MARYLAND v. KING
The Maryland DNA Collection Act (MDCA) allows state and local law enforcement officers to collect DNA samples from individuals who are arrested for a crime of violence, an attempted crime of violence, burglary, or attempted burglary. Alonzo Jay King, Jr. was arrested on first and second degree assault charges. While under arrest, but prior to conviction, King's DNA was collected and logged in Maryland's DNA database. That database matched King's DNA to a DNA sample from an unsolved rape case. This sample was the only evidence linking King to the rape. The trial judge denied King's motion to suppress the DNA evidence and he was convicted of first-degree rape and sentenced to life in prison.
King appealed the conviction, arguing that the MDCA was an unconstitutional infringement of his Fourth Amendment privilege against warrantless searches. The Court of Appeals of Maryland reversed, holding that the MDCA was unconstitutional. The court held that King's expectation of privacy was greater than Maryland's interest in using the DNA for identification purposes.
Does the Fourth Amendment allow states to collect and analyze DNA from people arrested, but not convicted, of serious crimes?
Legal provision: Fourth Amendment
Yes. Justice Anthony M. Kennedy delivered the opinion of the 5-4 majority. The Court held that conducting a DNA swab test as a part of the arrest procedure does not violate the Fourth Amendment because the test serves a legitimate state interest and is not so invasive so as to require a warrant. The routine administrative procedures that occur during a booking for an arrest do not require the same justification and the search of a location. The Court held that ascertaining an arrestee’s identity and criminal history is a crucial part of the arrest procedure and that a DNA test is just as valid and informative as fingerprinting. Determining an arrestee’s criminal history also serves the legitimate state interest of determining what level of risk the individual poses to the public and what conditions should be set on his/her release from custody.
Justice Antonin Scalia wrote a dissent in which he argued that the Fourth Amendment categorically prevents searching a person for evidence of a crime without cause. Because the majority’s opinion allows for DNA tests to be conducted in the absence of evidence linking the arrestee to a specific DNA-related crime, these tests fall within the boundaries of the British “general warrants” the Fourth Amendment was intended to prohibit. He also argued that the procedural safeguards on the DNA evidence make it an ineffective and redundant identification tool. Justice Ruth Bader Ginsburg, Justice Sonia Sotomayor, and Justice Elena Kagan joined in the dissent.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
MARYLAND, PETITIONER v. ALONZO JAY KING, Jr.
on writ of certiorari to the court of appeals of maryland
[June 3, 2013]
Justice Kennedy delivered the opinion of the Court.
In 2003 a man concealing his face and armed with a gun broke into a woman’s home in Salisbury, Maryland. He raped her. The police were unable to identify or apprehend the assailant based on any detailed description or other evidence they then had, but they did obtain from the victim a sample of the perpetrator’s DNA.
In 2009 Alonzo King was arrested in Wicomico County, Maryland, and charged with firstand second-degree assault for menacing a group of people with a shotgun. As part of a routine booking procedure for serious offenses, his DNA sample was taken by applying a cotton swab or filter paper—known as a buccal swab—to the inside of his cheeks. The DNA was found to match the DNA taken from the Salisbury rape victim. King was tried and convicted for the rape. Additional DNA samples were taken from him and used in the rape trial, but there seems to be no doubt that it was the DNA from the cheek sample taken at the time he was booked in 2009 that led to his first having been linked to the rape and charged with its commission.
The Court of Appeals of Maryland, on review of King’s rape conviction, ruled that the DNA taken when King was booked for the 2009 charge was an unlawful seizure because obtaining and using the cheek swab was an unreasonable search of the person. It set the rape conviction aside. This Court granted certiorari and now reverses the judgment of the Maryland court.I
When King was arrested on April 10, 2009, for menac-ing a group of people with a shotgun and charged in state court with both firstand second-degree assault, he was processed for detention in custody at the Wicomico County Central Booking facility. Booking personnel used a cheek swab to take the DNA sample from him pursuant to provisions of the Maryland DNA Collection Act (or Act).
On July 13, 2009, King’s DNA record was uploaded to the Maryland DNA database, and three weeks later, on August 4, 2009, his DNA profile was matched to the DNA sample collected in the unsolved 2003 rape case. Once the DNA was matched to King, detectives presented the forensic evidence to a grand jury, which indicted him for the rape. Detectives obtained a search warrant and took a second sample of DNA from King, which again matched the evidence from the rape. He moved to suppress the DNA match on the grounds that Maryland’s DNA collection law violated the Fourth Amendment. The Circuit Court Judge upheld the statute as constitutional. King pleaded not guilty to the rape charges but was convicted and sentenced to life in prison without the possibility of parole.
In a divided opinion, the Maryland Court of Appeals struck down the portions of the Act authorizing collection of DNA from felony arrestees as unconstitutional. The majority concluded that a DNA swab was an unreasonable search in violation of the Fourth Amendment because King’s “expectation of privacy is greater than the State’s purported interest in using King’s DNA to identify him.” 425 Md. 550, 561, 42 A. 3d 549, 556 (2012). In reaching that conclusion the Maryland Court relied on the deci-sions of various other courts that have concluded that DNA identification of arrestees is impermissible. See, e.g., People v. Buza, 129 Cal. Rptr. 3d 753 (App. 2011) (offi-cially depublished); Mario W. v. Kaipio, 228 Ariz. 207, 265 P. 3d 389 (App. 2011).
Both federal and state courts have reached differing conclusions as to whether the Fourth Amendment prohibits the collection and analysis of a DNA sample from persons arrested, but not yet convicted, on felony charges. This Court granted certiorari, 568 U. S. ___ (2012), to address the question. King is the respondent here.II
The advent of DNA technology is one of the most significant scientific advancements of our era. The full potential for use of genetic markers in medicine and science is still being explored, but the utility of DNA identification in the criminal justice system is already undisputed. Since the first use of forensic DNA analysis to catch a rapist and murderer in England in 1986, see J. Butler, Fundamentals of Forensic DNA Typing 5 (2009) (hereinafter Butler), law enforcement, the defense bar, and the courts have acknowledged DNA testing’s “unparalleled ability both to exonerate the wrongly convicted and to identify the guilty. It has the potential to significantly improve both the criminal justice system and police investigative practices.” District Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U. S. 52, 55 (2009) .A
The current standard for forensic DNA testing relies on an analysis of the chromosomes located within the nucleus of all human cells. “The DNA material in chromosomes is composed of ‘coding’ and ‘noncoding’ regions. The coding regions are known as genes and contain the information necessary for a cell to make proteins. . . . Non-protein-coding regions . . . are not related directly to making proteins, [and] have been referred to as ‘junk’ DNA.” Butler 25. The adjective “junk” may mislead the layperson, for in fact this is the DNA region used with near certainty to identify a person. The term apparently is intended to indicate that this particular noncoding region, while useful and even dispositive for purposes like identity, does not show more far-reaching and complex characteristics like genetic traits.
Many of the patterns found in DNA are shared among all people, so forensic analysis focuses on “repeated DNA sequences scattered throughout the human genome,” known as “short tandem repeats” (STRs). Id., at 147–148. The alternative possibilities for the size and frequency of these STRs at any given point along a strand of DNA are known as “alleles,” id., at 25; and multiple alleles are analyzed in order to ensure that a DNA profile matches only one individual. Future refinements may improve present technology, but even now STR analysis makes it “possible to determine whether a biological tissue matches a suspect with near certainty.” Osborne, supra, at 62.
The Act authorizes Maryland law enforcement author-ities to collect DNA samples from “an individual who is charged with . . . a crime of violence or an attempt to commit a crime of violence; or . . . burglary or an attempt to commit burglary.” Md. Pub. Saf. Code Ann. §2–504(a)(3)(i) (Lexis 2011). Maryland law defines a crime of violence to include murder, rape, first-degree assault, kidnaping, arson, sexual assault, and a variety of other serious crimes. Md. Crim. Law Code Ann. §14–101 (Lexis 2012). Once taken, a DNA sample may not be processed or placed in a database before the individual is arraigned (unless the individual consents). Md. Pub. Saf. Code Ann. §2–504(d)(1) (Lexis 2011). It is at this point that a judicial officer ensures that there is probable cause to detain the arrestee on a qualifying serious offense. If “all qualifying criminal charges are determined to be unsupported by probable cause . . . the DNA sample shall be immediately destroyed.” §2–504(d)(2)(i). DNA samples are also destroyed if “a criminal action begun against the individual . . . does not result in a conviction,” “the conviction is finally reversed or vacated and no new trial is permitted,” or “the individual is granted an unconditional pardon.” §2–511(a)(1).
The Act also limits the information added to a DNA database and how it may be used. Specifically, “[o]nly DNA records that directly relate to the identification of individuals shall be collected and stored.” §2–505(b)(1). No purpose other than identification is permissible: “A person may not willfully test a DNA sample for information that does not relate to the identification of indi-viduals as specified in this subtitle.” §2–512(c). Tests for familial matches are also prohibited. See §2–506(d) (“A person may not perform a search of the statewide DNA data base for the purpose of identification of an offender in connection with a crime for which the offender may be a biological relative of the individual from whom the DNA sample was acquired”). The officers involved in taking and analyzing respondent’s DNA sample complied with the Act in all respects.
Respondent’s DNA was collected in this case using a common procedure known as a “buccal swab.” “Buccal cell collection involves wiping a small piece of filter paper or a cotton swab similar to a Q-tip against the inside cheek of an individual’s mouth to collect some skin cells.” Butler 86. The procedure is quick and painless. The swab touches inside an arrestee’s mouth, but it requires no “surgical intrusio[n] beneath the skin,” Winston v. Lee, 470 U. S. 753, 760 (1985) , and it poses no “threa[t] to the health or safety” of arrestees, id., at 763.B
Respondent’s identification as the rapist resulted in part through the operation of a national project to standardize collection and storage of DNA profiles. Authorized by Congress and supervised by the Federal Bureau of Investigation, the Combined DNA Index System (CODIS) connects DNA laboratories at the local, state, and national level. Since its authorization in 1994, the CODIS system has grown to include all 50 States and a number of federal agencies. CODIS collects DNA profiles provided by local laboratories taken from arrestees, convicted offenders, and forensic evidence found at crime scenes. To participate in CODIS, a local laboratory must sign a memorandum of understanding agreeing to adhere to quality standards and submit to audits to evaluate compliance with the federal standards for scientifically rigorous DNA testing. Butler 270.
One of the most significant aspects of CODIS is the standardization of the points of comparison in DNA analysis. The CODIS database is based on 13 loci at which the STR alleles are noted and compared. These loci make possible extreme accuracy in matching individual samples, with a “random match probability of approximately 1 in 100 trillion (assuming unrelated individuals).” Ibid. The CODIS loci are from the non-protein coding junk regions of DNA, and “are not known to have any association with a genetic disease or any other genetic predisposition. Thus, the information in the database is only useful for human identity testing.” Id., at 279. STR information is recorded only as a “string of numbers”; and the DNA identification is accompanied only by information denoting the laboratory and the analyst responsible for the submission. Id., at 270. In short, CODIS sets uniform national standards for DNA matching and then facilitates connections between local law enforcement agencies who can share more specific information about matched STR profiles.
All 50 States require the collection of DNA from felony convicts, and respondent does not dispute the validity of that practice. See Brief for Respondent 48. Twenty-eight States and the Federal Government have adopted laws similar to the Maryland Act authorizing the collection of DNA from some or all arrestees. See Brief for State of California et al. as Amici Curiae 4, n. 1 (States Brief) (collecting state statutes). Although those statutes vary in their particulars, such as what charges require a DNA sample, their similarity means that this case implicates more than the specific Maryland law. At issue is a standard, expanding technology already in widespread use throughout the Nation.III A
Although the DNA swab procedure used here presents a question the Court has not yet addressed, the framework for deciding the issue is well established. The Fourth Amendment, binding on the States by the Fourteenth Amendment, provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” It can be agreed that using a buccal swab on the inner tissues of a person’s cheek in order to obtain DNA samples is a search. Virtually any “intrusio[n] into the human body,” Schmerber v. California, 384 U. S. 757, 770 (1966) , will work an invasion of “ ‘cherished personal security’ that is subject to constitutional scrutiny,” Cupp v. Murphy, 412 U. S. 291, 295 (1973) (quoting Terry v. Ohio, 392 U. S. 1 –25 (1968)). The Court has applied the Fourth Amendment to police efforts to draw blood, see Schmerber, supra; Missouri v. McNeely, 569 U. S. ___ (2013), scraping an arrestee’s fingernails to obtain trace evidence, see Cupp, supra, and even to “a breathalyzer test, which generally requires the production of alveolar or ‘deep lung’ breath for chemical analysis,” Skinner v. Railway Labor Executives’ Assn., 489 U. S. 602, 616 (1989) .
A buccal swab is a far more gentle process than a venipuncture to draw blood. It involves but a light touch on the inside of the cheek; and although it can be deemed a search within the body of the arrestee, it requires no “surgical intrusions beneath the skin.” Winston, 470 U. S., at 760. The fact than an intrusion is negligible is of central relevance to determining reasonableness, although it is still a search as the law defines that term.B
To say that the Fourth Amendment applies here is the beginning point, not the end of the analysis. “[T]he Fourth Amendment’s proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner.” Schmerber, supra, at 768. “As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is ‘reasonableness.’ ” Vernonia School Dist. 47J v. Acton, 515 U. S. 646, 652 (1995) . In giving content to the inquiry whether an intrusion is reasonable, the Court has preferred “some quantum of individualized suspicion . . . [as] a prerequisite to a constitutional search or seizure. But the Fourth Amendment imposes no irreducible requirement of such suspicion.” United States v. Martinez-Fuerte, 428 U. S. 543 –561 (1976) (citation and footnote omitted).
In some circumstances, such as “[w]hen faced with special law enforcement needs, diminished expectations of privacy, minimal intrusions, or the like, the Court has found that certain general, or individual, circumstances may render a warrantless search or seizure reasonable.” Illinois v. McArthur, 531 U. S. 326, 330 (2001) . Those circumstances diminish the need for a warrant, either because “the public interest is such that neither a warrant nor probable cause is required,” Maryland v. Buie, 494 U. S. 325, 331 (1990) , or because an individual is already on notice, for instance because of his employment, see Skinner, supra, or the conditions of his release from government custody, see Samson v. California, 547 U. S. 843 (2006) , that some reasonable police intrusion on his pri-vacy is to be expected. The need for a warrant is perhaps least when the search involves no discretion that could properly be limited by the “interpo[lation of] a neutral magistrate between the citizen and the law enforcement officer.” Treasury Employees v. Von Raab, 489 U. S. 656, 667 (1989) .
