On Friday, Retired Supreme Court Justice John Paul Stevens spoke at the American Constitution Society National Convention. His speech is here. In the final part of the speech, Justice Stevens says that he probably would have voted in the majority of the Maryland v. King opinion -- where the court decided that the taking of DNA swabs from people arrested for serious offenses is a permissible search. (I discussed this opinion further here).
Justice Stevens emphasizes that even if Justice Scalia's dissent is correct and the search was really done for investigatory rather than identification purposes, this would not be the end of the inquiry. Justice Stevens accurately emphasizes the limited information that DNA swabs reveal, since Maryland's statutory safeguards prevented broader use of the DNA to determine other information such as physical characteristics of the arrestee. Additionally, Justice Stevens notes the limitation on the scope of DNA collection, since only the DNA of arrestees who are suspected of crimes would be collected, and he notes the public interests that would be served by a DNA database, including guarantees of more accurate identification and the deterrence value of the database.
It's important that Justice Stevens emphasized this point, because it seemed that Scalia had a very good argument that the purpose of the statute was investigatory rather than for purposes of identification. I think that Justice Stevens's first point about the limited information that DNA swabs reveal is the most important of his various arguments in favor of the outcome. The King decision's basis in the identification purpose of the statute leaves open questions about whether the DNA search is so intrusive that it is unreasonable. A similar point was left open by the Court's opinion in United States v. Jones, 132 S. Ct. 945 (2012) where the Court held that installing a GPS monitor on a suspect's car was a "search" under the meaning of the Fourth Amendment, but noted that the government had forfeited any arguments about whether that search was "reasonable."
Both King and Jones leave open the question of whether the searches involved in each case is reasonable. King bypasses the issue by relying on the alternate purpose of identification rather than investigation -- an alternate purpose that skews any balancing in the favor of the government. These issues may come up again in the future case that the Court will eventually need to hear when a defendant arrested for a non-serious offense has his or her DNA collected by the arresting agency. More questions like this will also arise when there are states with fewer statutory safeguards than the Maryland statute provided. In these different scenarios, the Court may find that the purpose of the statute is indeed investigatory, or the Court may find that this purpose is not enough to overcome other questions of search reasonableness. When the debate arrives here, I think that there are strong and interesting arguments on both sides (though I am inclined to side with Justice Stevens opinion on the issue). Justice Stevens's speech, whether you agree with his points or not, illustrates the importance of continuing questions in cases decided in areas of complex doctrine, where clarification of one area of the law does nothing to address other areas.
Finally, a detour through Jones: the lesson of Justice Stevens's emphasis of remaining questions applies most strongly to cases like Jones. Searches in Jones, however, are clearly investigatory, and only future cases (like the one I will be arguing on Thursday) will decide which of these searches are reasonable or unreasonable. In Jones, for instance, the government sat back and collected a great deal of information about the suspect's car over 28 days, which the government then sought to introduce to show driving patterns that indicated drug trafficking. Other cases might not be so clear -- the GPS may be installed for only a few days, permanent data might not be collected, the GPS information itself might not be entered into court but rather may form the basis of a seizure or a new search, and police may take simultaneous alternate measures to track the vehicle while a device is installed. All of these alternate scenarios would seem to decrease the amount of information collected and the level of intrusion in the search. Combine these possibilities with the fact that the search takes place on a vehicle, and the government does not typically need to get a warrant to search a vehicle, and that the searches are monitoring public movements of that vehicle, and the reasonableness determination becomes quite unclear indeed.
Both King and Jones have provided a bit of clarity in their areas of Fourth Amendment doctrine. But both of these decisions leave open remaining questions in the remaining legal analysis. These remaining questions become all the more important -- since they become the linchpins upon which future cases will be decided.
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