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July 31, 2012

Chief Justice Roberts says DNA collection from arrestees will soon get SCOTUS review (and perhaps approval)

101020113910_dna-apAs reported in this New York Times article, Chief Justice John Roberts yesterday officially granted a stay of a Maryland decision blocking state officials from collecting DNA samples from people charged with certain felonies. The short opinion explaining the ruling by Chief Justice Roberts includes these notable passages:

Maryland’s DNA Collection Act, Md. Pub. Saf. Code Ann. §2–501 et seq. (Lexis 2011), authorizes law enforcement officials to collect DNA samples from individuals charged with but not yet convicted of certain crimes, mainly violent crimes and first-degree burglary.  In 2009, police arrested Alonzo Jay King, Jr., for first-degree assault.  When personnel at the booking facility collected his DNA, they found it matched DNA evidence from a rape committed in 2003. Relying on the match, the State charged and successfully convicted King of, among other things, first-degree rape.  A divided Maryland Court of Appeals overturned King’s conviction, holding the collection of his DNA violated the Fourth Amendment because his expectation of privacy outweighed the State’s interests.  425 Md. 550, 42 A.3d 549 (2012).  Maryland now applies for a stay of that judgment pending this Court’s disposition of its petition for a writ of certiorari....

Maryland’s decision conflicts with decisions of the U. S. Courts of Appeals for the Third and Ninth Circuits as well as the Virginia Supreme Court, which have upheld statutes similar to Maryland’s DNA Collection Act....

The split implicates an important feature of day-to-day law enforcement practice in approximately half the States and the Federal Government.... Indeed, the decision below has direct effects beyond Maryland: Because the DNA samples Maryland collects may otherwise be eligible for the FBI’s national DNA database, the decision renders the database less effective for other States and the Federal Government.  These factors make it reasonably probable that the Court will grant certiorari to resolve the split on the question presented.  In addition, given the considered analysis of courts on the other side of the split, there is a fair prospect that this Court will reverse the decision below.

And, in somewhat related news, Ted Gest in this post at The Crime Report provides a notable report on another official's views on DNA collection practices, which gets started this way:

New Mexico Gov. Susana Martinez, who served as a prosecutor for 25 years, gave a spirited pitch to criminal justice officials from around the U.S. yesterday to push for collecting DNA samples from everyone arrested for a felony.

New Mexico has been a leader in state passage of "Katie's Laws," named for Katie Sepich, who was murdered in New Mexico in 2003. Sepich's assailant, Gabriel Avila, was charged with the crime three years later --- although he had been arrested in the meantime for other offenses, and a Sepich DNA sample was available.

Martinez, who prosecuted the case, said he could have been charged with the crime much sooner had the law been in effect. She spoke to the National Criminal Justice Association's annual national forum, which is being held near Albuquerque, N.M.

New Mexico passed a law in 2006 requiring those arrested for violent felonies to yield DNA samples. The law was expanded last year to collect samples from all accused felons.

July 31, 2012 at 02:56 PM | Permalink


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How outrageous is this! And don’t let Roberts’ one-sided opinion fool you. The MD S.Ct. is not the first or only court to declare such a DNA collection statute unconstitutional (although you wouldn’t know that by reading Robers’ order). If you want a full accounting of the courts who have reached this issue, see Part III.C. of the MD opinion, 425 Md. 550.

Posted by: anon | Jul 31, 2012 4:32:45 PM

now if someone could just split the skull of this treasonous twit!....the chief justice that is!

Posted by: rodsmith | Jul 31, 2012 10:22:15 PM

The Roberts opinion has a very important aspect: it admits that the state interest behind the DNA collection is routine crime control. In previous DNA litigation -- all but Maryland having upheld such laws, the government always advanced a ruse-- that the purpose of the DNA collection is to "identify" the arrestees, akin to searching their names or taking finger prints -- not to solve random crimes.

Problem is that the "special needs" doctrine has not been repudiated, and this kind of law does not fit the existing doctrine. The Fourth Amendment generally prohibits searches without individualized suspicion when such searches are primarly for purpose of ordinary law enforcement and crime solving. See Indianapolis v. Edmond.

Every decision upholding DNA collection, nonetheless agreed with the premise that such testing is a "search" per Schmerber; but it found the search reasonable largely by the ruse that it advances an interest other than ordinary crime solving. But Roberts's opinoin seems to cut through that smoke and mirrors: the state interest is ordinary crime solving. Now, to uphold the statute, it seems to me that the Supreme court will either have to (1) abolish or severally scale back the "special needs" doctrine, or (2) hold that "DNA is special" and find a way to not consider it a search at all. If it does so, I think the Supreme Court's opinion would not resemble that of any circuit that has considered and upheld such DNA testing.

Posted by: SashokJD | Aug 1, 2012 2:36:59 AM

As to the "ruse" cited, since the policy applies to those "charged with but not yet convicted of certain crimes," it won't have a "general crime control" given the limited nature of the policy. Even as to "crime control," it will only be limited to those "charged," which entails some reasonableness review.