The instant case can be addressed with this background. The Maryland DNA Collection Act provides that, in order to obtain a DNA sample, all arrestees charged with serious crimes must furnish the sample on a buccal swab applied, as noted, to the inside of the cheeks. The arrestee is already in valid police custody for a serious offense supported by probable cause. The DNA collection is not subject to the judgment of officers whose perspective might be “colored by their primary involvement in ‘the often competitive enterprise of ferreting out crime.’ ” Terry, supra, at 12 (quoting Johnson v. United States, 333 U. S. 10, 14 (1948) ). As noted by this Court in a different but still instructive context involving blood testing, “[b]oth the circumstances justifying toxicological testing and the permissible limits of such intrusions are defined narrowly and specifically in the regulations that authorize them . . . . Indeed, in light of the standardized nature of the tests and the minimal discretion vested in those charged with administering the program, there are virtually no facts for a neutral magistrate to evaluate.” Skinner, supra, at 622. Here, the search effected by the buccal swab of respondent falls within the category of cases this Court has analyzed by reference to the proposition that the “touchstone of the Fourth Amendment is reasonableness, not individualized suspicion.” Samson, supra, at 855, n. 4.
Even if a warrant is not required, a search is not beyond Fourth Amendment scrutiny; for it must be reasonable in its scope and manner of execution. Urgent government interests are not a license for indiscriminate police behavior. To say that no warrant is required is merely to acknowledge that “rather than employing a per se rule of unreasonableness, we balance the privacy-related and law enforcement-related concerns to determine if the intrusion was reasonable.” McArthur, supra, at 331. This application of “traditional standards of reasonableness” requires a court to weigh “the promotion of legitimate governmental interests” against “the degree to which [the search] intrudes upon an individual’s privacy.” Wyoming v. Houghton, 526 U. S. 295, 300 (1999) . An assessment of reasonableness to determine the lawfulness of requiring this class of arrestees to provide a DNA sample is central to the instant case.IV A
The legitimate government interest served by the Maryland DNA Collection Act is one that is well established: 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. It is beyond dispute that “probable cause provides legal justification for arresting a person suspected of crime, and for a brief period of detention to take the administrative steps incident to arrest.” Gerstein v. Pugh, 420 U. S. 103 –114 (1975). Also uncontested is the “right on the part of the Government, always recognized under English and American law, to search the person of the accused when legally arrested.” Weeks v. United States, 232 U. S. 383, 392 (1914) , overruled on other grounds, Mapp v. Ohio, 367 U. S. 643 (1961) . “The validity of the search of a person incident to a lawful arrest has been regarded as settled from its first enunciation, and has remained virtually unchallenged.” United States v. Robinson, 414 U. S. 218, 224 (1973) . Even in that context, the Court has been clear that individual suspicion is not necessary, because “[t]he constitutionality of a search incident to an arrest does not depend on whether there is any indication that the person ar-rested possesses weapons or evidence. The fact of a lawful arrest, standing alone, authorizes a search.” Michigan v. DeFillippo, 443 U. S. 31, 35 (1979) .
The “routine administrative procedure[s] at a police sta-tion house incident to booking and jailing the suspect” derive from different origins and have different constitutional justifications than, say, the search of a place, Illinois v. Lafayette, 462 U. S. 640, 643 (1983) ; for the search of a place not incident to an arrest depends on the “fair probability that contraband or evidence of a crime will be found in a particular place,” Illinois v. Gates, 462 U. S. 213, 238 (1983) . The interests are further different when an individual is formally processed into police custody. Then “the law is in the act of subjecting the body of the accused to its physical dominion.” People v. Chiagles, 237 N. Y. 193, 197, 142 N. E. 583, 584 (1923) (Cardozo, J.). When probable cause exists to remove an individual from the normal channels of society and hold him in legal custody, DNA identification plays a critical role in serving those interests.
First, “[i]n every criminal case, it is known and must be known who has been arrested and who is being tried.” Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty., 542 U. S. 177, 191 (2004) . An individual’s identity is more than just his name or Social Security number, and the government’s interest in identification goes beyond ensuring that the proper name is typed on the indictment. Identity has never been considered limited to the name on the arrestee’s birth certificate. In fact, a name is of little value compared to the real interest in identification at stake when an individual is brought into custody. “It is a well recognized aspect of criminal conduct that the per-petrator will take unusual steps to conceal not only his conduct, but also his identity. Disguises used while committing a crime may be supplemented or replaced by changed names, and even changed physical features.” Jones v. Murray, 962 F. 2d 302, 307 (CA4 1992). An “arrestee may be carrying a false ID or lie about his identity,” and “criminal history records . . . can be inaccurate or incomplete.” Florence v. Board of Chosen Freeholders of County of Burlington, 566 U. S. ___, ___ (2012) (slip op., at 16).
A suspect’s criminal history is a critical part of his identity that officers should know when processing him for detention. It is a common occurrence that “[p]eople detained for minor offenses can turn out to be the most devious and dangerous criminals. Hours after the Oklahoma City bombing, Timothy McVeigh was stopped by a state trooper who noticed he was driving without a license plate. Police stopped serial killer Joel Rifkin for the same reason. One of the terrorists involved in the September 11 attacks was stopped and ticketed for speeding just two days before hijacking Flight 93.” Id., at ___ (slip op., at 14) (citations omitted). Police already seek this crucial identifying information. They use routine and accepted means as varied as comparing the suspect’s booking photograph to sketch artists’ depictions of persons of interest, showing his mugshot to potential witnesses, and of course making a computerized comparison of the arrestee’s fingerprints against electronic databases of known criminals and unsolved crimes. In this respect the only difference between DNA analysis and the accepted use of fingerprint databases is the unparalleled accuracy DNA provides.
The task of identification necessarily entails searching public and police records based on the identifying information provided by the arrestee to see what is already known about him. The DNA collected from arrestees is an irrefutable identification of the person from whom it was taken. Like a fingerprint, the 13 CODIS loci are not themselves evidence of any particular crime, in the way that a drug test can by itself be evidence of illegal narcotics use. A DNA profile is useful to the police because it gives them a form of identification to search the records already in their valid possession. In this respect the use of DNA for identification is no different than matching an arrestee’s face to a wanted poster of a previously unidentified suspect; or matching tattoos to known gang symbols to reveal a criminal affiliation; or matching the arrestee’s fingerprints to those recovered from a crime scene. See Tr. of Oral Arg. 19. DNA is another metric of identification used to connect the arrestee with his or her public persona, as reflected in records of his or her actions that are available to the police. Those records may be linked to the arrestee by a variety of relevant forms of identification, including name, alias, date and time of previous convictions and the name then used, photograph, Social Security number, or CODIS profile. These data, found in official records, are checked as a routine matter to produce a more comprehensive record of the suspect’s complete identity. Finding occurrences of the arrestee’s CODIS profile in outstanding cases is consistent with this common practice. It uses a different form of identification than a name or fingerprint, but its function is the same.
Second, law enforcement officers bear a responsibility for ensuring that the custody of an arrestee does not create inordinate “risks for facility staff, for the existing detainee population, and for a new detainee.” Florence, supra, at ___ (slip op., at 10). DNA identification can provide untainted information to those charged with de-taining suspects and detaining the property of any felon. For these purposes officers must know the type of person whom they are detaining, and DNA allows them to make critical choices about how to proceed.
“Knowledge of identity may inform an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder. On the other hand, knowing identity may help clear a suspect and allow the police to concentrate their efforts elsewhere. Identity may prove particularly important in [certain cases, such as] where the police are investigating what appears to be a domestic assault. Officers called to investigate domestic disputes need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.” Hiibel, supra, at 186.
Recognizing that a name alone cannot address this interest in identity, the Court has approved, for example, “a visual inspection for certain tattoos and other signs of gang affiliation as part of the intake process,” because “[t]he identification and isolation of gang members before they are admitted protects everyone.” Florence, supra, at ___ (slip op., at 11).
Third, looking forward to future stages of criminal prosecution, “the Government has a substantial interest in ensuring that persons accused of crimes are available for trials.” Bell v. Wolfish, 441 U. S. 520, 534 (1979) . A person who is arrested for one offense but knows that he has yet to answer for some past crime may be more inclined to flee the instant charges, lest continued contact with the criminal justice system expose one or more other serious offenses. For example, a defendant who had committed a prior sexual assault might be inclined to flee on a burglary charge, knowing that in every State a DNA sample would be taken from him after his conviction on the burglary charge that would tie him to the more serious charge of rape. In addition to subverting the administration of justice with respect to the crime of arrest, this ties back to the interest in safety; for a detainee who absconds from custody presents a risk to law enforcement officers, other detainees, victims of previous crimes, witnesses, and society at large.
Fourth, an arrestee’s past conduct is essential to an assessment of the danger he poses to the public, and this will inform a court’s determination whether the individual should be released on bail. “The government’s interest in preventing crime by arrestees is both legitimate and compelling.” United States v. Salerno, 481 U. S. 739, 749 (1987) . DNA identification of a suspect in a violent crime provides critical information to the police and judicial officials in making a determination of the arrestee’s future dangerousness. This inquiry always has entailed some scrutiny beyond the name on the defendant’s driver’s license. For example, Maryland law requires a judge to take into account not only “the nature and circumstances of the offense charged” but also “the defendant’s family ties, employment status and history, financial resources, reputation, character and mental condition, length of res-idence in the community.” 1 Md. Rules 4–216(f)(1)(A), (C) (2013). Knowing that the defendant is wanted for a previous violent crime based on DNA identification is especially probative of the court’s consideration of “the danger of the defendant to the alleged victim, another person, or the community.” Rule 4–216(f)(1)(G); see also 18 U. S. C. §3142 (2006 ed. and Supp. V) (similar requirements).
This interest is not speculative. In considering laws to require collecting DNA from arrestees, government agencies around the Nation found evidence of numerous cases in which felony arrestees would have been identified as violent through DNA identification matching them to previous crimes but who later committed additional crimes because such identification was not used to detain them. See Denver’s Study on Preventable Crimes (2009) (three examples), online at http://www.denverda.org/DNA_ Documents/Denver%27s%20Preventable%20Crimes%20 Study.pdf (all Internet materials as visited May 31, 2013, and available in Clerk of Court’s case file); Chi-cago’s Study on Preventable Crimes (2005) (five examples), online at http://www.denverda.org/DNA_Documents/ Arrestee_Database/Chicago%20Preventable%20CrimesFinal.pdf; Maryland Study on Preventable Crimes (2008) (three examples), online at http://www.denverda.org/DNA_ Documents/MarylandDNAarresteestudy.pdf.
Present capabilities make it possible to complete a DNA identification that provides information essential to determining whether a detained suspect can be released pending trial. See, e.g., States Brief 18, n. 10 (“DNA identification database samples have been processed in as few as two days in California, although around 30 days has been average”). Regardless of when the initial bail decision is made, release is not appropriate until a further determination is made as to the person’s identity in the sense not only of what his birth certificate states but also what other records and data disclose to give that identity more meaning in the whole context of who the person really is. And even when release is permitted, the background identity of the suspect is necessary for determining what conditions must be met before release is allowed. If release is authorized, it may take time for the conditions to be met, and so the time before actual release can be substantial. For example, in the federal system, defendants released conditionally are detained on average for 112 days; those released on unsecured bond for 37 days; on personal recognizance for 36 days; and on other financial conditions for 27 days. See Dept. of Justice, Bureau of Justice Statistics, Compendium of Federal Justice Statistics 45 (NCJ–213476, Dec. 2006) online at http://bjs.gov/ content/pub/pdf/cfjs04.pdf. During this entire period, ad-ditional and supplemental data establishing more about the person’s identity and background can provide critical information relevant to the conditions of release and whether to revisit an initial release determination. The facts of this case are illustrative. Though the record is not clear, if some thought were being given to releasing the respondent on bail on the gun charge, a release that would take weeks or months in any event, when the DNA report linked him to the prior rape, it would be relevant to the conditions of his release. The same would be true with a supplemental fingerprint report.
Even if an arrestee is released on bail, development of DNA identification revealing the defendant’s unknown violent past can and should lead to the revocation of his conditional release. See 18 U. S. C. §3145(a) (providing for revocation of release); see also States Brief 11–12 (discussing examples where bail and diversion determinations were reversed after DNA identified the arrestee’s violent history). Pretrial release of a person charged with a dangerous crime is a most serious responsibility. It is reason-able in all respects for the State to use an accepted database to determine if an arrestee is the object of suspicion in other serious crimes, suspicion that may provide a strong incentive for the arrestee to escape and flee.
Finally, in the interests of justice, the identification of an arrestee as the perpetrator of some heinous crime may have the salutary effect of freeing a person wrongfully imprisoned for the same offense. “[P]rompt [DNA] testing . . . would speed up apprehension of criminals before they commit additional crimes, and prevent the grotesque detention of . . . innocent people.” J. Dwyer, P. Neufeld, & B. Scheck, Actual Innocence 245 (2000).
Because proper processing of arrestees is so important and has consequences for every stage of the criminal process, the Court has recognized that the “governmental interests underlying a station-house search of the ar-restee’s person and possessions may in some circumstances be even greater than those supporting a search imme-diately following arrest.” Lafayette, 462 U. S., at 645. Thus, the Court has been reluctant to circumscribe the authority of the police to conduct reasonable booking searches. For example, “[t]he standards traditionally governing a search incident to lawful arrest are not . . . commuted to the stricter Terry standards.” Robinson, 414 U. S., at 234. Nor are these interests in identification served only by a search of the arrestee himself. “[I]nspection of an arrestee’s personal property may assist the police in ascertaining or verifying his identity.” Lafayette, supra, at 646. And though the Fifth Amendment’s protection against self-incrimination is not, as a general rule, governed by a reasonableness standard, the Court has held that “questions . . . reasonably related to the police’s administrative concerns . . . fall outside the protections of Miranda [v. Arizona, 384 U. S. 436 (1966) ] and the answers thereto need not be suppressed.” Pennsylvania v. Muniz, 496 U. S. 582 –602 (1990).B
DNA identification represents an important advance in the techniques used by law enforcement to serve le-gitimate police concerns for as long as there have been arrests, concerns the courts have acknowledged and approved for more than a century. Law enforcement agencies routinely have used scientific advancements in their standard procedures for the identification of arrestees. “Police had been using photography to capture the faces of criminals almost since its invention.” S. Cole, Suspect Identities 20 (2001). Courts did not dispute that practice, concluding that a “sheriff in making an arrest for a felony on a warrant has the right to exercise a discretion . . . , [if] he should deem it necessary to the safe-keeping of a prisoner, and to prevent his escape, or to enable him the more readily to retake the prisoner if he should escape, to take his photograph.” State ex rel. Bruns v. Clausmier, 154 Ind. 599, 601, 603, 57 N. E. 541, 542 (1900). By the time that it had become “the daily practice of the police officers and detectives of crime to use photographic pictures for the discovery and identification of criminals,” the courts likewise had come to the conclusion that “it would be [a] matter of regret to have its use unduly restricted upon any fanciful theory or constitutional privilege.” Shaffer v. United States, 24 App. D. C. 417, 426 (1904).
