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Monday, November 25, 2013

Why Maryland v. King May Indeed be Limited to Serious Offenses

On November 22 at the UCLA School of Law, the Program on Understanding Law, Science & Evidence (PULSE) and the UCLA Institute for Society and Genetics held a symposium entitled, The Supreme Genome?: Maryland v. King, Myriad Genetics and the meanings of DNA.

I had the opportunity to attend, and over the course of the event, I had several reactions to some of the points made.  The first thing I would like to discuss is a follow up to one of my earlier posts where I expressed doubt that the ruling was limited to "serious offenses."

To briefly recap the decision, Maryland v. King held that a buccal swab to collect a DNA sample of a felony arrestee did not violate the arrestee's Fourth Amendment rights.  The Court held that the minimal invasiveness of the search, combined with the state's interest in identifying the formally-booked arrestee balanced out to a conclusion that the search was not unreasonable.  The Court limited its holding to "serious offenses" -- presumably excluding DNA tests upon an arrest and booking for a misdemeanor from the scope of the holding.  It is still an open question whether "serious offenses" includes nonviolent felonies.

But portions of the decision indicate that the holding was not entirely based on the government's interest in identification and that the ruling's reasoning could apply to misdemeanor offenses as well as more serious.  Maryland v. King's broad language regarding identity as including criminal history, and its anecdotes relating to crimes that DNA evidence could solve (p. 12) indicate that the Majority was considering the government's interest in solving previous crimes, and that this interest could outweigh privacy concerns in misdemeanor cases.

For instance, the Majority cited the example of Timothy McVeigh as somebody who could have been caught using DNA identification.  McVeigh was apparently stopped for a traffic violation hours after the Oklahoma City bombing.  But if this example is to bolster the Court's point, the Court would need to admit that the government can take DNA samples when somebody is arrested for a non-serious offense (and perhaps when that arrestee is not formally booked).

The Majority's limitation of its holding to serious offenses was harshly criticized as ad hoc by Scalia's dissent.  If the justification for collecting DNA samples is to actually find out the suspect's prior criminal behavior, then it does not matter whether the suspect is under arrest for a serious crime or a misdemeanor when his or her DNA profile is collected.  In my initial reaction to the case, I agreed with Scalia's point.

But there is a way that this justification may be justified: we just need to look past much of the opinion's language and take the court at its word when it says that the justification for the DNA profile collection is to simply identify the arrested suspect and make sure he is who he says he is.

If simple identification of the arrestee is the government interest that outweighs the intrusion of the search, then that interest is presumably greater if the crime the government has probable cause to believe the arrestee committed is a "serious" offense.  Identifying defendants is important in all cases, but it is probably more important for the government to identify defendants if they are suspected of more serious crimes.

So Maryland v. King may indeed be coherently limited to serious offenses.  All that you need to do to get to this reading is to exclude the portions of the opinion that relate to "identity" as including prior offenses and the anecdotes and examples the Majority uses to justify its decision.  The next step to determining whether this coherent reading is, in fact, the correct reading, is to determine whether all of that language is part of the holding or dicta.

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