Posted by: Joe | Aug 1, 2012 11:15:29 AM

Joe: I am not sure I follow. Most states and the federal government already have mandatory DNA collection upon release from prison, and/or upon conviction. Those have been upheld, though with many dissents. The issue in Maryland, and one that's been perculating the federal circuits, is taking the DNA well before any conviction. The CA statute and the federal DNA statute, for example, get collection after arrest.

The "general crime control" refers to building up the DNA database so that it can be used to solve old and future cold cases. Roberts pretty candidly acknowledges that that's the purpose.

Posted by: SashokJD | Aug 1, 2012 11:35:37 AM

Eventually the government will have everyone's dna (perhaps under the ruse of identifying people during a tragedy like 9/11) and will implant a (micro?) GPS device at birth (at first under the ruse of finding missing children).

Let's cut the ruse and cut to chase. There is no stopping this. Indeed, if public safety is the #1 purpose of government, then government is irresponsible until this is done.

Posted by: George | Aug 1, 2012 11:38:14 AM

SashokJD, my point is that in this case, only a narrow class of people have their DNA collected, so even if their DNA is used for "general crime control," the specific policy has a more limited reach -- only those charged have DNA collected & for them personally, there are other reasons to collect it. One can't be charged w/o reasonableness of the person being seized is provided.

It is not akin to a drug checkpoint for every driver. The question then is once the info is taken for specific purposes, how broadly can it be used. The opinion, of one justice and of limited value, notes "Collecting DNA from individuals arrested for violent felonies provides a valuable tool for investigating unsolved crimes and thereby helping to remove violent offenders from the general population."

I don't see him saying that the DNA is taken merely for that purpose. Keeping track of the specific persons in question, not "general crime control" seems to be a purpose. And, since the specific persons here were charged, a safeguard is in place. I'm open to concern for some limits, especially removal of the DNA information if the person is found not guilty.

Posted by: Joe | Aug 1, 2012 1:29:17 PM

Joe: I grant that the "primary purpose" type inquiry is somewhat amorphous, and it's often not easy to draw lines among professed state interests. Still, I don't think it's a hard case because any state interest advanced has been, at least from the record in the other DNA litigation I am more familiar with, pretty clearly pretextual. For example, it takes many months to process the DNA and make it useful; and when it is cued up and ready for action, it is never actually used to verify identity of the arrestee (which is an interest often advanced by the state).

Same with the hypothetical interest of "keeping track of specific persons in question" -- it sounds like a plausible "special need", but again, there's no record that it is used for that, and it dubious to think that it would be effective for that purpose. So let's say the state gets someone's DNA, how does it actually work to keep track of people? Not as good as ankle monitor. There would have to be other mystery DNA during the tracking period, which is matched to the arrestee's sample. So that interest is advanced only incidently, I think, as a consequence of a cold hit. Then there's also legislative history -- I know its generally disfavored in law, but that's because legal tests generally don't inquire into "primary purpose"; the special needs analysis does -- and I bet you the history will reveal that such laws are enacted to help solve cold hits, and nothing more.

In Ferguson v. Charleston and Indianapolis v. Edmond, the states proffered some non-crime solving interests--and I think fairly credibly. But the court concluded, rightly, that the main purpose is crime solving. I think with DNA, the primary reason is to solve crimes by comparing the samples with mystery DNA at crime scenes. The other interests advanced by the state--"to monitor the pre-trial releasee" or to have an extra way to identify them to make sure they are who they say they are, etc., are much more of a stretch than the interests purported in Ferguson or Edmond.

I don't think this dooms the DNA act, but the court will have to find a way to scale back the special needs doctrine, or create some unique exception for DNA, or for arrestees, or some other kind of acrobatics.

Posted by: SashokJD | Aug 1, 2012 3:44:02 PM

A government is already considering an auto GPS monitor for tax purposes.

Officials approve study of SF Bay area mileage tax
Updated 10:21 p.m., Thursday, July 19, 2012

OAKLAND, Calif. (AP) — San Francisco Bay area officials will study a proposal to charge motorists a tax on every mile they drive in the nine-county region as a way to raise money for roads and public transit while reducing traffic and pollution from car emissions.

Members of the Metropolitan Transportation Commission and the Association of Bay Area Governments approved going forward with further study of a possible Vehicle Miles Traveled tax on Thursday night, as part of a broader environmental review of several transportation options.

Under a proposal still in its early stages, drivers could be required to install GPS-like odometers or other devices in their vehicles and pay from less than a penny to as much as a dime for every mile driven. The idea could take a decade or more to be launched.

There is more at the link.

Posted by: George | Aug 1, 2012 4:54:28 PM

i'd sooner arrange a voluntary group collection of the estimated funds and use it to kill off the nazi retards who keep dreaming them up!

Posted by: rodsmith | Aug 1, 2012 11:41:29 PM

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