Beginning in 1887, some police adopted more exacting means to identify arrestees, using the system of precise physical measurements pioneered by the French anthropologist Alphonse Bertillon. Bertillon identification consisted of 10 measurements of the arrestee’s body, along with a “scientific analysis of the features of the face and an exact anatomical localization of the various scars, marks, &c., of the body.” Defense of the Bertillon System, N. Y. Times, Jan. 20, 1896, p. 3. “[W]hen a prisoner was brought in, his photograph was taken according to the Bertillon system, and his body measurements were then made. The measurements were made . . . and noted down on the back of a card or a blotter, and the photograph of the prisoner was expected to be placed on the card. This card, therefore, furnished both the likeness and description of the prisoner, and was placed in the rogues’ gallery, and copies were sent to various cities where similar records were kept.” People ex rel. Jones v. Diehl, 53 App. Div. 645, 646, 65 N. Y. S. 801, 802 (1900). As in the present case, the point of taking this information about each arrestee was not limited to verifying that the proper name was on the indictment. These procedures were used to “facilitate the recapture of escaped prisoners,” to aid “the investigation of their past records and personal history,” and “to preserve the means of identification for . . . future supervision after discharge.” Hodgeman v. Olsen, 86 Wash. 615, 619, 150 P. 1122, 1124 (1915); see also McGovern v. Van Riper, 137 N. J. Eq. 24, 33–34, 43 A. 2d 514, 519 (Ch. 1945) (“[C]riminal identification is said to have two main purposes: (1) The identification of the accused as the person who committed the crime for which he is being held; and, (2) the identification of the accused as the same person who has been previously charged with, or convicted of, other offenses against the criminal law”).
Perhaps the most direct historical analogue to the DNA technology used to identify respondent is the familiar practice of fingerprinting arrestees. From the advent of this technique, courts had no trouble determining that fingerprinting was a natural part of “the administrative steps incident to arrest.” County of Riverside v. McLaughlin, 500 U. S. 44, 58 (1991) . In the seminal case of United States v. Kelly, 55 F. 2d 67 (CA2 1932), Judge Augustus Hand wrote that routine fingerprinting did not violate the Fourth Amendment precisely because it fit within the accepted means of processing an arrestee into custody:
“Finger printing seems to be no more than an exten-sion of methods of identification long used in dealing with persons under arrest for real or supposed vio-lations of the criminal laws. It is known to be a very certain means devised by modern science to reach the desired end, and has become especially important in a time when increased population and vast aggregations of people in urban centers have rendered the notoriety of the individual in the community no longer a ready means of identification.. . . . .
“We find no ground in reason or authority for interfering with a method of identifying persons charged with crime which has now become widely known and frequently practiced.” Id., at 69–70.
By the middle of the 20th century, it was considered “elementary that a person in lawful custody may be required to submit to photographing and fingerprinting as part of routine identification processes.” Smith v. United States, 324 F. 2d 879, 882 (CADC 1963) (Burger, J.) (citations omitted).
DNA identification is an advanced technique superior to fingerprinting in many ways, so much so that to insist on fingerprints as the norm would make little sense to either the forensic expert or a layperson. The additional intrusion upon the arrestee’s privacy beyond that associated with fingerprinting is not significant, see Part V, infra, and DNA is a markedly more accurate form of identifying arrestees. A suspect who has changed his facial features to evade photographic identification or even one who has undertaken the more arduous task of altering his fingerprints cannot escape the revealing power of his DNA.
The respondent’s primary objection to this analogy is that DNA identification is not as fast as fingerprinting, and so it should not be considered to be the 21st-century equivalent. See Tr. of Oral Arg. 53. But rapid analysis of fingerprints is itself of recent vintage. The FBI’s vaunted Integrated Automated Fingerprint Identification System (IAFIS) was only “launched on July 28, 1999. Prior to this time, the processing of . . . fingerprint submissions was largely a manual, labor-intensive process, taking weeks or months to process a single submission.” Federal Bureau of Investigation, Integrated Automated Fingerprint Identification System, online at http://www.fbi.gov/about-us/cjis/ fingerprints_biometrics/iafis/iafis. It was not the advent of this technology that rendered fingerprint analysis constitutional in a single moment. The question of how long it takes to process identifying information obtained from a valid search goes only to the efficacy of the search for its purpose of prompt identification, not the constitutionality of the search. Cf. Ontario v. Quon, 560 U. S. ___, ___ (2010) (slip op., at 15). Given the importance of DNA in the identification of police records pertaining to arrestees and the need to refine and confirm that identity for its important bearing on the decision to continue release on bail or to impose of new conditions, DNA serves an essential purpose despite the existence of delays such as the one that occurred in this case. Even so, the delay in processing DNA from arrestees is being reduced to a substantial degree by rapid technical advances. See, e.g., At-torney General DeWine Announces Significant Drop in DNA Turnaround Time (Jan. 4, 2013) (DNA processing time reduced from 125 days in 2010 to 20 days in 2012), online at http://ohioattorneygeneral.gov/Media/News-Releases/January2013/Attorney-General-DeWine-Announces-SignificantDrop; Gov. Jindal Announces Elimination of DNA Backlog, DNA Unit Now Operating in Real Time (Nov. 17, 2011) (average DNA report time reduced from a year or more in 2009 to 20 days in 2011), online at http:// www.gov.state.la.us/index.cfm?md=newsroom&tmp=detail&articleID=3102. And the FBI has already begun testing devices that will enable police to process the DNA of arrestees within 90 minutes. See Brief for National District Attorneys Association as Amicus Curiae 20–21; Tr. of Oral Arg. 17. An assessment and understanding of the reasonableness of this minimally invasive search of a person detained for a serious crime should take account of these technical advances. Just as fingerprinting was constitutional for generations prior to the introduction of IAFIS, DNA identification of arrestees is a permissible tool of law enforcement today. New technology will only further improve its speed and therefore its effectiveness. And, as noted above, actual release of a serious offender as a routine matter takes weeks or months in any event. By identifying not only who the arrestee is but also what other available records disclose about his past to show who he is, the police can ensure that they have the proper person under arrest and that they have made the necessary arrangements for his custody; and, just as important, they can also prevent suspicion against or prosecution of the innocent.
In sum, there can be little reason to question “the legitimate interest of the government in knowing for an absolute certainty the identity of the person arrested, in knowing whether he is wanted elsewhere, and in ensuring his identification in the event he flees prosecution.” 3 W. LaFave, Search and Seizure §5.3(c), p. 216 (5th ed. 2012). To that end, courts have confirmed that the Fourth Amendment allows police to take certain routine “administrative steps incident to arrest—i.e., . . . book[ing], photograph[ing], and fingerprint[ing].” McLaughlin, 500 U. S., at 58. DNA identification of arrestees, of the type approved by the Maryland statute here at issue, is “no more than an extension of methods of identification long used in dealing with persons under arrest.” Kelly, 55 F. 2d, at 69. In the balance of reasonableness required by the Fourth Amendment, therefore, the Court must give great weight both to the significant government interest at stake in the identification of arrestees and to the unmatched potential of DNA identification to serve that interest.V A
By comparison to this substantial government interest and the unique effectiveness of DNA identification, the intrusion of a cheek swab to obtain a DNA sample is a minimal one. True, a significant government interest does not alone suffice to justify a search. The government interest must outweigh the degree to which the search in-vades an individual’s legitimate expectations of privacy. In considering those expectations in this case, however, the necessary predicate of a valid arrest for a serious offense is fundamental. “Although the underlying command of the Fourth Amendment is always that searches and seizures be reasonable, what is reasonable depends on the context within which a search takes place.” New Jersey v. T. L. O., 469 U. S. 325, 337 (1985) . “[T]he legitimacy of certain privacy expectations vis-à-vis the State may depend upon the individual’s legal relationship with the State.” Vernonia School Dist. 47J, 515 U. S., at 654.
The reasonableness of any search must be considered in the context of the person’s legitimate expectations of privacy. For example, when weighing the invasiveness of urinalysis of high school athletes, the Court noted that “[l]egitimate privacy expectations are even less with regard to student athletes. . . . Public school locker rooms, the usual sites for these activities, are not notable for the privacy they afford.” Id., at 657. Likewise, the Court has used a context-specific benchmark inapplicable to the public at large when “the expectations of privacy of covered employees are diminished by reason of their participa-tion in an industry that is regulated pervasively,” Skinner, 489 U. S., at 627, or when “the ‘operational realities of the workplace’ may render entirely reasonable certain work-related intrusions by supervisors and co-workers that might be viewed as unreasonable in other contexts,” Von Raab, 489 U. S., at 671.
The expectations of privacy of an individual taken into police custody “necessarily [are] of a diminished scope.” Bell, 441 U. S., at 557. “[B]oth the person and the property in his immediate possession may be searched at the station house.” United States v. Edwards, 415 U. S. 800, 803 (1974) . A search of the detainee’s person when he is booked into custody may “ ‘involve a relatively extensive exploration,’ ” Robinson, 414 U. S., at 227, including “requir[ing] at least some detainees to lift their genitals or cough in a squatting position,” Florence, 566 U. S., at ___ (slip op., at 13).
In this critical respect, the search here at issue differs from the sort of programmatic searches of either the public at large or a particular class of regulated but otherwise law-abiding citizens that the Court has previously labeled as “ ‘special needs’ ” searches. Chandler v. Miller, 520 U. S. 305, 314 (1997) . When the police stop a motorist at a checkpoint, see Indianapolis v. Edmond, 531 U. S. 32 (2000) , or test a political candidate for illegal narcotics, see Chandler, supra, they intrude upon substantial expectations of privacy. So the Court has insisted on some purpose other than “to detect evidence of ordinary criminal wrongdoing” to justify these searches in the absence of individualized suspicion. Edmond, supra, at 38. Once an individual has been arrested on probable cause for a dangerous offense that may require detention before trial, however, his or her expectations of privacy and freedom from police scrutiny are reduced. DNA identification like that at issue here thus does not require consideration of any unique needs that would be required to justify searching the average citizen. The special needs cases, though in full accord with the result reached here, do not have a direct bearing on the issues presented in this case, because unlike the search of a citizen who has not been suspected of a wrong, a detainee has a reduced expectation of privacy.
The reasonableness inquiry here considers two other circumstances in which the Court has held that particularized suspicion is not categorically required: “diminished expectations of privacy [and] minimal intrusions.” McArthur, 531 U. S., at 330. This is not to suggest that any search is acceptable solely because a person is in custody. Some searches, such as invasive surgery, see Winston, 470 U. S. 753 , or a search of the arrestee’s home, see Chimel v. California, 395 U. S. 752 (1969) , involve either greater intrusions or higher expectations of privacy than are present in this case. In those situations, when the Court must “balance the privacy-related and law enforcement-related concerns to determine if the intrusion was rea-sonable,” McArthur, supra, at 331, the privacy-related concerns are weighty enough that the search may require a warrant, notwithstanding the diminished expectations of privacy of the arrestee.
Here, by contrast to the approved standard procedures incident to any arrest detailed above, a buccal swab involves an even more brief and still minimal intrusion. A gentle rub along the inside of the cheek does not break the skin, and it “involves virtually no risk, trauma, or pain.” Schmerber, 384 U. S., at 771. “A crucial factor in analyzing the magnitude of the intrusion . . . is the extent to which the procedure may threaten the safety or health of the individual,” Winston, supra, at 761, and nothing suggests that a buccal swab poses any physical danger whatsoever. A brief intrusion of an arrestee’s person is subject to the Fourth Amendment, but a swab of this nature does not increase the indignity already attendant to normal incidents of arrest.B
In addition the processing of respondent’s DNA sam-ple’s 13 CODIS loci did not intrude on respondent’s privacy in a way that would make his DNA identification unconstitutional.
First, as already noted, the CODIS loci come from noncoding parts of the DNA that do not reveal the genetic traits of the arrestee. While science can always progress further, and those progressions may have Fourth Amendment consequences, alleles at the CODIS loci “are not at present revealing information beyond identification.” Katsanis & Wagner, Characterization of the Standard and Recommended CODIS Markers, 58 J. Forensic Sci. S169, S171 (2013). The argument that the testing at issue in this case reveals any private medical information at all is open to dispute.
And even if non-coding alleles could provide some information, they are not in fact tested for that end. It is undisputed that law enforcement officers analyze DNA for the sole purpose of generating a unique identifying number against which future samples may be matched. This parallels a similar safeguard based on actual practice in the school drug-testing context, where the Court deemed it “significant that the tests at issue here look only for drugs, and not for whether the student is, for example, epileptic, pregnant, or diabetic.” Vernonia School Dist. 47J, 515 U. S., at 658. If in the future police analyze samples to determine, for instance, an arrestee’s predisposition for a particular disease or other hereditary factors not relevant to identity, that case would present additional privacy concerns not present here.
