DNA Crime Databases

'Why So Contrived? The Fourth Amendment and DNA Databases After Maryland v. King' by David H. Kaye in (2014) 104 Journal of Criminal Law and Criminology comments that

In Maryland v. King, 133 S. Ct. 1958 (2013), the Supreme Court narrowly upheld the constitutionality of routine collection and storage of DNA samples and profiles from arrestees. Oddly, the majority confined its analysis to using DNA for certain pretrial decisions rather than directly endorsing DNA’s more obvious value as a tool for generating investigative leads in unsolved crimes. This article suggests that this contrived analysis may have resulted from both existing Fourth Amendment case law and the desire to avoid intimating that a more egalitarian and extensive DNA database system also would be constitutional. It criticizes the opinions in King for failing to clarify the conditions that prompt balancing tests as opposed to per rules for ascertaining the required reasonableness of searches and seizures. It urges the adoption of a more coherent doctrinal framework for scrutinizing not just DNA profiling, but all forms of biometric data collection and analysis. Finally, it considers what King implies for more aggressive DNA database laws.

Kaye comments that

In Maryland v. King, the Supreme Court rejected a constitutional challenge to the practice of routinely collecting DNA from arrested individuals. A bare majority of five Justices effusively endorsed the acquisition of DNA samples for “identification” before conviction (DNA‐BC). In response, four dissenting justices called the opinion a precedent‐shattering and “scary” foundation for “the construction of . . . a genetic panopticon” that could gaze into the DNA of airline travelers, motorists, and public school students. 

The case began when police in Maryland arrested Alonzo King for menacing people with a shotgun. Following the arrest, they took his picture, recorded his fingerprints - and swabbed the inside of his cheeks. When checked against Maryland’s DNA database, his DNA profile led to the discovery that six years earlier, King had held a gun to the head of a 53‐year‐old woman and raped her. Before the DNA match, the police had no reason to suspect King of that crime. Lacking probable cause — or even reasonable suspicion — they did not rely on a judicial order to swab his cheek. They relied on a state law that mandated collection of DNA from all people charged with a crime of violence or burglary.  

King appealed the resulting rape conviction. He argued that the DNA collection de‐ prived him of the right, guaranteed by the Fourth Amendment to the Constitution, to be free from unreasonable searches or seizures. Maryland’s highest court agreed. It held that except in the rarest of circumstances where a suspect’s true identity could not be established by conventional methods — the court gave the example of a face transplant — forcing an arrestee to submit to DNA sampling was unconstitutional. 

The state petitioned the Supreme Court for review. Over and over, the Court had denied requests from convicted offenders and, more recently, from arrestees to address the legality of state and federal laws mandating DNA routine collection of their DNA. But this case was different. Never before had a state supreme court or a federal appellate court deemed a DNA database law unconstitutional. Even before the Court met to consider whether it would review the case, Chief Justice Roberts stayed the Maryland judgment. His chambers opinion stated that “there is a fair prospect that this Court will reverse the decision below” and found that “the decision below subjects Maryland to ongoing irreparable harm.” 

The Chief Justice’s prediction proved correct. But the margin of victory was as narrow it could be, and the majority opinion leaves important questions unresolved. Moreover, the dissenting justices issued a biting opinion importuning the Court “some day” to repudiate its “incursion upon the Fourth Amendment.” Indeed, when Justice Kennedy announced the opinion of the Court, Justice Scalia invoked the rare practice of reading a dissent aloud. For eleven minutes, he mocked the majority’s defense of Maryland’s law as a means of identifying arrestees. “[I]f the Court's identification theory is not wrong, there is no such thing as error,” he railed. As he and the three Justices who joined his dissenting opinion (Justices Ginsburg, Sotomayor, and Kagan) saw it, the majority’s reasoning “taxes the credulity of the credulous.” 

The popular press and bloggers seized on the dissent’s portrayal of the Court’s opinion. One trenchant journalist asked “Why did Kennedy write his opinion in a way that makes him sound like the last guy on Earth to discover Law & Order?” Why indeed? Justice Kennedy knew perfectly well that DNA‐BC was being used to solve crimes. That was why the Chief Justice had granted the stay. It was why Justice Alito had flagged the case during the oral argument as “perhaps the most important criminal procedure case that [the Supreme] Court has heard in decades.” It was why the first words from Maryland’s Deputy Attorney General at oral argument were “Mr. Chief Justice, and may it please the Court: Since 2009, when Maryland began to collect DNA samples from arrestees charged with violent crimes and burglary, there had been 225 matches, 75 prosecutions and 42 convictions, including that of Respondent King.” 

This Article explains why Justice Kennedy’s opinion seems so contrived, describes more convincing (and doctrinally adequate) ways to analyze the constitutionality of DNA‐BC, and probes the boundaries of the Court’s decision. I suggest that the King Court treated the primary value of DNA‐BC—as a crime‐solving tool—as merely incidental to other functions because of the Court’s ambivalent jurisprudence on the propriety of balancing state and individual interests to ascertain the reasonableness of searches under the Fourth Amendment. The majority was unwilling or unable to speak clearly about the category of cases in which balancing is permissible. It was unwilling or unable to consider creating an express exception to accommodate the traditional rule that searches that do not fall within defined exceptions necessarily require probable cause and a warrant. As a result, the Court opened itself to the dissent’s charge of blinking reality and of being less than “minimally competent [in] English.” 

