« Upon second thought, split South Caroline Supreme Court (sort-of) upholds mandatory lifetime GPS monitoring for sex offender | Main | Would legalizing marijuana be a huge step toward a less racialized criminal justice system? »

June 4, 2013

"Why the Court Was Right to Allow Cheek Swabs"

The title of this post is the headline of this notable commentary by Akhil Reed Amar and Neal Katyal in today's New York Times.   Here are excerpts:

The court decided, 5 to 4, that the Constitution permits the police to swab the cheeks of those arrested of serious crimes, and then do DNA tests on the saliva samples to see if the suspects are associated with other crimes.  Justice Scalia joined three liberal justices — Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan — in dissenting.

DNA is already revolutionizing law enforcement. The ability for police to use cheek swabs of arrestees rests on a threadbare majority.  The closeness of the vote, and the unusual coalitions on either side, suggest that the matter is far from settled. Justice Samuel A. Alito Jr., who was part of the majority, rightly called the case, Maryland v. King, “perhaps the most important criminal procedure case that this Court has heard in decades.”

As prosecutors, police agencies and civil libertarians consider the ruling’s implications, Justice Scalia’s stark dissent — and the fact that President Obama’s two appointees to the court so far agreed with it — makes it worthy of scrutiny, even if he was on the losing side. His argument is deeply flawed, because he did not get his history quite right....

Justice Scalia properly notes that the Constitution’s framers loathed “general warrants,” but these colonial-era warrants had odious features that cheek swabs lack. These general warrants were issued by judges ex parte — that is, in secret, without the affected citizen present — and blocked the citizen from later taking his complaint to a civil jury and seeking damages against the oppressive official.  The Fourth Amendment’s words do indeed prohibit general warrants — warrants lacking “probable cause” — but this language regulating warrants simply does not apply where no warrants are involved....

Warrants were not always the framers’ solution; sometimes warrants themselves were the problem. And here, unlike the secret ex parte generalized warrant, the DNA in the Maryland case was collected pursuant to a law enacted by the Legislature.  In approving the law, Maryland’s lawmakers knew they would run the risk of being swept up in the DNA database themselves — and balanced that risk against the potential benefits.  That is nothing like a secret warrant that could be aimed at a single unpopular individual. To be sure, the framers disliked certain kinds of warrants, but when no warrant has been issued — as in the cheek swab situation — the framers simply required that the search or seizure must be reasonable....

Reasonable minds can differ on this.  And therein lies the real genius of the Fourth Amendment.  Contrary to Justice Scalia’s view, the framers did not answer the DNA question in 1791.  Rather, the framers posed the question for us, their posterity. The distinction between criminal evidence-gathering and all sorts of other government programs and purposes is not an all-purpose touchstone or talisman.  Rather, we must ponder how intrusive a given search policy is, how discriminatory it might be in application, how well justified and well administered it is, how democratically accountable it is, how it might bear upon human dignity, and so on.

The words of the Fourth Amendment mean exactly what they say. Warrantless searches are unconstitutional only if they are “unreasonable.” That rule, and no other, is the true “heart of the Fourth Amendment.”

Recent related post:

June 4, 2013 at 08:52 AM | Permalink


TrackBack URL for this entry:

Listed below are links to weblogs that reference "Why the Court Was Right to Allow Cheek Swabs":


"Warrants were not always the framers’ solution; sometimes warrants themselves were the problem. And here, unlike the secret ex parte generalized warrant, the DNA in the Maryland case was collected pursuant to a law enacted by the Legislature."

From my reading of the Constitution, this does seem correct.

Posted by: Adamakis | Jun 4, 2013 9:15:06 AM

If a general warrant was passed by the legislature, would James Otis have been happy? Amar's support of citizen suits as a workaround to the exclusionary rule also has been criticized -- Tom Clark, a conservative leaning prosecutor for Truman himself noted the problem with such reliance in Mapp v. Ohio.

As to the law here being applied neutrally, the criminal justice system as a whole is not applied neutrally. Certain people are more likely to be arrested and when arrested likely to be treated in different ways. So, it is good to have certain basic safeguards, as Scalia noted. And, yes, warrants aren't always necessary. Scalia made a good case for this specific practice being wrong, however.

I don't think the DNA question was answered for all time in 1791. I don't like Scalia or Amar to assume answers can be determined by appeals to then. We need to apply constitutional principles using our current knowledge. Under that, DNA testing like this is problematic, and very well can be 'intrusive,' especially given the amount of possible information available, especially as technology improves. The hope that only certain info will be taken, a limited use of DNA, which will be properly stored etc. is nice and all.

Posted by: Joe | Jun 4, 2013 10:29:45 AM

Five of the nine angels in their own minds dressed in black pajamas have thus spoken it. Ergo, it must be true.

Hah. They just demonstrate everyday why fewer and fewer people have any respect for the Justice jobs. I hate to refer to it as a profession.

I have a hard time to believe that the NYT believes it can once and for all time define "reasonable" and "unreasonable".

Posted by: albeed | Jun 4, 2013 10:56:01 AM

It's a little strange that Scalia expresses so much concern about royal inspection of the mouth when he has endorsed royal inspection of the mouth, tongue, and genitals. I'm sure there's a canon that covers this.

