That Depends on What Your Definition of ‘Identify’ Is

by Mark Wilson

“The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous.”

Justice Scalia, with trademark aplomb, correctly identified the weak link in the majority opinion in today’s Maryland v. King, which upheld taking a criminal arrestee’s DNA and placing it in a state database as a harmless administrative activity incident to arrest.

Justice Kennedy, writing for the majority, relied heavily on “identification” as the state interest that is enough to suspend Fourth Amendment protections: “the need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody.” Kennedy then shoe-horns the Maryland procedure into the theoretical framework of routine administrative functions, which he does because administrative actions—as opposed to investigative actions—are not as protected. Their function is not to gather evidence for prosecution of a crime (see, e.g., the inventory search).

But as Scalia points out in his dissent, that’s simply not what police are using DNA for. They already know who they have apprehended. What they’re doing is storing the DNA for later, investigative use. King himself was tried and convicted not because DNA positively identified him as the person who had menaced people with a gun in 2009. No, King was tried and convicted for a rape committed in 2003 by an unknown assailant. In 2003, the police put the unknown perpetrator’s DNA on ice. When King was arrested in 2009 for a different, unrelated crime, his newly-extracted DNA was run through a state database of unsolved crimes and—lo and behold!—a match came up. Case closed. Cue the David Caruso music.

Scalia points out the state’s big problem, ignored by Kennedy, in this case: the state’s justification could not have been identifying King because Maryland state law expressly forbids placing a DNA sample in the system or testing it prior to arraignment!

I can’t italicize that last line enough.

King was arraigned three days later, during which time, police had presumably identified him (Scalia observes that, at his arraignment, he was correctly identified on the docket sheet). What state interest, at that point, was served by testing his DNA and placing it in the state system? Not identification, that’s for sure. Scalia points out that four months had passed before King’s (anonymous at this point) DNA sample was entered into the state system. Maryland’s own laws prohibit the key reason why Kennedy thinks this law is constitutional. That seems like a problem. Big enough that you could drive the Stair Car through.

As a backup, we’ve got the fingerprint argument. Admittedly, fingerprinting is used the same way: fingerprints are stored for later comparison, not for determining the identity of the guy the police have just arrested. Rare indeed is the case where a suspect arrives at the station, whose identity is wholly unknown to anyone, and only a fingerprint analysis discovers who he is. More likely is the case that an unknown set of fingerprints found at the scene of a crime are compared to the state’s vast library of fingerprints—obtained from arrestees—to see if any one of them, who has been arrested for something else, has fingerprints that match those of the unknown criminal.

Scalia has two arguments for that which at least don’t fail the laugh test. First, collecting DNA is a physical intrusion that is unlike taking a fingerprint. Second, fingerprints are already so good at identifying people, if your justification for collecting DNA is identification, why would you possibly need DNA to do so? (His answer: to engage in impermissible evidence-gathering!)

Here in California, the Ninth Circuit Court of Appeal upheld a similar California provision because—guess what!—the state asserted it would be useful in identifying suspects. The majority agreed in with that argument in Haskell v. Harris. But at least they devoted some time the argument that suspects’ DNA is used to solve past crimes! Judge William Fletcher dissented in that case for reasons similar to Scalia’s in King: Fletcher viewed taking suspects’ DNA as an impermissible warrantless investigation, not an innocent administrative function used to “identify” a suspect. Curiously, reading Kennedy’s opinion in King is a lot like reading Judge Milan Smith’s opinion in Haskell.

I’d be remiss if I didn’t point out that Scalia probably only cares about criminal procedure in this case because he believes, one day, his DNA could conceivably be placed in a government database somewhere for a minor crime. Generally, Scalia isn’t all that concerned with the rights of scary criminals involved in far worse offenses. But leaving criticism of Scalia’s motives aside, he’s correct as far as Kennedy’s argument goes: the idea that Maryland is using DNA to “identify” suspects in the sense that, thanks to DNA we know who it is we’ve arrested, is laughable. The Maryland law is aimed at allowing police to get leads on cold cases by comparing newly-obtained DNA from arrestees to DNA in the unsolved case file. But this they cannot do. Well, at least until today.