But the dissenting opinion, I maintain, fares no better. For all its barbs and jibes, its turns of phrases, and its literary allusions, the opinion points to no fundamental individual interest or social value that could justify so bilious a condemnation of DNA‐BC. It presents an oversimplified description of Fourth Amendment jurisprudence and applies a one‐size‐fits‐all approach to all types of searches of the person even though these searches vary greatly in their impact on legitimate individual interests and in their value to law enforcement. 

In short, the opinions represent a lost opportunity to clarify the law on balancing tests for Fourth Amendment rights and to scrutinize biometric data collection and analysis practices within a more coherent doctrinal framework. To explain and justify this assessment, Part I describes the reasoning of the Justices. It shows that the majority opinion expands an ill‐defined set of cases in which a direct balancing of interests determines the reasonableness of certain searches or seizures. It also maintains that the dissent simply drew an arbitrary line that was compelled neither by precedent nor by the interests that should determine the scope of Fourth Amendment protection. 

Part II looks more deeply into how the Court reasoned about reasonableness. It describes the existing version of the rule that searches without a warrant and probable cause are unreasonable without an applicable exception — what I call the PSUWE (per‐se‐unreasonable‐with‐exceptions) framework. It contrasts this framework to an earlier “warrant preference” rule, regime, model, or view that “the modern Court has increasingly abandoned.” After explicating the difference between those two methods for analyzing warrantless searches, it argues that King does not obliterate the PSUWE framework. In ad dition, it suggests that balancing within this framework to create either an exception under the special‐needs rubric or a categorical exception for certain types of biometric data would have been preferable to the majority’s direct resort to balancing. 

Part III shows that the opinions in King, having been forged in the crucible of incremental, case‐by‐case adjudication, do not come to grips with obvious variations on Maryland’s version of DNA‐BC, let alone the most basic questions that society must confront about DNA databases for law enforcement. In this Part, I try to elucidate these questions and to enucleate the implications of the opinions for some variations in DNA‐BC statutes in the light of likely advances in DNA science and technology. This analysis requires us to attend to the nature of the DNA sequences that are and might be used in law enforcement databases, the analogy between anatomical biometrics and these DNA sequences, and the ad equacy of statutory protections against the misuse of genetic information. I conclude with a brief discussion of the way in which legislatures should think about building DNA databases for law enforcement now that the Court has issued a construction permit.

'DNA and Law Enforcement in the European Union: Tools and Human Rights Protection' by Helena Soleto Muñoz and Anna Fiodorova in (2014) 10(1) Utrecht Law Review 149-162 comments

Since its first successful use in criminal investigations in the 1980s, DNA has become a widely used and valuable tool to identify offenders and to acquit innocent persons. For a more beneficial use of the DNA-related data possessed, the Council of the European Union adopted Council Decisions 2008/615 and 2008/616 establishing a mechanism for a direct automated search in national EU Member States’ DNA databases. The article reveals the complications associated with the regulation on the use of DNA for criminal investigations as it is regulated by both EU and national legislation which results in a great deal of variations. It also analyses possible violations of and limitations to human rights when collecting DNA samples, as well as their analysis, use and storage. 

Since its first successful use in criminal investigations in the 1980s, DNA has become an important tool to identify the guilty and to absolve the innocent. It provided the impetus to set up national DNA databases and legal provisions to use DNA-related data as forensic evidence. 

Today, given the prospect of an increasingly interconnected society, in which technical resources and technological advances allow a confusingly fast flow of people and instantaneous information on a worldwide level, the evolution of the phenomenon of crime is not lagging behind, but is keeping in step with the process of transnationalisation and is taking advantage thereof. 

In view of this situation, the investigation and prosecution of crime have to overcome borders by means of various judicial and police cooperation instruments, in particular those on mutual assistance and information exchange. 

One of the most important boosts provided over the last few years in combating transnational crime has been the development of the Convention between the Kingdom of Belgium, the Federal Republic of Germany, the Kingdom of Spain, the French Republic, the Grand Duchy of Luxembourg, the Kingdom of the Netherlands and the Republic of Austria on the stepping up of cross-border cooperation, particularly in combating terrorism, cross-border crime and illegal migration (the Prüm Treaty) and its partial transformation into a EU-wide cooperation tool under Council Decision 2008/615/JHA1 and Council Decision 2008/616/JHA. 

Within this cooperation framework, the exchange of DNA profiles and related personal data acquires great relevance, given the usefulness and universality of the information it offers for investigations and prosecutions. However, there is also a grey area concerning this issue, as it poses a series of risks for fundamental rights and not all aspects of DNA collection, analysis and exchange are unified on the EU level while national provisions vary a great deal. 

The article aims to: – present the importance of DNA-related data for criminal investigations; – study the EU information exchange dimension in this area and to discover the possible reason for its success; – analyse which DNA collection, analysis, use and storage aspects are regulated by EU and national law and how they vary; and – examine possible violations of or limitations to fundamental rights while using DNA for criminal investigation purposes