November 12, 2012

Supreme Court to Review 4th Amendment Challenge to Inclusion of Arrestees in DNA Databases

The Supreme Court has agreed to hear the challenge to Maryland's DNA database expansion in a case that will test the constitutionality of DNA profiling practices in law enforcement which increasingly include those arrested for various crimes (federal and in 28 states). The case is King v. Maryland, handed down last September. As reported earlier herewhen King was handed down, the Supreme Court (at least Justice Roberts) appeared to signal its disagreement with the Maryland court, to the point of granting the state’s request for a stay. The Maryland DNA Collection Act mandates DNA collection from those arrested for a “crime of violence, an attempted crime of violence, a burglary, or an attempted burglary.” The collection and profiling of those individuals leads to their inclusion in the state and federal (CODIS) DNA databases (current CODIS statistics show about 1.2 million arrestee profiles in the national database, and about 10 million profiles of convicted offenders). The Court will contend with the continuing project of defining the “reasonable expectation of privacy,” derived from Katz v. U.S. (1967), to weigh the constitutional challenge against asserted government interests in prevention and prosecution of crimes. Privacy interests are further attenuated (reduced) for those in the criminal justice system; to date, two federal appellate courts have considered the DNA profiling of arrestees and upheld the practice against 4th Amendment challenges. In 2011, in U.S. v. Mitchell, the 3rd Circuit upheld the federal DNA Fingerprint Act, enacted in 2006, which authorizes DNA collections from those arrested for federal crimes. Just this year, in Haskell v. Harris, the 9th Circuit upheld the California state law that authorized DNA collection from arrestees. However, Haskell has now been reheard by the 9th Circuit en banc (see here), and this case has taken a new turn with new research from the ENCODE consortium suggesting that DNA profiling may be more biologically informative than previously thought (is the DNA profile in CODIS no longer a neutral identifier, and thus less private, altering the Katz analysis?). Scientific consensus may be getting murkier, leading to more, not less, legal ambiguity.

Somewhat surprisingly, this will be the first case on DNA databases that the Supreme Court has taken, having denied certiorari for the earlier phase of 4th Amendment challenges to DNA collection, which focused on the claims of those actually convicted of crimes (e.g., U.S. v. Kincade, 9th Cir. 2004). The federal courts are generally in consensus in rejecting 4th Amendment challenges from those whose DNA profile is included in a government database because of an actual conviction. This case becomes the Court's second look in a year at the 4th Amendment in the context of developing technologies. In U.S. v. Jones, issued in January, the Court ruled that the warrantless use of GPS tracking on a motor vehicle violated the 4th Amendment, employing the anti-trespass norms embedded in the 4th Amendment to find an unreasonable government intrusion into a protected personal zone. Both Jones and King (when decided) will now provide further elaboration of how 4th Amendment protections coexist with rapidly changing technological capabilities; these are the type of cases that have been long-awaited since the 2001 U.S. v. Kyllo, where the Court ruled that warrantless thermal imaging of a home violated the 4th Amendment.

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