Finally, the Act provides statutory protections that guard against further invasion of privacy. As noted above, the Act requires that “[o]nly DNA records that directly relate to the identification of individuals shall be collected and stored.” Md. Pub. Saf. Code Ann. §2–505(b)(1). No purpose other than identification is permissible: “A person may not willfully test a DNA sample for information that does not relate to the identification of individuals as specified in this subtitle.” §2–512(c). This Court has noted often that “a ‘statutory or regulatory duty to avoid unwarranted disclosures’ generally allays . . . privacy concerns.” NASA v. Nelson, 562 U. S. ___, ___ (2011) (slip op., at 20) (quoting Whalen v. Roe, 429 U. S. 589, 605 (1977) ). The Court need not speculate about the risks posed “by a system that did not contain comparable security provisions.” Id., at 606. In light of the scientific and statutory safeguards, once respondent’s DNA was lawfully collected the STR analysis of respondent’s DNA pursuant to CODIS procedures did not amount to a significant invasion of privacy that would render the DNA identification impermissible under the Fourth Amendment.* * *
In light of the context of a valid arrest supported by probable cause respondent’s expectations of privacy were not offended by the minor intrusion of a brief swab of his cheeks. By contrast, that same context of arrest gives rise to significant state interests in identifying respondent not only so that the proper name can be attached to his charges but also so that the criminal justice system can make informed decisions concerning pretrial custody. Upon these considerations the Court concludes that DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure. When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.
The judgment of the Court of Appeals of Maryland is reversed.
It is so ordered.
SUPREME COURT OF THE UNITED STATES
MARYLAND, PETITIONER v. ALONZO JAY KING, Jr.
on writ of certiorari to the court of appeals of maryland
[June 3, 2013]
Justice Scalia, with whom Justice Ginsburg, Justice Sotomayor, and Justice Kagan join, dissenting.
The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment. Whenever this Court has allowed a suspicionless search, it has insisted upon a justifying motive apart from the investigation of crime.
It is obvious that no such noninvestigative motive exists in this case. 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. And the Court’s comparison of Maryland’s DNA searches to other techniques, such as fingerprinting, can seem apt only to those who know no more than today’s opinion has chosen to tell them about how those DNA searches actually work.I A
At the time of the Founding, Americans despised the British use of so-called “general warrants”—warrants not grounded upon a sworn oath of a specific infraction by a particular individual, and thus not limited in scope and application. The first Virginia Constitution declared that “general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed,” or to search a person “whose offence is not particularly described and supported by evidence,” “are grievous and oppressive, and ought not be granted.” Va. Declaration of Rights §10 (1776), in 1 B. Schwartz, The Bill of Rights: A Documentary History 234, 235 (1971). The Maryland Declaration of Rights similarly provided that general warrants were “illegal.” Md. Declaration of Rights §XXIII (1776), in id., at 280, 282.
In the ratification debates, Antifederalists sarcastically predicted that the general, suspicionless warrant would be among the Constitution’s “blessings.” Blessings of the New Government, Independent Gazetteer, Oct. 6, 1787, in 13 Documentary History of the Ratification of the Constitution 345 (J. Kaminski & G. Saladino eds. 1981). “Brutus” of New York asked why the Federal Constitution contained no provision like Maryland’s, Brutus II, N. Y. Journal, Nov. 1, 1787, in id., at 524, and Patrick Henry warned that the new Federal Constitution would expose the citizenry to searches and seizures “in the most arbitrary manner, without any evidence or reason.” 3 Debates on the Federal Constitution 588 (J. Elliot 2d ed. 1854).
Madison’s draft of what became the Fourth Amendment answered these charges by providing that the “rights of the people to be secured in their persons . . . from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause . . . or not particularly describing the places to be searched.” 1 Annals of Cong. 434–435 (1789). As ratified, the Fourth Amendment’s Warrant Clause forbids a warrant to “issue” except “upon probable cause,” and requires that it be “particula[r]” (which is to say, individualized) to “the place to be searched, and the persons or things to be seized.” And we have held that, even when a warrant is not constitutionally necessary, the Fourth Amendment’s general prohibition of “unreasonable” searches imports the same requirement of individualized suspicion. See Chandler v. Miller, 520 U. S. 305, 308 (1997) .
Although there is a “closely guarded category of constitutionally permissible suspicionless searches,” id., at 309, that has never included searches designed to serve “the normal need for law enforcement,” Skinner v. Railway Labor Executives’ Assn., 489 U. S. 602, 619 (1989) (internal quotation marks omitted). Even the common name for suspicionless searches—“special needs” searches—itself reflects that they must be justified, always, by concerns “other than crime detection.” Chandler, supra, at 313–314. We have approved random drug tests of railroad employees, yes—but only because the Government’s need to “regulat[e] the conduct of railroad employees to ensure safety” is distinct from “normal law enforcement.” Skinner, supra, at 620. So too we have approved suspicionless searches in public schools—but only because there the government acts in furtherance of its “responsibilities . . . as guardian and tutor of children entrusted to its care.” Vernonia School Dist. 47J v. Acton, 515 U. S. 646, 665 (1995) .
So while the Court is correct to note (ante, at 8–9) that there are instances in which we have permitted searches without individualized suspicion, “[i]n none of these cases . . . did we indicate approval of a [search] whose primary purpose was to detect evidence of ordinary criminal wrongdoing.” Indianapolis v. Edmond, 531 U. S. 32, 38 (2000) . That limitation is crucial. It is only when a governmental purpose aside from crime-solving is at stake that we engage in the free-form “reasonableness” inquiry that the Court indulges at length today. To put it another way, both the legitimacy of the Court’s method and the correctness of its outcome hinge entirely on the truth of a single proposition: that the primary purpose of these DNA searches is something other than simply discovering evidence of criminal wrongdoing. As I detail below, that proposition is wrong.B
The Court alludes at several points (see ante, at 11, 25) to the fact that King was an arrestee, and arrestees may be validly searched incident to their arrest. But the Court does not really rest on this principle, and for good reason: The objects of a search incident to arrest must be either (1) weapons or evidence that might easily be destroyed, or (2) evidence relevant to the crime of arrest. See Arizona v. Gant, 556 U. S. 332 –344 (2009); Thornton v. United States, 541 U. S. 615, 632 (2004) (Scalia, J., concurring in judgment). Neither is the object of the search at issue here.
The Court hastens to clarify that it does not mean to approve invasive surgery on arrestees or warrantless searches of their homes. Ante, at 25. That the Court feels the need to disclaim these consequences is as damning a criticism of its suspicionless-search regime as any I can muster. And the Court’s attempt to distinguish those hypothetical searches from this real one is unconvincing. We are told that the “privacy-related concerns” in the search of a home “are weighty enough that the search may require a warrant, notwithstanding the diminished expectations of privacy of the arrestee.” Ante, at 26. But why are the “privacy-related concerns” not also “weighty” when an intrusion into the body is at stake? (The Fourth Amendment lists “persons” first among the entities protected against unreasonable searches and seizures.) And could the police engage, without any suspicion of wrongdoing, in a “brief and . . . minimal” intrusion into the home of an arrestee—perhaps just peeking around the curtilage a bit? See ante, at 26. Obviously not.
At any rate, all this discussion is beside the point. 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).
Sensing (correctly) that it needs more, the Court elaborates at length the ways that the search here served the special purpose of “identifying” King. 1 But that seems to me quite wrong—unless what one means by “identifying” someone is “searching for evidence that he has committed crimes unrelated to the crime of his arrest.” At points the Court does appear to use “identifying” in that peculiar sense—claiming, for example, that knowing “an arrestee’s past conduct is essential to an assessment of the danger he poses.” Ante, at 15. If identifying someone means finding out what unsolved crimes he has committed, then identification is indistinguishable from the ordinary law-enforcement aims that have never been thought to justify a suspicionless search. Searching every lawfully stopped car, for example, might turn up information about unsolved crimes the driver had committed, but no one would say that such a search was aimed at “identifying” him, and
no court would hold such a search lawful. I will therefore assume that the Court means that the DNA search at issue here was useful to “identify” King in the normal sense of that word—in the sense that would identify the author of Introduction to the Principles of Morals and Legislation as Jeremy Bentham.1
The portion of the Court’s opinion that explains the identification rationale is strangely silent on the actual workings of the DNA search at issue here. To know those facts is to be instantly disabused of the notion that what happened had anything to do with identifying King.
King was arrested on April 10, 2009, on charges unrelated to the case before us. That same day, April 10, the police searched him and seized the DNA evidence at issue here. What happened next? Reading the Court’s opinion, particularly its insistence that the search was necessary to know “who [had] been arrested,” ante, at 11, one might guess that King’s DNA was swiftly processed and his identity thereby confirmed—perhaps against some master database of known DNA profiles, as is done for fingerprints. After all, was not the suspicionless search here crucial to avoid “inordinate risks for facility staff” or to “existing detainee population,” ante, at 14? Surely, then—surely—the State of Maryland got cracking on those grave risks immediately, by rushing to identify King with his DNA as soon as possible.
Nothing could be further from the truth. Maryland officials did not even begin the process of testing King’s DNA that day. Or, actually, the next day. Or the day after that. And that was for a simple reason: Maryland law forbids them to do so. A “DNA sample collected from an individual charged with a crime . . . may not be tested or placed in the statewide DNA data base system prior to the first scheduled arraignment date.” Md. Pub. Saf. Code Ann. §2–504(d)(1) (Lexis 2011) (emphasis added). And King’s first appearance in court was not until three days after his arrest. (I suspect, though, that they did not wait three days to ask his name or take his fingerprints.)
This places in a rather different light the Court’s solemn declaration that the search here was necessary so that King could be identified at “every stage of the criminal process.” Ante, at 18. I hope that the Maryland officials who read the Court’s opinion do not take it seriously. Acting on the Court’s misperception of Maryland law could lead to jail time. See Md. Pub. Saf. Code Ann. §2–512(c)–(e) (punishing by up to five years’ imprisonment anyone who obtains or tests DNA information except as provided by statute). Does the Court really believe that Maryland did not know whom it was arraigning? The Court’s response is to imagine that release on bail could take so long that the DNA results are returned in time, or perhaps that bail could be revoked if the DNA test turned up incriminating information. Ante, at 16–17. That is no answer at all. If the purpose of this Act is to assess “whether [King] should be released on bail,” ante, at 15, why would it possibly forbid the DNA testing process to begin until King was arraigned? Why would Maryland resign itself to simply hoping that the bail decision will drag out long enough that the “identification” can succeed before the arrestee is released? The truth, known to Maryland and increasingly to the reader: this search had nothing to do with establishing King’s identity.
It gets worse. King’s DNA sample was not received by the Maryland State Police’s Forensic Sciences Division until April 23, 2009—two weeks after his arrest. It sat in that office, ripening in a storage area, until the custodians got around to mailing it to a lab for testing on June 25, 2009—two months after it was received, and nearly three since King’s arrest. After it was mailed, the data from the lab tests were not available for several more weeks, until July 13, 2009, which is when the test results were entered into Maryland’s DNA database, together with information identifying the person from whom the sample was taken. Meanwhile, bail had been set, King had engaged in discovery, and he had requested a speedy trial—presumably not a trial of John Doe. It was not until August 4, 2009—four months after King’s arrest—that the forwarded sample transmitted (without identifying information) from the Maryland DNA database to the Federal Bureau of Investigation’s national database was matched with a sample taken from the scene of an unrelated crime years earlier.
A more specific description of exactly what happened at this point illustrates why, by definition, King could not have been identified by this match. The FBI’s DNA database (known as CODIS) consists of two distinct collections. FBI, CODIS and NDIS Fact Sheet, http:// www.fbi.gov/about-us/lab/codis/codis-and-ndis-fact-sheet (all Internet materials as visited May 31, 2013, and available in Clerk of Court’s case file). One of them, the one to which King’s DNA was submitted, consists of DNA samples taken from known convicts or arrestees. I will refer to this as the “Convict and Arrestee Collection.” The other collection consists of samples taken from crime scenes; I will refer to this as the “Unsolved Crimes Collection.” The Convict and Arrestee Collection stores “no names or other personal identifiers of the offenders, arrestees, or detainees.” Ibid. Rather, it contains only the DNA profile itself, the name of the agency that submitted it, the laboratory personnel who analyzed it, and an identification number for the specimen. Ibid. This is because the submitting state laboratories are expected already to know the identities of the convicts and arrestees from whom samples are taken. (And, of course, they do.)
Moreover, the CODIS system works by checking to see whether any of the samples in the Unsolved Crimes Collection match any of the samples in the Convict and Arrestee Collection. Ibid. That is sensible, if what one wants to do is solve those cold cases, but note what it requires: that the identity of the people whose DNA has been entered in the Convict and Arrestee Collection already be known. 2 If one wanted to identify someone in custody using his DNA, the logical thing to do would be to compare that DNA against the Convict and Arrestee Collection: to search, in other words, the collection that could be used (by checking back with the submitting state agency) to identify people, rather than the collection of evidence from unsolved crimes, whose perpetrators are by definition unknown. But that is not what was done. And that is because this search had nothing to do with identification.
In fact, if anything was “identified” at the moment that the DNA database returned a match, it was not King—his identity was already known. (The docket for the original criminal charges lists his full name, his race, his sex, his height, his weight, his date of birth, and his address.) Rather, what the August 4 match “identified” was the previously-taken sample from the earlier crime. That sample was genuinely mysterious to Maryland; the State knew that it had probably been left by the victim’s attacker, but nothing else. King was not identified by his association with the sample; rather, the sample was identified by its association with King. The Court effectively destroys its own “identification” theory when it acknowledges that the object of this search was “to see what [was] already known about [King].” King was who he was, and
volumes of his biography could not make him any more or any less King. No minimally competent speaker of English would say, upon noticing a known arrestee’s similarity “to a wanted poster of a previously unidentified suspect,” ante, at 13, that the arrestee had thereby been identified. It was the previously unidentified suspect who had been identified—just as, here, it was the previously unidentified rapist.2
That taking DNA samples from arrestees has nothing to do with identifying them is confirmed not just by actual practice (which the Court ignores) but by the enabling statute itself (which the Court also ignores). The Maryland Act at issue has a section helpfully entitled “Purpose of collecting and testing DNA samples.” Md. Pub. Saf. Code Ann. §2–505. (One would expect such a section to play a somewhat larger role in the Court’s analysis of the Act’s purpose—which is to say, at least some role.) That provision lists five purposes for which DNA samples may be tested. By this point, it will not surprise the reader to learn that the Court’s imagined purpose is not among them.
Instead, the law provides that DNA samples are collected and tested, as a matter of Maryland law, “as part of an official investigation into a crime.” §2–505(a)(2). (Or, as our suspicionless-search cases would put it: for ordinary law-enforcement purposes.) That is certainly how everyone has always understood the Maryland Act until today. 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., at 3).
