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U.S. Supreme Court

Chemerinsky: Does the Fourth Amendment still fit the 21st Century?

Posted Feb 25, 2013 10:00 AM CDT
By Erwin Chemerinsky

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Erwin Chemerinsky

Updated: Once more in Maryland v. King, which was argued Monday, the U.S. Supreme Court is asked to apply the Fourth Amendment to the technology of the 21st century. The issue is whether the Fourth Amendment is violated when a state, without a warrant, collects and analyzes DNA taken from a person arrested for a serious crime solely for investigating other crimes for which there is no individualized suspicion. The case powerfully illustrates the deficiencies in traditional approaches to the Fourth Amendment and the need for the court to develop a Fourth Amendment jurisprudence based on protection of informational privacy.

Alonzo Jay King Jr. was arrested in Maryland for first- and second-degree assault. A sample of King's DNA was then taken by putting a cotton swab inside his cheek, a process called a buccal swab. This was done pursuant to the Maryland DNA Collection Act, which requires the collection of DNA from those arrested for serious crimes. The DNA was not collected to link King to the assaults for which he was arrested; King was arrested for pointing a gun at some individuals, and there was no dispute as to his identity. Instead, the DNA was collected entirely for the purpose of potentially linking King to other crimes.

King's DNA was then matched to a profile of forensic evidence from a sexual assault. Under Maryland law, the DNA match cannot be used as evidence at trial, but it does provide probable cause for arresting an individual for the other crime and for taking another DNA sample. Based on the DNA taken from him after his assault, King was charged with rape and ultimately convicted of that crime and sentenced to life in prison.

Federal law and the law in all 50 states provide that DNA will be collected from individuals convicted of felonies. The issue presented in Maryland v. King is whether DNA can be taken and analyzed from a person arrested for a crime, who has not yet been convicted, and for the sole purpose of investigating other crimes. The Maryland Court of Appeals found that this violated the Fourth Amendment and emphasized that the taking of DNA was a search done without any individualized suspicion. The court observed that "DNA samples contain a massive amount of deeply personal information." The court stressed the importance of the distinction between convicted individuals and those who only have been arrested.

The state of Maryland, along with the United States, argues to the Supreme Court that the search was "reasonable" and thus does not violate the Fourth Amendment. Taking the DNA sample is minimally intrusive and not painful; it is a cotton swab against the inside of a person's cheek. Maryland and the United States contend that such searches are on balance desirable: they can be used to solve serious crimes and to exonerate innocent individuals.

By contrast, King argues to the court that the requirements for individualized suspicion and a warrant are crucial under the Fourth Amendment. He maintains that the case is really about whether the court should develop an exception to traditional Fourth Amendment principles for new technology and contends that it should not do so. King argues that this situation is not analogous to any other situation where the court has allowed searches without individualized suspicions and warrants. He says that taking DNA is different from obtaining fingerprints from those arrested because the former involves much greater intrusion and because the underlying purpose of gathering the information is different.

Thus, the overall approaches of the two sides before the Supreme Court are quite different. The government urges the court to use a balancing test and allow the taking and analyzing of DNA because the intrusion is minimal and the benefits for law enforcement are potentially great. King, though, urges the court to follow bright-line rules: except in limited and extraordinary circumstances, searches require individualized suspicion and warrants.

Once more, then, then Supreme Court must apply a provision adopted in 1791, the Fourth Amendment, to a situation that would have been unimaginable at that time. Last year, in United States v. Jones, the court considered whether it violated the Fourth Amendment for the police to place a GPS device on a person's car and track its movements for 28 days without a valid warrant. The majority opinion, by Justice Antonin Scalia, relied on an English law precedent from 1765 to find a violation of the Fourth Amendment on the ground that placing the GPS device on the car was a trespass. It is hard to imagine that there will be an apt 18th-century English law decision about the taking and analyzing of DNA specimens from arrestees. More fundamentally, the constitutionality of a search using the technology of the 21st century should not be decided based on the experiences of those living over 200 years ago.

Justice Scalia's opinion in Jones focused on the intrusion onto the vehicle from placing a GPS device on it. Maryland and the United States urge the court to focus on the minimal intrusion from running a cotton swab inside a person's cheek. But looking at the cases in this way ignores what really is at stake in these and so many other cases involving technology: informational privacy. When should individuals be able to keep information from the government except if there is individualized suspicion and a warrant?

In a concurring opinion in Jones, Justice Sonia Sotomayor urged the court to focus on informational privacy. She identified many important privacy issues raised by government surveillance, and said, "I would also consider the appropriateness of entrusting to the Executive, in the absence of any oversight from a coordinate branch, a tool so amenable to misuse, especially in light of the Fourth Amendment's goal to curb arbitrary exercises of police power to and prevent "a too permeating police surveillance."

A person's DNA already can be used to learn countless things about an individual and this will increase enormously in the future. What should be the ability of a person to keep his or her DNA out of a database and from the government until there is individualized suspicion and a warrant? That is the underlying issue before the court in Maryland v. King.

Erwin Chemerinsky, Dean and Distinguished Professor of Law at the University of California, Irvine School of Law, is one of the nation’s top experts in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He is the author of seven books, the latest being The Conservative Assault on the Constitution (Simon & Schuster, 2010). His casebook, Constitutional Law, is one of the most widely read law textbooks in the country. Chemerinsky has also written nearly 200 law review articles in journals such as the Harvard Law Review, Michigan Law Review, Northwestern Law Review, University of Pennsylvania Law Review, Stanford Law Review and Yale Law Journal. He frequently argues appellate cases, including matters before the U.S. Supreme Court and the U.S. Court of Appeal, and regularly serves as a commentator on legal issues for national and local media. He holds a J.D. from Harvard Law School and a B.S. from Northwestern University.

Updated Feb. 28 to include link to coverage of arguments in Maryland v. King.

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