Posted by: Michael Drake | Jun 4, 2013 2:37:17 PM

"The words of the Fourth Amendment mean exactly what they say. Warrantless searches are unconstitutional only if they are “unreasonable.” That rule, and no other, is the true “heart of the Fourth Amendment.”

Yes, the words of the 4A mean what they say which is why selectively quoting them makes the authors look like ignorant baboons. The predict words are to "to be secure". The goal of the 4A is to make people secure. If it makes them less secure then there is nothing reasonable about the legal interpretation.

Posted by: Daniel | Jun 4, 2013 4:30:03 PM

One of the chilling effects of the decision is that the slippery slope is not even present. Indeed, there IS no slope, we are at the bottom of an unclimbable cliff.

This decision allows any reason to take DNA sample. The decision does NOT restrict DNA samples to be taken from what you, I, and normal rational people call "suspects," because "suspect" is relative to whomever makes the decision. Keep in mind there is NO LEGAL THRESHOLD for such a designation. Let's say a bank robber runs away in a white truck. So cops stop all white trucks. At this point, they are constitutionally allowed to take your DNA, and it WILL be permanent, JUST because your truck happened to fit the description of a suspected getaway vehicle. The Supreme Court Decision authorizes this.

What will be interesting is state responses to this tact, though the decision appears to overrule 10th Amendment deference.

Posted by: Eric Knight | Jun 4, 2013 5:57:31 PM

I read this article @ the Times. Am I wrong or do the authors seem to be saying - "The Fourth Amendment might limit the govt from issuing a warrant to do X, but that doesn't mean doing X *without* the warrant is unconstitutional".

Like, "hey guyz, as long as we don't ask for a warrant, we're cool!!!!!!"

Disclaimer: IANAL, but I did have a high verbal SAT score

Posted by: Liberty First (and Fourth) | Jun 4, 2013 10:07:40 PM

The opinion notes the lower standard of privacy for those in custody, Eric Knight, so we are a few steps away from "all white trucks."

Posted by: Joe | Jun 4, 2013 10:07:52 PM

how true Daniel. I'm still trying to figure out how they managed to creatively interpet "no expost" to no expost except in civil cases.

Posted by: rodsmith | Jun 4, 2013 10:40:23 PM

Professor Amar's theory -- which he has written exstensively on -- is that, at common law, the main purpose of warrant was to grant immunity to the Crown's officers from a suit for trespss and conversion (for illegally entering and taking property). Thus, in his theory, the Fourth Amendment contains two separate restrictions.

The first restriction is a restriction on what government officials can do. They can only engage in a reasonable search.

The second restriction is a restriction on when a warrant may be properly issued.

Under this theory, the significance of a warrant is that it cuts off later inquiry -- either in the criminal case or a civil case -- into the reasonableness of the search. To attack the reasonableness of a search conducted with a warrant, you must first sucessfully show that the warrant was not properly issued (or that the search went beyond that approved in the warrant). See, e.g. Franks v. Delaware and Groh v. Ramirez.

It should be noted that this reading is based on the plain language of the Constitution which places these two restrictions in separate sentences plus the common law at the time of the framing.

Posted by: tmm | Jun 5, 2013 10:01:06 AM

Thank you, tmm.

Posted by: Liberty First (and Fourth) | Jun 5, 2013 10:32:51 AM

Why not just extract genetic material from every child at birth? If taking DNA samples are "21st century fingerprinting," it would seem more fair to do DNA samples on every baby born in the US.

Where does it all end?

Posted by: Oswaldo | Jun 5, 2013 3:43:09 PM

tmm --

If you're not a law professor, you should be.

Are you?

Posted by: Bill Otis | Jun 5, 2013 5:29:47 PM

"separate sentences"

The 4A is one sentence.

"The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. "

There are separate clauses but how to divide the amendment, its history and what the wording means is obviously a major issue of debate, including among experts and scholars. Prof. Amar's stance trusts the legislatures and juries more to uphold the "reasonable" requirement, but when prosecutors like Tom Clark (Mapp v. Ohio) determines the limits to such things, there is reason for concern.

Prof. Amar has been writing about this for some time. For instance, Samuel Dash in "The Intruders" (2004) challenges his reasoning. Amar has gotten into a habit in his appearances to play like Justice Black and reading the Constitution, but in both cases, the meaning of the text and appeals to history are not as clear as they sometimes supposed.

Posted by: Joe | Jun 6, 2013 10:02:01 AM

No Bill. I tried a couple of times, but could never get through the meat market. Too many wanna-be professors in the criminal and constitutional fields, and my handful of articles only managed to get published in a minor journal.

Posted by: tmm | Jun 6, 2013 11:47:42 AM

Grammar 101 -- They are independent clauses.

Key word in summary -- Professor Amar trusts juries to uphold the law. The framers did not trust legislatures. They trusted judges even less than they trusted legislatures. They did trust juries. If you want someone to hold the line on what is reasonable against an unreasonable executive, do what the framers did, trust the juries to hold the line on reasonable, the same way we do in tort cases.

Posted by: tmm | Jun 6, 2013 6:54:07 PM

Post a comment

In the body of your email, please indicate if you are a professor, student, prosecutor, defense attorney, etc. so I can gain a sense of who is reading my blog. Thank you, DAB