The Supreme Court heard oral arguments this week in Maryland v. King, a case that challenges the constitutionality of Maryland's DNA Collection Act, which authorized law enforcement to take DNA samples from those arrested for a “crime of violence, an attempted crime of violence, a burglary, or an attempted burglary” (see here). The DNA 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). 4th Amendment challenges to DNA profiling generally center on determining the “reasonable expectation of privacy” that an individual has in her own DNA; however, that has been a status-dependent calculation in criminal procedure (those convicted of crimes have a diminished expectation; those arrested of crimes also have a lowered expectation, but this case will determine whether their privacy interest is still strong enough to counter the government’s entitlement to their DNA). The government must demonstrate the state interests advanced by the DNA profile collection; in the case of arrestees, states argue that the use of an arrestee’s DNA profile aids is solving cold cases. To date, federal courts have split on this issue. 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. Last 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 a DNA profile in CODIS no longer a neutral identifier, and thus, is the profile even more revealing than was believed? If so, that strengthen’s an individual’s privacy interest in her DNA profile (and by implication, in the collection and/or retention of the DNA sample).
This is the first case on the use of DNA databases in criminal law that the Supreme Court has taken; lower federal appellate courts have generally upheld the use of mandatory DNA collection and profiling from those convicted of crimes (state laws can vary, however, in the types of offenses that warrant such inclusion). The justices appeared divided, and the recurring analogy of fingerprint analysis was referenced to determine the level of instrusiveness that DNA profiling presents. An amicus brief filed by my colleague David Kaye and forensic scientists concludes that current CODIS DNA profiling does not capture medical, physical or behavioral information. Several justices appeared unconvinced that Maryland’s interest is solving cold cases was sufficient to justify the DNA profiling of arrestees, and were concerned with a “slippery slope” toward more casual usage, as evidenced by a question from Chief Justice Roberts: “Under your theory, there’s no reason you couldn’t undertake this procedure with respect to anybody pulled over for a traffic violation?”
Last year, in U.S. v. Jones, the Court ruled that the warrantless use of GPS tracking on a motor vehicle by law enforcement violated the 4th Amendment. Both Jones (GPS) and King (DNA) will provide further elaboration for how 4th Amendment protections coexist with rapidly changing technological capabilities that are available to law enforcement. However, even adjudicated technologies will continue to evolve. That was noted in the oral arguments this week, where reference was made to advances in DNA analysis that will speed up testing, such that an immediate result could be used for bail determinations. That technical development could shift the legal analysis, perhaps bolstering the state’s case. However, that is not the situation now. Ironically, both the plaintiff’s and the state’s arguments occur against rapidly advancing DNA testing methodologies and DNA genomic analyses, so that the state may bolster its case with later-developed tests that expand the uses of arrestee DNA profiles; at the same time, new genomic research potentially bolsters a plaintiff’s argument that a DNA profile is not a neutral identifier, but a data-laden archive of personal information, thus increasing the privacy interest of the individual and perhaps the unreasonableness of the search. Against that backdrop, the Court must focus on a snapshot of what is possible now and what is known now and issue a 4th Amendment analysis that will be necessarily time-bound, but perhaps open to updating as changing technologies rewrite factual assumptions.