More devastating still for the Court’s “identification” theory, the statute does enumerate two instances in which a DNA sample may be tested for the purpose of identification: “to help identify human remains,” §2–505(a)(3) (emphasis added), and “to help identify missing individuals,” §2–505(a)(4) (emphasis added). No mention of identifying arrestees. Inclusio unius est exclusio alterius. And note again that Maryland forbids using DNA records “for any purposes other than those specified”—it is actually a crime to do so. §2–505(b)(2).
The Maryland regulations implementing the Act confirm what is now monotonously obvious: These DNA searches have nothing to do with identification. For example, if someone is arrested and law enforcement determines that “a convicted offender Statewide DNA Data Base sample already exists” for that arrestee, “the agency is not required to obtain a new sample.” Code of Md. Regs., tit. 29, §05.01.04(B)(4) (2011). But how could the State know if an arrestee has already had his DNA sample collected, if the point of the sample is to identify who he is? Of course, if the DNA sample is instead taken in order to investigate crimes, this restriction makes perfect sense: Having previously placed an identified someone’s DNA on file to check against available crime-scene evidence, there is no sense in going to the expense of taking a new sample. Maryland’s regulations further require that the “individual collecting a sample . . . verify the identity of the individual from whom a sample is taken by name and, if applicable, State identification (SID) number.” §05.01.04(K). (But how?) And after the sample is taken, it continues to be identified by the individual’s name, fingerprints, etc., see §05.01.07(B)—rather than (as the Court believes) being used to identify individuals. See §05.01.07(B)(2) (“Records and specimen information shall be identified by . . . [the] [n]ame of the donor” (emphasis added)).
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.II
The Court also attempts to bolster its identification theory with a series of inapposite analogies. See ante, at 18–23.
Is not taking DNA samples the same, asks the Court, as taking a person’s photograph? No—because that is not a Fourth Amendment search at all. It does not involve a physical intrusion onto the person, see Florida v. Jardines, 569 U. S. 1 , ___ (2013) (slip op., at 3), and we have never held that merely taking a person’s photograph invades any recognized “expectation of privacy,” see Katz v. United States, 389 U. S. 347 (1967) . Thus, it is unsurprising that the cases the Court cites as authorizing photo-taking do not even mention the Fourth Amendment. See State ex rel. Bruns v. Clausmier, 154 Ind. 599, 57 N. E. 541 (1900) (libel), Shaffer v. United States, 24 App. D. C. 417 (1904) ( Fifth Amendment privilege against self-incrimination).
But is not the practice of DNA searches, the Court asks, the same as taking “Bertillon” measurements—noting an arrestee’s height, shoe size, and so on, on the back of a photograph? No, because that system was not, in the ordinary case, used to solve unsolved crimes. It is possible, I suppose, to imagine situations in which such measurements might be useful to generate leads. (If witnesses described a very tall burglar, all the “tall man” cards could then be pulled.) But the obvious primary purpose of such measurements, as the Court’s description of them makes clear, was to verify that, for example, the person arrested today is the same person that was arrested a year ago. Which is to say, Bertillon measurements were actually used as a system of identification, and drew their primary usefulness from that task. 3
It is on the fingerprinting of arrestees, however, that the Court relies most heavily. Ante, at 20–23. The Court does not actually say whether it believes that taking a person’s fingerprints is a Fourth Amendment search, and our cases provide no ready answer to that question. Even assuming so, however, law enforcement’s post-arrest use of fingerprints could not be more different from its post-arrest use of DNA. Fingerprints of arrestees are taken primarily to identify them (though that process sometimes solves
crimes); the DNA of arrestees is taken to solve crimes (and nothing else). Contrast CODIS, the FBI’s nationwide DNA database, with IAFIS, the FBI’s Integrated Automated Fingerprint Identification System. See FBI, Integrated Automated Fingerprint Identification System, http://www.fbi.gov/about-us/cjis/fingerprints_biometrics/iafis/iafis (hereinafter IAFIS).
The “average response time for an electronic criminal fingerprint submission is about 27 minutes.” IAFIS.
DNA analysis can take months—far too long to be useful for identifying someone.
IAFIS includes detailed identification information, including “criminal histories; mug shots; scars and tattoo photos; physical characteristics like height, weight, and hair and eye color.”
CODIS contains “[n]o names or other personal identifiers of the offenders, arrestees, or detainees.” See CODIS and NDIS Fact Sheet.
“Latent prints” recovered from crime scenes are not systematically compared against the database of known fingerprints, since that requires further forensic work. 4
The entire point of the DNA database is to check crime scene evidence against the profiles of arrestees and convicts as they come in.
The Court asserts that the taking of fingerprints was “constitutional for generations prior to the introduction” of the FBI’s rapid computer-matching system. Ante, at 22. This bold statement is bereft of citation to authority because there is none for it. The “great expansion in fingerprinting came before the modern era of Fourth Amendment jurisprudence,” and so we were never asked to decide the legitimacy of the practice. United States v. Kincade, 379 F. 3d 813, 874 (CA9 2004) (Kozinski, J., dissenting). As fingerprint databases expanded from convicted criminals, to arrestees, to civil servants, to immigrants, to everyone with a driver’s license, Americans simply “became accustomed to having our fingerprints on file in some government database.” Ibid. But it is wrong to suggest that this was uncontroversial at the time, or that this Court blessed universal fingerprinting for “generations” before it was possible to use it effectively for identification.
The Court also assures us that “the delay in processing DNA from arrestees is being reduced to a substantial degree by rapid technical advances.” Ante, at 22. The idea, presumably, is that the snail’s pace in this case is atypical, so that DNA is now readily usable for identification. The Court’s proof, however, is nothing but a pair of press releases—each of which turns out to undercut this argument. We learn in them that reductions in backlog have enabled Ohio and Louisiana crime labs to analyze a submitted DNA sample in twenty days. 5 But that is still longer than the eighteen days that Maryland needed to analyze King’s sample, once it worked its way through the State’s labyrinthine bureaucracy. What this illustrates is that these times do not take into account the many other sources of delay. So if the Court means to suggest that Maryland is unusual, that may be right—it may qualify in this context as a paragon of efficiency. (Indeed, the Governor of Maryland was hailing the elimination of that State’s backlog more than five years ago. See Wheeler, O’Malley Wants to Expand DNA Testing, Baltimore Sun, Jan. 11, 2008, p. 5B.) Meanwhile, the Court’s holding will result in the dumping of a large number of arrestee samples—many from minor offenders—onto an already overburdened system: Nearly one-third of Americans will be arrested for some offense by age 23. See Brame, Turner, Paternoster, & Bushway, Cumulative Prevalence of Arrest From Ages 8 to 23 in a National Sample, 129 Pediatrics 21 (2011).
The Court also accepts uncritically the Government’s representation at oral argument that it is developing devices that will be able to test DNA in mere minutes. At most, this demonstrates that it may one day be possible to design a program that uses DNA for a purpose other than crime-solving—not that Maryland has in fact designed such a program today. And that is the main point, which the Court’s discussion of the brave new world of instant DNA analysis should not obscure. The issue before us is not whether DNA can some day be used for identification; nor even whether it can today be used for identification; but whether it was used for identification here.
Today, it can fairly be said that fingerprints really are used to identify people—so well, in fact, that there would
be no need for the expense of a separate, wholly redundant DNA confirmation of the same information. What DNA adds—what makes it a valuable weapon in the law-enforcement arsenal—is the ability to solve unsolved crimes, by matching old crime-scene evidence against the profiles of people whose identities are already known. That is what was going on when King’s DNA was taken, and we should not disguise the fact. Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches. The Fourth Amendment must prevail.* * *
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 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.
The most regrettable aspect of the suspicionless search that occurred here is that it proved to be quite unnecessary. All parties concede that it would have been entirely permissible, as far as the Fourth Amendment is concerned, for Maryland to take a sample of King’s DNA as a consequence of his conviction for second-degree assault. So the ironic result of the Court’s error is this: The only arrestees to whom the outcome here will ever make a difference are those who have been acquitted of the crime of arrest (so that their DNA could not have been taken upon conviction). In other words, this Act manages to burden uniquely the sole group for whom the Fourth Amendment’s protections ought to be most jealously guarded: people who are innocent of the State’s accusations.
Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the “identity” of the flying public), applies for a driver’s license, or attends a public school. Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.
I therefore dissent, and hope that today’s incursion upon the Fourth Amendment, like an earlier one, 6 will some day be repudiated.
1 The Court’s insistence (ante, at 25) that our special-needs cases “do not have a direct bearing on the issues presented in this case” is perplexing. Why spill so much ink on the special need of identification if a special need is not required? Why not just come out and say that any suspicionless search of an arrestee is allowed if it will be useful to solve crimes? The Court does not say that because most Members of the Court do not believe it. So whatever the Court’s major premise—the opinion does not really contain what you would call a rule of decision—the minor premise is “this search was used to identify King.” The incorrectness of that minor premise will therefore suffice to demonstrate the error in the Court’s result.
2 By the way, this procedure has nothing to do with exonerating the wrongfully convicted, as the Court soothingly promises. See ante, at 17. The FBI CODIS database includes DNA from unsolved crimes. I know of no indication (and the Court cites none) that it also includes DNA from all—or even any—crimes whose perpetrators have already been convicted.
3 Puzzlingly, the Court’s discussion of photography and Bertillon measurements repeatedly cites state cases (such as Clausmier) that were decided before the Fourth Amendment was held to be applicable to the States. See Wolf v. Colorado, 338 U. S. 25 (1949) ; Mapp v. Ohio, 367 U. S. 643 (1961) . Why the Court believes them relevant to the meaning of that Amendment is therefore something of a mystery.
4 See, e.g., FBI, Privacy Impact Assessment: Integrated Automated Fingerprint Identification System (IAFIS)/Next Generation Identification (NGI) Repository for Individuals of Special Concern (RISC),http://www.fbi.gov/foia/privacy-impact-assessments/iafis-ngi-risc (searches of the “Unsolved Latent File” may “take considerably more time”).
5 See Attorney General DeWine Announces Significant Drop inDNA Turnaround Time (Jan. 4, 2013), http://ohioattorneygeneral.gov/Media/News-Releases/January-2013/Attorney-General-DeWine-Announces-Significant-Drop; Gov. Jindal Announces Elimination of DNA Backlog(Nov. 17, 2011), http://www.gov.state.la.us/index.cfm?md=newsroom&tmp=detail&articleID=3102.
6 Compare, New York v. Belton, 453 U. S. 454 (1981) (suspicionless search of a car permitted upon arrest of the driver), with Arizona v. Gant, 556 U. S. 332 (2009) (on second thought, no).
ORAL ARGUMENT OF KATHERINE WINFREE ON BEHALF OF THE PETITIONER
Chief Justice John G. Roberts: We will hear argument next this morning in Case 12-207, Maryland v. King.
Katherine Winfree: 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.
Justice Antonin Scalia: Well, that's really good.
I'll bet you if you conducted a lot of unreasonable searches and seizures, you'd get more convictions, too.
That proves absolutely nothing.
Katherine Winfree: Well, I think, Justice Scalia, it does, in fact, point out the fact that -- that the statute is working, and in the State's view the act is constitutional.
Justice Antonin Scalia: So that's its purpose, to enable you to identify future criminals, the perpetrators of future crimes?
That's the purpose of it?
I thought that that wasn't the purpose set forth in the -- in the statute.
Katherine Winfree: No, not -- not just to identify people.
The purpose of the statute is to enable the State to identify perpetrators of serious crimes and -- and to use the information to make bail determinations for people who are validly in their custody.
Justice Sonia Sotomayor: And I'm having a hard time understanding the bail argument.
Because in my time, most bail decisions were made at the time of arrest.
And here the arrest was in April and the results didn't come up until August.
Katherine Winfree: That's true, Justice Sotomayor.
Justice Sonia Sotomayor: And yet, he was detained anyway, correct?
Katherine Winfree: He was detained anyway.
Justice Sonia Sotomayor: And -- and there might be a case where someone's gotten out, but it would be the rare case.
Katherine Winfree: Well--
Justice Sonia Sotomayor: You don't use it routinely for the bail determination.
Katherine Winfree: --At this point, you're absolutely correct, Justice Sotomayor.
We don't use it routinely for a couple of reasons.
For one, as in Mr. King's case, there has been in the past a more substantial delay in getting those results back.
Our -- our lab now is getting results between 11 and 17 days.
Now, that, of course--
Justice Sonia Sotomayor: Well, it doesn't include the time to collect the sample, send it to you or the time to do the match.
It's just to do the genome rapid, correct?
Katherine Winfree: --No, that's the whole -- that's the whole process, Justice Sotomayor.
It's for getting the sample and getting it into the system, the DNA profile and getting the match back.
That's what we're being told.
It's from 11 to 17 days.
Now, of course, that wouldn't be timely for that first bail determination, but the State under Maryland's procedure certainly has the ability to go back to -- to the judge and ask that sentence -- or that -- I'm sorry -- that bail determination to be modified.
And in point of fact, though, we don't have any particular statistics in Maryland.
In California's amicus brief, which was joined by the 49 other States and D.C. and Puerto Rico, they actually do cite two particular examples where -- where two people, Castillo and Shamblin, were arrested.
One was arrested on a credit card charge and another on a drug charge.
Mr. Castillo was actually released on his -- on OR and when his sample was matched, it came back to a -- an unsolved rape and sodomy and his OR was revoked.
In Mr. Shamblin's case, he was granted diversion, because his drug charge is a relatively low level offense and when the match came back, it -- it tied him to a rape and murder.
His diversion was revoked, and he's currently pending charge -- pending trial on both of those charges.
Chief Justice John G. Roberts: Your procedure limits the collection to certain violent offenses, right?
Katherine Winfree: It does, Mr. Chief Justice.
Chief Justice John G. Roberts: But your argument would not be so limited, would it?
Under your theory, there's no reason you couldn't undertake this procedure with respect to anybody pulled over for a traffic violation?
Katherine Winfree: Well, in Maryland, it's not just the fact that we have those -- those violent crimes and burglaries.
Actually, we don't collect DNA unless someone is physically taken into custody.
Now, with respect to--
Chief Justice John G. Roberts: Well, I understand.
But there's no reason you couldn't, right?
I gather it's not that hard.
Police officers who give Breathalyzer tests, they can also take a Q-tip or whatever and get a DNA sample, right?
