, that it’s hard to say what happens to a decision like Bailey. If it’s a racketeering case, guy leaving house they’re about to do a warrant on can get nabbed a few blocks down because hey, it’s racketeering. That is, after all, what Breyer would have wanted.

  11. Brett Bellmore says:

    “If you are not provided with a lawyer, you cannot be convicted of a crime with with a top punishment above twenty days.”

    How about 10 or 20 counts of a crime with a top punishment of twenty days? Sentences not to run concurrently? I believe tricks like that, (“He didn’t steal $10,000, that would be a felony. He stole $100, and we’re charging him with 100 counts of that, one for each bill.”) do get pulled, to deny people the right to trial by jury.

  12. BellinJ says:

    Line drawing is hard in this context (something I grapple with in the piece cited above -thanks!), but not drawing lines comes at a price – one of which is on display here. To allow the govt to collect DNA for serious offenses, the Court feels pressure to (as in other contexts, and as Orin and J. Scalia predict will happen here) allow DNA collection for all offenses, including traffic violations. We end up with a rule that seems “reasonable” for a small subset of offenders but “unreasonable” in its application to everyone else.

  13. Orin Kerr says:


    Perhaps, but it’s worth noting that the King rule only applies when the officers arrest the suspect and bring the suspect down to the station house for booking. While Atwater allows that for minor offenses, the time and cost of making the arrest and bringing a suspect into custody for booking will make it rare in practice (as are arrests for seatbelt violations).

  14. Arthur says:

    I’m not sure a grant of certiorari in Haskel is as unlikely as Orin suggests, particularly if the Ninth Circuit rules California’s law is unconstitutional because it covers more than “serious offenses.” Such a ruling would implicate not just the DNA collection statutes in the Ninth Circuit but also the federal statute, which permits DNA collection for a broad range of non-violent crimes. A certiorari petition from the California AG, supported by the federal SG and the AG’s of other states with broader statutes, is likely to get enough attention to get the case before the Court.

  15. Re: Orin’s question at #8 about state variation and the likelihood of another Supreme Court review of the constitutionality of arrestee DNA collection, I tried to answer those questions here:

  16. Andrew Carlon says:

    I know it’s kind of a special case, but in Safford School Dist v. Redding, the majority held that a strip search in the school was unreasonable in part because it was a search for a small amount of prescription ibuprofen–even though the school’s search of the girl’s bags was permissible. Both Redding and TLO (another school search case) refer to the “nature of the infraction” in determining the scope of the search. So the Fourth Amendment does not remain entirely transsubstantive once you pass the schoolhouse door.

  17. TheAmazingEmu says:

    I tend to think the serious crime distinction is unprincipled and would not stand. If I had to pick one Justice who would hang their hat on that difference, it would be Justice Breyer, who seemed adamant in oral arguments that this case was not about “all arrests.” Plus, he’s been able to do this kind of hair-splitting before, distinguishing Georgia v. Randolph from other third party consent cases. If they had to pick a point that makes it a serious crime, I would pray that they use the six month line for right to a jury trial just so we don’t have two separate rules using the same term (I’m lazy that way).

    The Fourth Amendment is generally transsubstantive, but the concern in cases like Whren seemed to center, at least in part, on the ability of the officer to know whether it was a non-arrestable offense or not so they chose not to get drawn into that line-drawing. At least here, it’s after arrest right before charging that they make the decision whether or not to take a DNA sample. By the way, casebooks still say that the police may arrest in public without a warrant for any felony and misdemeanors committed in their presence. Is that latter rule based on some Court ruling? If so, that’s at least a offense-specific distinction.

  18. PrometheeFeu says:


    It may be that minor offenses are unlikely to lead to arrests due to the costs of an arrest, but police officers could use such minor offenses as pretexts to get somebody’s DNA in a database. A state could even make it its policy to try to get everybody’s DNA in its database by arresting anybody whose DNA isn’t in their database yet on minor infractions.

  19. pvineman1 says:

    Doesn’t the totality-of-the-circumstances balancing that the King majority utilized to determine reasonableness change depending upon the seriousness of the offense of arrest?

    It seems to me that taking and analyzing a DNA swab from a person arrested for a misdemeanor is, from the objective perspective of society at large, a greater intrusion upon the arrestee’s expectation of privacy than doing the same thing to a felony arrestee. Or, stated another way, a misdemeanor arrestee might have an expectation of privacy, that society is willing to accept as reasonable, to be free from this intrusion. But, society might not accept as reasonable such an expectation of privacy on the part of a felony arrestee.

    I agree with TheAmazingEmu, Justice Breyer might be willing to switch sides based on a misdemeanor(non-serious)/felony(serious) line. And he has the wiggle room to do so because of the Court’s well-established society-willing-to-accept-as-reasonable doctrine.

    That still leaves the “wobbler” problem in California. “Wobblers” are offense that can be charged as either felonies or misdemeanors. For example, a prosecutor can charge a burglary of an automobile as either a felony or a misdemeanor. The police will almost invariably arrest for the felony, book, fingerprint, and, after King, DNA swab. But the DA, in many cases, will only file a misdemeanor. “Serious” under King? I would say yes, because the majority refers to a serious arrest (plus custody) as being the triggers. But the future Breyer wildcard?

    Also, in California, Penal Code section 1192.7 actually defines “serious” felonies for purpose of application of, among other things, California’s “three-strikes” law. Can an argument be made that this line-drawing by the California legislature should also apply to California’s arrestee DNA law, such that only the 1192.7 felonies are “serious” for purpose of the King rule?

    Maybe the California legislature needs to amend its arrestee DNA law to make clear that all felonies and “wobblers” are “serious” offenses under King? Not that such law would tie the Court’s hands in terms of subsequently defining “serious” offense for Fourth Amendment purpose. But we all know about Justice Kennedy’s federalism based willingness to defer to a state’s laws, especially when they involve the traditional state function of defining crimes and protecting its citizens.