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June 3, 2013

Via somewhat unusual 5-4 split, SCOTUS finds reasonable DNA acquisition from arrestee in Maryland v. King

The only big SCOTUS ruling in the criminal justice arena today concerning the Fourth Amendment.  Here are the early highlights via SCOTUSblog:

Maryland v. King is next.  Justice Kennedy for the Court.  The MD Court of Appeals is reversed.  The vote is 5-4, an unusual lineup: Scalia dissents, joined by Ginsburg, Sotomayor, and Kagan....

When officers make an arrest supported by probable cause for a serious offense and bring the suspect into the station, taking a cheek swab (and analyzing) is, like fingerprinting and photographing, a reasonable police procedure under the Fourth Amendment.

The full opinion in King is available at this link.  I will need to read the opinion before knowing if there is much for sentencing fans here.  But the vote line-up alone provide another reminder that Justice Scalia is often much more interested in limiting state criminal justice powers based on the procedural provisions of the Bill of Rights than are Justices Breyer or Kennedy.

The only other notable criminal justice action from SCOTUS today is a per curiam summary reversal of a habeas grant by the Ninth Circuit in Nevada v. Jackson, No. 12–694 (S. Ct. June 3, 2013) (available here).  Not sure there is much of enduring interest in this little opinion, save for the notable reality of the the Justices being willing/eager to correct the Ninth Circuit in an AEDPA setting this time involving a non-capital defendant.

June 3, 2013 at 10:25 AM | Permalink


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One interesting thing about the King case will be how much of the limiting criteria cited by the majority will affect how DNA testing will be crafted & how much of it is constitutional based as compared to a statement of the limited nature of this particular program.

Posted by: Joe | Jun 3, 2013 11:24:30 AM

At the end of the opinion, it talks about probable cause to arrest, and it also talks about probable cause to arrest and hold for a serious offense. Prof. Berman, do you think "serious offense" will take on the same meaning as it has for a right to a trial by jury (maximum at least 6 months, implicitly, fine not to exceed $500), from Baldwin v. New York, 399 U.S. 66 (1970)? Or will it apply to everything? Is it a small enough constitutional intrusion to be justifiable for a felony with a long maximum, but too big an intrusion for a 3-month misdemeanor? How does one measure using a Fourth Amendment ruler? Or does the "reasonable/unreasonable" line just move like the ball on a roulette wheel, landing sometimes odd, sometimes even, sometimes black, and sometimes red, with past performance being no measure of future results?

Posted by: Greg Jones | Jun 3, 2013 12:02:45 PM

The dissent has the better argument -- by far -- under the facts of this case and MD law. Kudos to them for calling out that the Emperor has no clothes. Unfortunately, a majority of Justices are happy to blindly lavish MD for their finely woven (non-existent) cloth.

To claim that this DNA program is justifiable for the purpose of identification would be laughable, were it not so sad that a majority of Supreme Court justices embraced such a farce. If you don't believe me, read Scalia's opinion.

Posted by: DEJ | Jun 3, 2013 1:01:58 PM

The sad part about today's holding comes from the observation made by Justice Scalia. As he explains: "Americans simply 'became accustomed to having our fingerprints on file in some government database.'" (Dissent at 15).

Any guesses on how long will it take for Americans to become accustomed to having our DNA on file with the government? (See also id. at 17-18 (detailing the "vast (and scary)" holding).

Posted by: DEJ | Jun 3, 2013 1:14:48 PM

Here is the fundamental truth, "what gets measured gets managed." Period. End of story. And the root of measurement is identification. So if the goal is to control to populace then you cannot manage them unless you can measure them and you cannot measure them unless you identify them. I do not see DNA testing as the logical extension of fingerprinting; I see it as the logical extension of the Census.

As I have been telling people for years: get cremated. Because bringing back dinosaurs and mammoths from their DNA is only the tip of the iceberg. Sooner or later they are going to start bringing back people too. And now that the government can collect your DNA when it wants however it wants (as if trifle of the criminal law presents any serious impediment) you'll probably be brought back in a vat farm to mine your organs.

Posted by: Daniel | Jun 3, 2013 2:56:52 PM

The usual unanimous reversal of a 9th Circuit decision with Reinhardt as the author once again. His opinions must have bulls-eyes on them when they get to SCOTUS.

Posted by: DaveP | Jun 3, 2013 4:37:21 PM

Dave P.

The sad thing is that for once I think Reinhardt actually had the better of the argument.

Posted by: Soronel Haetir | Jun 3, 2013 5:17:19 PM

man these nazi wannabee's have long long long long outlived thier right to live!

Can we say Police State!

Posted by: rodsmith | Jun 3, 2013 7:29:52 PM

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