Katherine Winfree: --Well, what I would say to that is that with respect to a traffic stop, this Court said in Berkheimer that a motorist has an expectation that a traffic stop is going to be relatively brief and temporary, that he or she will be given a citation and sent on their way.
Chief Justice John G. Roberts: Well, how long does it take to -- to undergo the procedure?
You say, ah and then--
Katherine Winfree: It doesn't take long, but what I was suggesting is that because of the nature of a traffic stop, this Court might well decide that a motorist has a reasonable expectation of privacy not to--
Justice Ruth Bader Ginsburg: How about a Terry stop?
A Terry stop?
Katherine Winfree: --In a Terry -- well, this Court, I guess, we would look at two -- one case in particular, this Court's case -- decision in Hayes v. Florida.
That involved a defendant who was taken into custody, so his -- he was not arrested, but taken into custody for -- to get his fingerprints, and this Court held that that was not -- that was not constitutional.
But the Court further said that there could be a circumstance in a Terry stop if the officer had reasonable suspicion to believe that the individual was--
Justice Ruth Bader Ginsburg: But these -- these are all cases, I mean, the dominant use is to solve what they call cold -- cold cases, and you gave one example.
This case is another.
A rape committed 6 years before, right?
And there was no reasonable suspicion, there was no nothing, right?
And the suspicion comes up only because the DNA sample comes back as a match.
So is it the -- this is a -- a very reliable tool, but it's not based on any kind of suspicion of the individual who's being subjected to it, right?
Katherine Winfree: --That's correct, Your Honor.
And if I could go back to your question about the Terry stop.
The cornerstone of our -- and I do believe that this Court could -- could -- who knows how this Court would come out in that situation, but I think in terms of our argument, the corner--
Justice Antonin Scalia: I do.
Katherine Winfree: --Well, happily we don't have to decide that one today.
But what I -- the cornerstone of our argument is that when an individual is taken into custody, an individual is arrested on a probable cause, on a probable cause arrest, that person by virtue of being in that class of individuals whose conduct has led the police to arrest him on -- based on probable cause surrenders a substantial amount of liberty and privacy.
Justice Elena Kagan: But, Ms. Winfree, that can't be quite right, can it?
I mean, such a person, assume you've been arrested for something, the State doesn't have the right to go search your house for evidence of unrelated crimes; isn't -- isn't that correct?
Katherine Winfree: That's correct, Justice Kagan.
Justice Elena Kagan: It doesn't have the right to search your car for evidence of unrelated crimes.
Katherine Winfree: That's correct.
Justice Elena Kagan: Just because you've been arrested doesn't mean that you lose the privacy expectations and things you have that aren't related to the offense that you've been arrested for.
Katherine Winfree: That's correct.
But what we're seizing here is not evidence of crime, what it is, is information related to that person's DNA profile.
Those 26 numbers--
Justice Elena Kagan: Well, and if there were a real identification purpose for this, then I understand that argument.
But if it's just to solve cold cases, which is the way you started, then it's just like searching your house, to see what's in your house that could help to solve a cold case.
Katherine Winfree: --Well, I would say there's a very real distinction between the police generally rummaging in your home to look for evidence that might relate to your personal papers and your thoughts.
It's a very real difference there than swabbing the inside of an arrestee's cheek to determine what that person's CODIS DNA profile is.
It's looking only at 26 numbers that tell us nothing more about that individual.
Justice Elena Kagan: Well, but if that's what you're basing it on, then you're not basing it on an arrestee.
I mean, then the Chief Justice is right, it could be any arrestee, no matter how minor the offense.
It could be just any old person in the street.
Why don't we do this for everybody who comes in for a driver's license because it's very effective?
Katherine Winfree: I think the difference there is these people are lawfully in custody having been arrested based on probable cause.
Justice Sonia Sotomayor: All right.
So now, I see two lines of cases, okay?
The Fourth Amendment, which says you can't do a search without a warrant and probable cause.
And most of your brief argument was based on Samson.
As I read Samson, it was the special relationship between the parolee or the probationary person, that line of cases, and the assumption being that they're out in the world, I think, by the largesse of the State.
So a State has a right to search their home just as it would their cell essentially.
Why is that true for an arrestee?
What about -- what creates this special relationship that permits you to intrude, search their home, search their car, search their person, to solve other cases?
Katherine Winfree: --Well--
Justice Sonia Sotomayor: Because you're going to have to tell me why searching their person is different than searching their home or car.
Katherine Winfree: --Well, if I could start at the back end of your question, Justice Sotomayor, we're not suggesting and this statute doesn't permit the State or police to search an arrestee's home or his person beyond -- beyond simply swabbing the cheek for the DNA.
Now, in terms of the -- the individual's relationship to the State, an arrestee is not that dissimilar.
There is obviously a range of -- of relationships with the State.
Those of us who are out on the street, ordinary citizens are at one end, people who are imprisoned upon conviction are at the other end.
And -- but in terms of when an arrestee is physically in custody, he has a reduced expectation of privacy and that's what makes, in our view, it makes this case more similar.
To be sure, this is not Samson, there's no -- there's no one case in this Court's jurisprudence that's exactly like this.
Justice Sonia Sotomayor: There's no other case but Samson in that line that permits searches on this balancing.
Katherine Winfree: Well--
Justice Sonia Sotomayor: So what I want to know is what's the legal theory now?
How far do we let the State go each time it has some form of custody over you in schools, in workplaces, wherever else the State has control over your person?
Katherine Winfree: --Well, those are different situations, Justice Sotomayor.
We're not suggesting that the police could swab a student for -- for a DNA sample.
We're talking about a special class of people who by their conduct have -- have been arrested based on probable cause.
Justice Stephen G. Breyer: Can I ask you a particular specific quick question?
Katherine Winfree: Yes, Justice Breyer.
Justice Stephen G. Breyer: As I read this, this concerns people arrested for a felony, a crime of violence, attempted crime of violence, burglary or attempted burglary.
Katherine Winfree: Yes, Justice Breyer.
Justice Stephen G. Breyer: And so we're not talking about people who are driving cars and traffic stops and all these other things.
Katherine Winfree: That's absolutely correct.
Justice Stephen G. Breyer: The only thing we have to decide is whether a person, where there's probable cause to arrest a person for those four crimes, their fingerprints are all taken.
Katherine Winfree: Yes.
Justice Stephen G. Breyer: And whether they also can take DNA, that's the issue.
Katherine Winfree: That's correct, Justice Breyer.
Justice Stephen G. Breyer: Okay.
Katherine Winfree: If there are no further questions, I'll reserve the remainder of my time for rebuttal.
Chief Justice John G. Roberts: --Thank you, counsel.
ORAL ARGUMENT OF MICHAEL DREEBEN, FOR UNITED STATES, AS AMICUS CURIAE, SUPPORTING THE PETITIONER
Michael R. Dreeben: Thank you, Mr. Chief Justice, and may it please the Court:
Arrestees are in a unique category, they are on the gateway into the criminal justice system.
They are no longer like free citizens who are wandering around on the streets retaining full impact Fourth Amendment rights.
The arrest itself substantially reduces the individual's expectation of privacy.
The arrestee can be searched and sent to arrest.
His property, whether or not connected with a crime, can be inventoried.
When he's taken into the jail situation, he can be subjected to a visual strip search.
If he's admitted to the population of the jail, he'll be given a TB test and a thorough medical screen.
These are not individuals who are like free citizens, and they are not like free citizens in another significant respect.
Arrestees are rarely arrested for the first time.
They tend to be repeat customers in the criminal justice system.
Up to 70 percent of arrestees have been previously arrested.
Chief Justice John G. Roberts: Yes, but that doesn't mean, for example, that you can go into their house without a warrant.
Michael R. Dreeben: That is certainly correct, Chief Justice Roberts, and the reason for that is going into the house will expose a substantial number of highly private things to the view of the State.
Taking a DNA sample is not of that character.
It is far more like taking a fingerprint.
Chief Justice John G. Roberts: Well, this is a factual question.
I understand your emphasis on the fact that it only looks at 26 loci and they are supposedly not connected in any way with other information.
Does the sample that you retain -- can it be evaluated more broadly?
In other words, saying, well, the law says we only look at these 13, but we have this saliva, we want to look at all sorts of other stuff.
Michael R. Dreeben: Well, by law, the government, under CODIS, and the States cannot look at anything except identification information.
The sample contains the entire genome.
The sample cannot be looked at as a matter of law.
And I think it's critical to this case to -- for the Court to understand that if the Court concludes, as is probably correct, that the individual will retain a reasonable expectation of privacy in the genomic material that does not reveal identity, then additional Fourth Amendment scrutiny would be required before the government could make use of the rest of the genome.
Here, it's making use of an identity indicator that is highly similar to fingerprints with one significant difference: It is far more accurate.
When Respondent committed his rape--
Justice Elena Kagan: Well, Mr. Dreeben, is it really?
Because if this were like fingerprints, I think that you would have a quite good case.
But as I've been reading about this, it seems as though the technology is not the same as the fingerprint technology; and because the technology is different, it is used differently.
Fingerprints you go in, you put in a fingerprint, there is identifying information that comes back to you in 5 minutes, right?
This, you put in something, and Ms. Winfree said was 11 to 17 days, in this case it's four months.
And it doesn't seem to be used because the technology doesn't allow it to be used as the kind of routine identifier that fingerprints does.
So am I wrong about that?
Michael R. Dreeben: --You are not wrong, Justice Kagan, but the future is very close to where there will be rapid DNA analyzers that are devices that can analyze and produce the identification material in the DNA within 90 minutes.
And the design of this program is to put them at the booking station so that DNA can be taken and within 90 minutes that information is known.
In that circumstance, it will be highly relevant to the immediate release/custody decision, which it already can play a role in--
Justice Stephen G. Breyer: That part surprised us.
Then do you think the States are wrong?
I mean, they all say in their brief, in footnote 10: DNA identification database samples have been processed in as few as 2 days in California, and although around 30 days has been average.
So I guess the technology is there now to process this in 2 days, not 9 days.
Michael R. Dreeben: --Yes, Justice Breyer.
Yes, Justice Breyer, there is no question it can be done quickly because of the volumes.
I'm not contending that today--
Justice Stephen G. Breyer: In the case of -- do you have any information -- are there instances with fingerprints where returns have not come back for as long as 30 days, or are they all, or almost all, done in 5 minutes?
Michael R. Dreeben: --Fingerprint histories tend to come back quickly except if the prints are unrecognizable or unreadable.
It is very significant, I think, that fingerprints are used for crime solution as well as--
Justice Samuel Alito: Before you get on to -- before you go to that, fingerprints have been taken I believe from people who are booked for offenses for many, many, many years; isn't that right?
Michael R. Dreeben: --Correct.
Justice Samuel Alito: When did the FBI's AFIS system for comparing fingerprints by computer begin?
Michael R. Dreeben: That I cannot tell you, Justice Alito.
It is now in use.
It is in use both for identification and, contrary to the representation of Respondent in his brief, fingerprints are run against the latent fingerprint database which reflects fingerprints from crime scenes.
It returns about 50,000 hits a year.
Justice Samuel Alito: Well, the question that I had was this: If the constitutionality of taking fingerprints is dependent on the speed with which a fingerprint comparison can be done now by a computerized system, would that mean that the taking of fingerprints was unconstitutional back in, let's say, the '50s when that wasn't possible and fingerprints could only be compared manually?
Michael R. Dreeben: No, I certainly do not think that it would have been unconstitutional at any point because the State has a compelling interest in taking biometric identification information from the individual that is arrested and using it for a myriad of purposes: Determining criminal history, attempting to solve crimes, funneling that information back--
Justice Elena Kagan: Mr. Dreeben, could I understand how this works exactly?
The swab is taken, and if I -- there is a database which is known offenders and there is a database which is kind of crime scene DNA; is that correct?
Michael R. Dreeben: --That is correct.
Justice Elena Kagan: And when the swab is taken and it's put into the system, you check that against the crime scene DNA database; is that correct?
Michael R. Dreeben: That is the routine method under CODIS, yes.
Justice Elena Kagan: Do you check it -- does Maryland check it against the known offenders database?
Michael R. Dreeben: I do not know precisely whether Maryland does that.
The Federal system does not routinely do that.
Upgrades to the software system will permit it to do that, and many States do it.
Justice Elena Kagan: Because that suggests that right now it's functioning as let's solve some crimes, which is a good thing, you know, that we should solve some crimes, but not as an identification device.
Because here if it were an identification device you would be comparing it to the known offender database, not to the cold case database.
Michael R. Dreeben: I agree with that and I think that in California the brief for the States indicates that many States do that and California itself uses it to resolve discrepancies in identity when a fingerprint comes back and it returns to multiple names, or the fingerprint is not good enough to permit an identification.
California cross-checks, so it does perform an identification function.
And as I suggested, with the advent of rapid DNA, it's not that it is unconstitutional before rapid DNA, but rapid DNA will permit DNA identification to replace fingerprint identification because it's far more accurate and it has far more utility in the secondary purpose of fingerprints, which is to match them to latent prints and solve crimes.
And this is highly relevant to both of the major purposes for taking DNA, crime solution and facilitating the release/custody determination.
Any judge who is looking at a bail case would like to know -- I have a guy who has been arrested on grand theft auto.
He has no criminal history.
Should I release him back on the street?
Well, it's a first offense, he has family ties; maybe yes.
If that judge--
Justice Ruth Bader Ginsburg: Mr. Dreeben, can you explain how it works, mechanically?
Because I understand, at least maybe this is just the Maryland statute, but if you can't use the swab that is taken from the arrestee when he is arrested -- it can't be used, it's inadmissible -- then you do it again.
You do it -- but what it does supply is probable cause, because you found out that he was a perpetrator of a rape 6 years ago.
Then you have probable cause and you get a warrant and do it again.
What -- what is the reason for the doubling -- the doing it twice?
Michael R. Dreeben: --That serves an enhanced reliability function to ensure there is no mix-up and it provides an evidentiary function of permitting the new DNA match to be admitted in a sample that is taken under the warrant.
It has nothing to do with undercutting the value of taking DNA on the spot because, I was indicating, the judge who would know this defendant's DNA came back and returned a cold case hit to a murder-rape, he's not such a good risk to be put back on the street.
Chief Justice John G. Roberts: That argument only makes sense if we're in your future world where it's 90 minutes, right?
Michael R. Dreeben: No, Mr. Chief Justice.
