Here are some thoughts on Maryland v. King, today’s new case allowing DNA testing on arrest under the Fourth Amendment:
1) It’s hugely important as a practical matter, but it’s not very interesting from a theoretical or academic standpoint. The difference between the two opinions largely hinges on how you characterize the purpose of the search. For the majority, per Justice Kennedy, taking and analyzing DNA samples upon arrest is okay because taking DNA is generally about identifying the person under arrest, which is a very important government interest and renders the search constitutional. For the dissent, per Justice Scalia, taking DNA isn’t okay in this case because it really had nothing to do with identifying the person and was just about collecting evidence of other crimes.
There are some interesting issues lurking in there about how you determine the purpose of a search to know whether to trigger general reasonableness balancing or the default warrant standard. But that’s an issue that tends to lurk in cases at the border of the special needs exception, Cf. Al-Kidd, and I don’t think the opinions in King shed much light on that. So while King is very important from a practical standpoint, there isn’t a whole lot of academically-interesting stuff happening in the King opinions.
2) The majority leaves open several potentially important limitations on its opinion. First, the Court seems to limit its holding to testing for people arrested of “serious offenses,” testing at the station house when the person was brought in to be detained, and testing with the statutory safeguards of the Maryland Act. We don’t know if the Court will stick to those limitations — Justice Scalia certainly didn’t think it would — but they’re worth noting.
Perhaps more importantly, the Court limits its holding to analysis of DNA designed to generate identification information. From the majority opinion:
It is undisputed that law enforcement officers analyze DNA for the sole purpose of generating a unique identifying number against which future samples may be matched. This parallels a similar safeguard based on actual practice in the school drug-testing context, where the Court deemed it “significant that the tests at issue here look only for drugs, and not for whether the student is, for example, epileptic, pregnant, or diabetic.” Vernonia School Dist. 47J, 515 U. S., at 658. If in the future police analyze samples to determine, for instance, an arrestee’s predisposition for a particular disease or other hereditary factors not relevant to identity, that case would present additional privacy concerns not present here.
3) I though Justice Scalia’s dissent was a bit overheated given the mixed precedents relevant to this case. And I tend to think he overstated his case at times. For example, Scalia writes the following:
The objects of a search incident to arrest must be either (1) weapons or evidence that might easily be destroyed, or (2) evidence relevant to the crime of arrest. See Arizona v. Gant, 556 U. S. 332, 343–344 (2009); Thornton v. United States, 541 U. S. 615, 632 (2004) (SCALIA, J., concurring in judgment). Neither is the object of the search at issue here. . . .
No matter the degree of invasiveness, suspicionless searches are never allowed if their principal end is ordinary crime-solving. A search incident to arrest either serves other ends (such as officer safety, in a search for weapons) or is not suspicionless (as when there is reason to believe the arrestee possesses evidence relevant to the crime of arrest).
Although the Court has applied this standard in the context of searching a car incident to arrest, see Gant, it is worth noting that the Court has rejected this case-by-case approach and instead adopted a bright-line rule for searches of a person incident to arrest:
The authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would, in fact, be found upon the person of the suspect. A custodial arrest of a suspect based on probable cause is a reasonable intrusion under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires no additional justification. It is the fact of the lawful arrest which establishes the authority to search, and we hold that, in the case of a lawful custodial arrest, a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a “reasonable” search under that Amendment.
United States v. Robinson, 414 U.S. 218 (1973). Scalia’s dissent may signal his willingness to revisit Robinson, or at least to read it narrowly. Remember that when the issue of searching a cell phone incident to arrest gets up to the Court sometime soon. But in light of Robinson, it seems wrong, based on current law, to say that a suspicionless search is never allowed incident to arrest for purposes of ordinary crime-solving.