I wanted to say a bit more about this decision, because of it’s broad implications, and because I think Scalia has actually written one of his finest dissents in this case. He appears to truly “get it” this time, which is not often the case when Scalia deals with criminal justice.
Scalia’s criminal justice jurisprudence leaves much to be desired. His opinion in Whren v. United States was perhaps one of the most destructive opinions ever written in terms of preserving personal liberty between citizens and law enforcement (though to be fair, the rest of the court agreed with him at the time). Scalia also infamously believes there is no such thing as a proportionality principle in the Eighth Amendment. This means that Scalia does not think it is cruel and unusual to sentence someone to 100 years in prison for littering, or writing a bad check, or failing to get your car inspected. Scalia believes the Eighth Amendment’s prohibition on cruel and unusual punishments is categorical rather than cumulative, i.e. it prohibits certain types of punishments, but does not prohibit excessive punishments that are otherwise appropriate or authorized by law.
One of the few exceptions to Scalia’s criminal justice jurisprudence would be his ardent adherence to a strict interpretation of the Confrontation Clause, where Scalia draws a bright line between testimonial and non-testimonial statements. Otherwise, there’s not a lot there for defense attorneys to love.
But in Maryland v. King, Scalia’s ordinary adherence to historical originalism gives way to pragmatism and caution. This is interesting, because Scalia is on record that he hates writing Fourth Amendment opinions, making his dissent in Maryland v. King all the more unusual, as it is both thorough and incisive in its dissection of the majority’s argument.
The majority’s argument in King was based almost entirely on one principle: that the suspicionless seizure of the Defendant’s DNA was justified as an administrative identification procedure at the police station, no different than fingerprinting. The majority conceded that if the purpose of taking the DNA of arrestees was to search for evidence of a crime, then extracting DNA from arrestees would require a quantum of suspicion before DNA could be taken. But the majority argued that this procedure was justified only by the need to identify arrested individuals, rather than search for evidence of a crime.
Scalia’s dissent literally blows this argument to pieces. He points out, for instance, that Maryland’s implementing legislation carries five express purposes for the law. Identification of arrestees is not among them. Solving crimes, however, is. Furthermore, when the King case was taken up for review, several prominent officials in Maryland essentially gave away the game in their public comments. Even Justice Roberts’ chambers got in on the action:
The Governor of Maryland, in commenting on our decision to hear this case, said that he was glad, because “[a]llowing law enforcement to collect DNA samples … is absolutely critical to our efforts to continue driving down crime,” and “bolsters our efforts to resolve open investigations and bring them to a resolution.” Marbella, Supreme Court Will Review Md. DNA Law, Baltimore Sun, Nov. 10, 2012, pp. 1, 14. The attorney general of Maryland remarked that he “look[ed] forward to the opportunity to defend this important crime-fighting tool,” and praised the DNA database for helping to “bring to justice violent perpetrators.” Ibid. Even this Court’s order staying the decision below states that the statute “provides a valuable tool for investigating unsolved crimes and thereby helping to remove violent offenders from the general population”—with, unsurprisingly, no mention of identity. 567 U. S. ___, ___ (2012) (ROBERTS, C. J., in chambers) (slip op.,
Scalia then shuts the door on the “identification theory” neatly:
So, to review: DNA testing does not even begin until after arraignment and bail decisions are already made. The samples sit in storage for months, and take weeks to test. When they are tested, they are checked against the Unsolved Crimes Collection—rather than the Convict and Arrestee Collection, which could be used to identify them. The Act forbids the Court’s purpose (identification), but prescribes as its purpose what our suspicionless-search cases forbid (“official investigation into a crime”). Against all of that, it is safe to say that if the Court’s identification theory is not wrong, there is no such thing as error.
Scalia’s critique is devastating. But here is where Scalia departs from his analysis of the statute and appears to “get it” from a public policy standpoint. Criticizing the majority’s “serious crime” threshold, Scalia notes that the “serious crime” limitation has no basis in logic, and as a result, will provide no protection in future cases:
The Court disguises the vast (and scary) scope of its holding by promising a limitation it cannot deliver. The Court repeatedly says that DNA testing, and entry into a national DNA registry, will not befall thee and me, dear reader, but only those arrested for “serious offense[s].” Ante, at 28; see also ante, at 1, 9, 14, 17, 22, 23, 24 (repeatedly limiting the analysis to “serious offenses”). I cannot imagine what principle could possibly justify this limitation, and the Court does not attempt to suggest any. If one believes that DNA will “identify” someone arrested for assault, he must believe that it will “identify” someone arrested for a traffic offense. This Court does not base its judgments on senseless distinctions. At the end of the day, logic will [win] out. When there comes before us the taking of DNA from an arrestee for a traffic violation, the Court will predictably (and quite rightly) say, “We can find no significant difference between this case and King.” Make no mistake about it: As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.
Orin Kerr, a prominent Fourth Amendment scholar and Volokh Conspiracy contributor, took issue with some of Scalia’s language regarding the principles that Scalia announces related to searches incident to arrest. In particular, Kerr took issue with the following passage:
No matter the degree of invasiveness, suspicionless searches are never allowed if their principal end is ordinary crime-solving. A search incident to arrest either serves other ends (such as officer safety, in a search for weapons) or is not suspicionless (as when there is reason to believe the arrestee possesses evidence relevant to the crime of arrest).
Kerr notes that under United States v. Robinson, searches incident to arrest are both (1) suspicionless, and (2) perfectly legitimate vehicles to discover evidence of a crime, making Scalia’s pronouncements a misstatement of law. Personally, I think Kerr misreads Scalia’s decision: Scalia is talking about the initial judicial justifications that authorized suspicionless searches incident to arrest. In Robinson, the Court states:
“When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer’s safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person in order to prevent its concealment or destruction.”
The italicized portion is what Scalia is referring to. Yes, a suspicionless search for evidence is allowed, but it is justified by the need to prevent concealment or destruction. There is no such risk in the case of a DNA sample, which literally exists so long as the person has blood in their veins—a condition not likely to cease so long as the arrestee remains alive.
Furthermore, Robinson never contemplated an officer going inside a person’s body to search for evidence of a crime. The search of the person in Robinson was never expressly contemplated to extend to using a medical instrument to extract a piece of the arrestee’s body to be held in state’s evidence in perpetuo. The cases cited by the Robinson Court bear this out, e.g. Adams v. Williams, 407 U. S. 143 (1972) (searching of arrestee’s body revealed heroin), Cupp v. Murphy, 412 U. S. 291 (1973) (scrapings taken from the exterior of a person’s fingernails after police noticed a dark spot on the arrestee’s finger, creating individualized suspicion). In King, the DNA sample from the Arrestee’s blood could not have been acquired through a traditional search incident to arrest, and there was no individualized suspicion that he had committed the rape he was later linked with after his DNA was taken. So I don’t think that Robinson undermines Scalia’s assertions.
As I mentioned earlier, I think this case signals the watershed moment for people to start relying on state and local governments to protect them from unreasonable searches and seizures. A police search conducted in violation of state or local law can be just as effective at protecting individual rights as a properly balanced Fourth Amendment would be. At any rate, it’s refreshing to see Scalia’s trademark snark being employed in a good cause for once. Hopefully his fear of the encroaching police state will invigorate his future criminal justice jurisprudence, and perhaps the Fourth Amendment may yet find new life in the Roberts Court, however circumscribed or flimsy it may be.