Chief Justice John G. Roberts: It depends on, if we have a situation such as Maryland says 11 to 17 days, the footnote, whatever, the amicus brief says something else, but you are not going to put off the bail hearing for 2 weeks.
Michael R. Dreeben: No, but bail can be revoked and the government will go back in and make a motion to revoke bail if new information emerges that indicates this individual is a danger to the community.
And the whole point of this is we are talking about arrestees, somebody who has taken a step into the gateway of the criminal justice system.
The criminal justice system at that point has to deal with this person.
It has to know who is this person, which includes what has this person done so we know whether to release him and, if we keep him, in what situations do we keep him.
Justice Sonia Sotomayor: That doesn't explain why you can't go into his home.
Michael R. Dreeben: Yes, it does, Justice--
Justice Sonia Sotomayor: I mean, you know, if the whole issue is how dangerous is he, you should be able to go into his home, into his car, to any place he has visited, to just sort of run rampant in his life to make sure that he is not a bail risk.
Michael R. Dreeben: --We are not asking for that, and I don't think that the Court's balancing test suggests that these two cases are equivalent.
My first submission is that because we are talking about--
Justice Sonia Sotomayor: But you are, because what you are saying really is law enforcement need alone, without any suspicion whatsoever of another crime, permits you to take this information from the person and use it.
Michael R. Dreeben: --I'm saying that because an arrestee is someone whose conduct has given rise to probable cause that he committed a crime, he's in a different position from ordinary citizens.
And this Court does, as it did in Samson and in Knights, balance the expectations of privacy against the governmental interests.
And here, the expectation of privacy is minimal in the cheek swab, and the information obtained.
Chief Justice John G. Roberts: According to Samson and Knights, you're dealing with people who are still subject to the -- a criminal sentence.
Michael R. Dreeben: --Well, they're differently situated in that respect, Mr. Chief Justice.
And I will acknowledge that there is no case on my side that decides the case this way.
And there's no case that -- on Respondent's side that decides the case for him.
The Court I think has treated the category of what he calls special needs cases -- what the Court has called special needs cases -- as dealing with suspicionless or warrantless intrusions on ordinary citizens.
Justice Elena Kagan: But the typical special needs case is one in which we say there's no law enforcement interest, that there's an interest other than the interest in solving crime.
Michael R. Dreeben: Well, we have a strong law enforcement interest with respect to people who are arrested based on probable cause.
They are no longer similarly situated to other people.
They can be deprived of their liberty.
Their property can be searched upon entry into the jail.
Justice Elena Kagan: When you started, Mr. Dreeben, you started by saying, you know, they have a reduced expectation of privacy and we have important interests.
You went right into free-form balancing.
That's typically not the way we do it.
If we said to you, look, you know, the way we do it is, you need a warrant, and if you -- there is some exceptions, then you have to put yourself into a well-recognized exception where you can search without a warrant.
And that's especially the case when there is no suspicion whatsoever.
How would you do it?
How would you do it short of free-form balancing?
What exception are you a part of?
Michael R. Dreeben: We're not asking for a new exception.
What we're asking for is for the Court to apply what it called
"the key principle of the Fourth Amendment. "
It said that in Bell v. Wolfish.
It said that in Martinez--
Justice Sonia Sotomayor: The key principle is the Fourth Amendment--
Justice Anthony Kennedy: Is it -- is it your position that this is a search incident to an arrest?
Michael R. Dreeben: --No, Justice Kennedy, it's not.
That stands on its own doctrinal footing.
But we do think the fact that--
Justice Anthony Kennedy: Why isn't this is a search incident to an arrest?
Michael R. Dreeben: --It is certainly a search--
Justice Anthony Kennedy: Just -- just like taking the pockets out and -- and seeing what's in the person's overcoat and so forth is a search incident to an arrest.
Michael R. Dreeben: --You can certainly look at it as an incident of the arrest.
The Court's search incident to arrest cases have been bottomed on different justifications than the ones that we're advancing here.
I'm entirely happy if you, Justice Kennedy, view it as an incident to arrest in that sense, because I think that it is appropriately viewed as something that the government has a compelling interest in doing once a person has been arrested, and that is, knowing who that person is, which includes knowing what the person has done.
And DNA does that in a far more powerful way than fingerprints have done--
Justice Antonin Scalia: Yes, but our -- our search incident to arrest cases don't allow that.
That's sort of the point.
They -- they allow you to search for firearms, they allow you to search for material that relates to the crime for which the person has been arrested.
But you can't search the person for other stuff.
Michael R. Dreeben: --That's inaccurate, Justice Scalia.
A search incident to arrest allows a full search of the person for any destructible evidence, because a person who has been arrested has a tremendous incentive to destroy evidence.
And I just want to come back--
Justice Antonin Scalia: Evidence relating to matters other than the crime of arrest?
Michael R. Dreeben: --Yes, on -- on the individual's person.
The crime of arrest limitation appears only in Arizona v. Gant, and it relates to cars.
But I think it's critical to note that Respondent has conceded that an individual can have their DNA taken once convicted.
Suppose we have the same individual who's picked up on grand theft auto, and that individual knows that if he's convicted of grand theft auto, he is going to have his DNA taken.
But he also knows that he's committed a string of rapes.
And if the government cannot take his DNA now, it will not connect him -- may I complete the sentence -- it will not connect him to those rapes.
So he has a tremendous incentive to flee.
The government has a tremendous need for this information at the time of arrest to solve crimes, exonerate the innocent, and give closure to victims.
Chief Justice John G. Roberts: Thank you, Mr. Dreeben.
ORAL ARGUMENT OF KANNON K. SHANMUGAM ON BEHALF OF THE RESPONDENT
Kannon K. Shanmugam: Thank you, Mr. Chief Justice, and may it please the Court:
Maryland searched my client without a warrant in order to investigate crimes for which there was no suspicion.
It is settled law that warrantless, suspicionless searches are presumptively unconstitutional.
The State cites no--
Justice Anthony Kennedy: He was held -- he was held with probable cause--
Kannon K. Shanmugam: --That is correct.
Justice Anthony Kennedy: --and his -- and his custody was restrained.
He was in a police station.
Kannon K. Shanmugam: That is also correct.
Justice Anthony Kennedy: Were handcuffs put on him during the transport process, do you know?
Kannon K. Shanmugam: I don't know that the record indicates that.
Justice Anthony Kennedy: But they -- they could -- they could have been.
Kannon K. Shanmugam: Yes.
Justice Anthony Kennedy: So his liberties were constrained in all of those respects.
He would have to take off most of his clothes, subject to a patdown search.
Kannon K. Shanmugam: We're--
Justice Anthony Kennedy: They could look -- they could look in his -- in his briefcase.
Kannon K. Shanmugam: --Yes.
Just to be clear, Justice Kennedy, we're not disputing the proposition that certain intrusions on privacy are permissible as to arrestees, but where we fundamentally disagree with the State and the Federal Government is with regard to the argument that this Court should take the rationale of Samson v. California, and essentially extend that rationale to the point of arrest.
Justice Anthony Kennedy: I think -- I think there is some merit to your argument in that regard.
In Samson, he was a parolee, and he actually, as I recall, signed a -- a consent form as part of the probation.
Kannon K. Shanmugam: --That is correct.
An agreed part of the condition of parole.
That is -- that is correct.
Chief Justice John G. Roberts: Well, that is right.
But I'm curious as to why your position is that -- let's say he served his time.
He's no longer subject to the criminal justice system.
He's not on parole, he's not a probationer.
You concede that the DNA evidence can be taken from him, correct?
Kannon K. Shanmugam: I would concede, Mr. Chief Justice, that it -- that it could be taken at least while he is still under the supervision of the State, because after all, both Samson and Knights were cases in which the individual was still under State supervision.
That is to say, we're not arguing that at the point of conviction, that the resulting lessened expectation of privacy extends in perpetuity as, say, a firearm or felon disability does.
But what we are arguing is that -- to look at this Court's cases in Samson and Knights, they both centrally depended on the proposition that it is the fact of conviction that deprives an individual of the full protections of the Fourth Amendment.
Chief Justice John G. Roberts: What is the pertinence of the fact -- I mean, this is not something that people are or can keep private.
I mean, if you're in the interview room or something, you take a drink of water, you leave, you're done.
I mean, they can examine the DNA from that drink of water.
Kannon K. Shanmugam: Well, Mr. Chief Justice--
Chief Justice John G. Roberts: Doesn't that compromise the -- the expectation of privacy?
Kannon K. Shanmugam: --I think it's an open question as to whether or not there would be a search when DNA is collected from cells that could be said to have been involuntarily or voluntarily abandoned.
And to the extent that there's an argument that there would still be a search, it would be based on this Court's reasoning in Skinner, where the Court suggested that the subsequent analysis of a urine sample would constitute a further invasion of the test of--
Chief Justice John G. Roberts: No, it's not a--
Kannon K. Shanmugam: --the privacy interest.
Chief Justice John G. Roberts: --My question was not trying to get at whether it's a search or not, it's whether -- it's getting at the reasonableness of the expectation of privacy that the -- your DNA is protected from examination when it's left wherever you happened to have been.
Kannon K. Shanmugam: I would say two things about the privacy interests at stake here.
First of all, there is an intrusion into the body, and that is what triggers the applicability of the Fourth Amendment here to be sure.
But it is also a relevant intrusion for Fourth Amendment purposes.
But secondly, and perhaps more importantly, there is a legitimate expectation of privacy in the contents of an individual's DNA.
And to the extent that this Court were to engage in balancing, we certainly think that interest is the--
Chief Justice John G. Roberts: Well, I mean, isn't that part of the -- isn't that part of the question, whether there is a legitimate expectation of privacy in a person's DNA?
Kannon K. Shanmugam: --Yes, and we think that the answer to that question is yes, that an individual has--
Chief Justice John G. Roberts: Well, I know, but you're simply just -- you're -- I guess that's begging the question.
And -- but I'd just be repeating my question -- how legitimate is it to you to expect privacy in something that the police can access without you even knowing about it, without any voluntary or involuntary -- if you take a drink of water, if you leave behind a cigarette butt?
Kannon K. Shanmugam: --Mr. Chief Justice, I've heard Mr. Dreeben concede, as I think he must, that an individual retains a legitimate expectation of privacy in at least some of the information contained in the individual's DNA.
And I suppose we can have a dispute about what types of information would qualify.
But I think it really is settled that there are profound privacy concerns raised by the government's coming into possession of an individual's DNA.
Justice Antonin Scalia: Mr. Shanmugam, I -- I wouldn't have made the concession that you've made, that this case is about reasonable expectation of privacy.
If there's no reasonable expectation of privacy, there's no search.
But here, there is a search.
You have a physical intrusion.
You -- you pull a guy's cheek apart and stick a -- a swab into his mouth.
That's a search.
A reasonable expectation of privacy or not.
Kannon K. Shanmugam: Justice Scalia, I didn't think I was conceding anything.
Justice Antonin Scalia: Well, I thought you did.
Kannon K. Shanmugam: If I was, let me just be clear.
We don't think that this Court should be engaging in balancing here.
Indeed, that is really our principal submission to the Court.
Justice Samuel Alito: Well, do you think the intrusion is worse when you just take a swab and you go inside somebody's cheek, as opposed to rolling fingerprints?
Which is the greater intrusion?
Kannon K. Shanmugam: Well, we think that it is settled that intrusions into the body constitutes a search for Fourth Amendment purposes.
Justice Samuel Alito: Which is--
Kannon K. Shanmugam: I suppose that the argument could be made, Justice Alito, that there is a similar trespass on the person and, therefore, a search when fingerprints are collected.
I would note parenthetically that in the first half an hour of this argument we heard no explanation either by the State or by the Federal Government as to their theory as to why fingerprinting is constitutional.
Justice Samuel Alito: --Well, the thrust of a lot of what we have been presented with in the briefs and what we have heard this morning -- and by the way, I think this is perhaps the most important criminal procedure case that this Court has heard in decades.
The attorney for the State began by listing a number of crimes just in Maryland that had been solved using this.
So this is what is at stake: Lots of murders, lots of rapes that can be -- that can be solved using this new technology that involves a very minimal intrusion on personal privacy.
But why isn't this the fingerprinting of the 21st century?
What is the difference?
If it was permissible and it's been assumed to be so for decades, that it is permissible to fingerprint anybody who's booked, why is it not permissible to take a DNA sample from anybody who is arrested?
Kannon K. Shanmugam: --Justice Alito, we think that fingerprinting is distinguishable on three grounds.
First of all, as a practical matter, an individual's DNA contains far more information and far more personal information than an individual's fingerprints.
But as a doctrinal matter, we think that fingerprinting is distinguishable--
Justice Samuel Alito: Well, as to the first, in our cases involving searches for -- where a urine sample is taken to determine drug use.
The urine can be analyzed for all sorts of things besides the presence of drugs, and the Court has said in those cases, we are only going to consider that -- we are considering that this is a reasonable search with respect to the determination of whether the person has taken drugs, not all the other information--
Kannon K. Shanmugam: --But that is because--
Justice Samuel Alito: --that can be obtained from it.
Kannon K. Shanmugam: --But that is because, Justice Alito, in those cases, cases like Skinner and Von Raab and Vernonia, there was a special need apart from the ordinary interests in law enforcement.
And here it is clear that the primary purpose of the Maryland statute and, indeed, the similar statutes on the Federal and State levels was the ordinary interest in crime control, to solve unsolved crimes.
And that is why those special needs cases are distinguishable, and I think that's why the State essentially disavows any reliance on the special needs doctrine.
Justice Elena Kagan: What are your other two distinctions?
Kannon K. Shanmugam: With regard to fingerprinting, we think that, notwithstanding the physical intrusion involved with taking an individual's fingers and putting them on the pad, that the better view is that fingerprinting is not a search, and to the extent that this Court has addressed the question it has suggested that fingerprinting is not a search because an individual has no expectation of privacy in their fingerprints because their fingers are constantly exposed--
Justice Stephen G. Breyer: I would like to give a complete answer to what Justice Alito and Justice Kagan both were asking, I think.
To summarize that, if I look in terms of intrusion, I am not talking legally; I am talking practically.
It doesn't seem to me -- I can argue that it is certainly a much lesser intrusion than fingerprints.
You have to stand there, have the thing rolled; stick out your tongue.
I mean, it's hard to say it's more for me.
I'm not saying for others.
Accuracy, it's much more accurate, and that doesn't just help the defendant.
There is a whole brief here filed by the victims that have case after case where people spent 5 years in prison wrongly and where this system and the CODIS helped victims avoid being arrested and sent to jail when they were innocent.
So it works both ways.
So one, it's no more intrusive.
Two, it is much more accurate.
And three and four and five, how it's different and worse in practice, is what I would ask you to summarize.
Kannon K. Shanmugam: --Sure.
Justice Stephen G. Breyer: And by the way, when you talk about what information you could get out of it, there is a brief filed by leading scientists in the field.
And I came away from the brief thinking there isn't much more information, because fingerprints can be abused, too.
Of course, you can learn loads from fingerprints.
Photos, try photos; my God, you could learn a lot: Who he was, who -- you know, so all these things could be abused.
But I came away from that brief, frankly, to think, well, in terms of the possibility of abuse, it's there, but these other things, photos, too.
Kannon K. Shanmugam: Justice Breyer, let me--
Justice Stephen G. Breyer: Now, you tell me in light of that hostile question--
--I would like you -- I would like you to tell me, okay, it's different from fingerprints and worse because of one, two, three, and I will write it down and I'll remember it.
Justice Antonin Scalia: He gave us one and two.
I have been waiting for three.
Will you drop the shoe?
Kannon K. Shanmugam: --Let me -- I will gladly get to three with regard to fingerprinting, and then I would like to say a word about balancing in the event that the Court reaches it.
Obviously we don't think that balancing is appropriate here because we don't think that the special needs doctrine is applicable and we don't think that Samson should be extended to arrestees.
But with regard to fingerprinting, the other reason why we think fingerprinting is different, above and beyond the fact that we think the better view is that fingerprinting is not a search, is because fingerprinting as it is currently practiced does serve a special need.
The primary purpose of fingerprinting is to identify an individual who is being taken into the criminal justice system.
Justice Elena Kagan: Mr. Shanmugam, this seems to me a real distinction in this case as it's been litigated.
I take what the government is saying is something like: Give us 5 years and those won't look very different.
In other words, we will be able to do in 5 years time exactly what we can do with fingerprinting, except it will be, as Justice Breyer says, more accurate.
So we are just about 5 years ahead of that, so give us a break.
Kannon K. Shanmugam: And my response to that would be that under the special needs doctrine, what is relevant is not how a system could conceivably operate; what is relevant is the primary purpose behind the program at issue.
So if the government were to come back in 5 years' time with a DNA testing program the primary purpose of which was pretrial supervision or identification, one of these other purposes that is being offered, then sure, the analysis would be different.
That is simply a consequence of the fact that this special needs doctrine, unlike the rest of the Fourth Amendment, looks to purpose, namely the purpose of the program at issue.
Justice Anthony Kennedy: A person has been arrested for a felony and is in custody.
Do the police, does the justice system have an interest in knowing whether that person committed other crimes?
Kannon K. Shanmugam: The justice system always has an interest in law enforcement and solving crimes, and we certainly don't dispute that proposition.
But what we do dispute is Mr. Dreeben's principal submission to this Court, which is that simply because law enforcement can do certain things to arrestees, it can do others.
Justice Anthony Kennedy: My question is whether or not the police who have John Doe in custody for a felony have an interest in knowing at the outset or within a few weeks time whether or not that person has committed other crimes?
Kannon K. Shanmugam: --The difference between an arrestee and an ordinary citizen, Justice Kennedy, is that as to an arrestee the police have probable cause to believe that the arrestee committed a particular offense.
Justice Anthony Kennedy: But they also have a reason for keeping him in custody.
Kannon K. Shanmugam: Related--
Justice Anthony Kennedy: And my question is, do they have an interest and a legitimate interest in knowing if that person has committed other crimes?
Kannon K. Shanmugam: --They have that interest, but if they want to investigate other crimes, they have to do what they would have to do as to an ordinary citizen.
They have to have a warrant or some level of individualized suspicion.
Chief Justice John G. Roberts: There are two different, two different interests.
One is we want to solve unsolved crimes; and the other is we want to be sure -- we have someone in our custody and we want to be sure, before he is released back into the community, that he isn't a person who has committed five violent crimes before that.
Now, your brief says, well, the only interest here is the law enforcement interest.
And I found that persuasive because of the concern that it's going to take months to get the DNA back anyway, so they are going to have to release him or not before they know it.
But if we are in a position where it now takes 90 minutes or will soon take 90 minutes to get the information back, I think that's entirely different, because there you can find out whether -- it's just tied in with the bail situation, do you want to release him or not.
Kannon K. Shanmugam: The touchstone of the analysis under the special needs doctrine is what was the primary purpose of the program at issue.
And there is no evidence that pretrial supervision was a purpose of any of these.
Chief Justice John G. Roberts: That's because, that's because we are not yet at a situation where it takes 90 minutes.
Sure, it's not going to do you any good if it's taking 4 months or whatever it took in this case.
But if it's at the point where it's 90 minutes, it would be critical to make that determination.
Kannon K. Shanmugam: Well, Mr. Chief Justice, as I said to Justice Kagan, the constitutional analysis may very well change at later point.
But I think it's important to underscore that neither the State of Maryland nor the Federal Government identifies a single instance in which a pretrial supervision decision in their jurisdictions was altered as a result of the DNA test.
Chief Justice John G. Roberts: Well, let's put it this way.
Let's say the judge or the magistrate is going to make a bail determination and he says: Well, it's important to me to know whether you are going to commit another crime.
So we are not saying you have to give a DNA sample, but it will enter into my calculation if you refuse to do it.
Kannon K. Shanmugam: Well, outside the programmatic context, ordinary Fourth Amendment rules would apply.
Chief Justice John G. Roberts: Well, what does that mean?
Is that okay or not?
Kannon K. Shanmugam: --Well, i think in that circumstance, where there is no individualized suspicion, a search cannot occur, and an arrestee stands--
Chief Justice John G. Roberts: Well, we do it -- doesn't that sound just like a Breathalyzer?
You are pulled over, they say, we want you to take a Breathalyzer test.
They say, you don't have to, but if you don't your license is suspended for 6 months or whatever.
Why isn't that the same thing?
Kannon K. Shanmugam: --Well, you know, I will say that the one thing that is slightly different about your hypothetical, Mr. Chief Justice, is that the analysis might be somewhat different where what you are talking about is a condition of release.
I think you would trigger the unconstitutional conditions doctrine and the analysis might operate somewhat separately, somewhat differently.
But just to conclude with regard to my answer with Justice Kennedy and then to get back to the rest of Justice Breyer's question.
Justice Kennedy, with regard to arrestees, the intrusions on privacy that are permissible are all intrusions that relate to the arrest.
So to take the two principal examples, the search incident to arrest doctrine, which you mentioned, and searches associated with an individual's continued detention, so the strip searching example, those doctrines have discrete justifications that limit their scope.
So the search incident to arrest doctrine permits searches for officer safety, to prevent destruction of evidence, and at least in the vehicular context, to search for evidence related to the offense of arrest.
Now, none of those rationales apply here, and I would note parenthetically that in Schmerber v. California, this Court suggested that the search incident to arrest doctrine would not permit searches into the body.
Justice Anthony Kennedy: But we are also talking about identity.
I assume that in Maryland and in a number of States the time between release on bail and return for trial is more than four months.
And if it's found as an identity matter that this person has a criminal record or that they are -- is suspected of serious crimes, that is a mandatory ground for reconsideration of bail.
And you say there is no interest in that.
Kannon K. Shanmugam: I am not disputing that the government has an interest in knowing about prior offenses that an individual has committed.
What I am simply saying is that the primary purpose of DNA testing, unlike fingerprinting, is to investigate unsolved crimes.
That is the ordinary interest in law enforcement, and when the government is indicating--
Justice Ruth Bader Ginsburg: I thought fingerprinting -- Mr. Shanmugam, I thought fingerprinting was used to determine whether they -- the person has a record.
We have this person and now we check the fingerprints to find out if he has a prior record, that's different from to find out if he has committed a crime that we don't know about.
But are fingerprints used to determine whether the person has a prior record?
Kannon K. Shanmugam: --Fingerprints taken upon booking are primarily used for the purpose of identification, and by identification I would include determining whether the individual had a prior criminal record, because as IAFIS is currently structured, that is information that is returned once there is a hit for that initial search.
Justice Samuel Alito: What was the purpose of fingerprinting before it was possible to make fingerprint comparisons by computer?
Kannon K. Shanmugam: Well, I think fingerprinting really has from the outset served the purpose of identification, because fingerprinting really came into being approximately 100 years ago, because in large urban areas officers could no longer identify individuals on sight.
Now, to be sure, fingerprinting does serve a law enforcement purpose as well.
As Mr. Dreeben indicated, there is a latent fingerprint database that roughly corresponds to--
Justice Samuel Alito: Well, I would assume that before it was possible to do computer searches, the way in which fingerprinting established identification, what it did in that respect was to identify the person arrested on this occasion so that if the person was arrested again, then the police would know that it was the same person.
There was no way of -- no practicable way of taking the fingerprints of somebody who was booked and determining whether that person -- you didn't have anything to compare it to.
And they certainly -- you couldn't do it manually.
Kannon K. Shanmugam: --That is true.
But again, the purpose of fingerprinting as it developed over time was identification in the sense that as fingerprints were being collected, individuals could proceed to be identified based on prior--
Justice Sonia Sotomayor: Can we go back to--
Justice Samuel Alito: Yes, so you know that on day one you have arrested -- you've arrested Mr. X, and then a year later you arrest somebody else and you know it's Mr. X again.
And DNA can do exactly the same thing except more accurately.
Kannon K. Shanmugam: --But I think it's important to realize, Justice Alito, that at least as the DNA system is currently constituted, when an arrestee's profile is prepared, it is compared against the offender and arrestee indices, not the forensic index.
And indeed, as we understand it and I think Mr. Dreeben's discussion of this is probably consistent with this, at least on the Federal level, it is not permissible to take that profile and search it against the offender and arrestee indices.
Now that very well may occur in certain States.
We don't have any reason to believe that that is what takes place in Maryland.
But again, this is really what distinguishes the way in which fingerprinting is--
Justice Stephen G. Breyer: I think I can totally lose this because I have a confusion that you can clear up.
There is something to what you say.
I see what you are saying.
But what does this word “ identification ” mean?
It's used for identification.
We have a person who's been arrested.
He writes his name down, Mr. Smith.
Maybe he's lying.
We have his picture.
Well, his picture's pretty good.
If he turns up in a bar somewhere in the future, we can look, see, and that's awfully good.
And now you say, well, what is fingerprinting doing that photos aren't doing in terms of identification?
What does it do in terms of just identification?
Kannon K. Shanmugam: --Sure.
Justice Stephen G. Breyer: What does it do?
Kannon K. Shanmugam: We think it means determining or confirming the identity of an individual.
Justice Stephen G. Breyer: What does that mean, confirming his identity?
We have, you mean what, what exactly?
Kannon K. Shanmugam: Confirming, for instance, in this case that the individual in the government's custody was Alonzo King.
Justice Stephen G. Breyer: Oh, really?
I mean, do you think the fingerprints -- where do you go to find out if he's Alonzo King?
A lot of people have never had their fingerprints taken before.
Kannon K. Shanmugam: Well, but 73 million people are in the criminal offender--
Justice Stephen G. Breyer: But to determine what his name really is.
Kannon K. Shanmugam: --And his criminal entity, sure, his adjudicated criminal history, which can also be--
Justice Stephen G. Breyer: Right.
You want to determine what his name really is plus his adjudicated criminal history, and here we have the DNA, which I guess might or might not help determine what his name really is; and his criminal history, it does about the same.
And also fingerprints are sometimes used to -- for unsolved crimes, and they are sometimes used for unsolved crimes but your point really is more for unsolved crimes.
Have I got it?
Kannon K. Shanmugam: --Justice Breyer, no, I think with respect you haven't.
With regard to DNA testing, a DNA profile, at least as the Federal system is configured, is compared against the forensic index.
That is the index of samples from unsolved crimes.
And so that is really in contradistinction to how the fingerprint database works.
Justice Sonia Sotomayor: --Counsel, so I am really worried about the question you haven't satisfied me with, which is I agree completely that today it's used primarily and almost exclusively for purposes of solving other crimes.
But let's -- is this -- the question that I think one of my colleagues asked, is that only because technology hasn't moved fast enough?
You said we have to look at the constitutional principles 5 years from now when they will use it to pull up a guy's criminal history.
Not unsolved crimes, but criminal history.
Get to that day.
Kannon K. Shanmugam: Sure.
Well, Justice Sotomayor--
Justice Sonia Sotomayor: Tell me what the -- why you would then say that would still be unconstitutional.
Kannon K. Shanmugam: --Justice Sotomayor, assuming that this Court does not accept the proposition that arrestees are somehow subject to a lessened expectation of privacy--
Justice Sonia Sotomayor: Right.
Let's assume we go under a normal Fourth Amendment, you need probable cause to search.
Kannon K. Shanmugam: --Right.
And the only other potentially applicable exception to the principle that warrantless, suspicionless searches are unconstitutional is the special needs exception, and that exception looks to the primary purpose of the program at issue.
And the mere fact that DNA testing could be used for other purposes wouldn't necessarily be dispositive of the inquiry.
If the primary purpose of DNA testing is still to investigate unsolved crimes, the program would still not qualify under the special needs doctrine.
Justice Elena Kagan: Just suppose -- I mean, I guess the question is would this be unconstitutional?
It's not the world we are living in now, but let me -- 10 years from now the government says, we are really switching over to a fingerprint system -- to a DNA system and what that system is going to allow us to do, is it's going to allow us to identify, and it's going to allow us to bring up the old criminal history and it's going to allow us to see whether there are also unsolved crimes that we can tag to this person and discover that he's really, really dangerous.
And so the government puts that system into effect.
Is it constitutional?
Kannon K. Shanmugam: I think that it could be, and that would simply be because you would have a system where DNA testing is essentially being used as fingerprinting is being used today.
But again I don't think--
Justice Sonia Sotomayor: I was interested in a broader thought process, actually.
Do you mind giving it to me?
Kannon K. Shanmugam: --Well--
Justice Sonia Sotomayor: Which is, there is something inherently dangerous about DNA collection that is not the same as fingerprinting.
Kannon K. Shanmugam: --Well, there is, and that gets me back finally to the rest of Justice Breyer's question from a few minutes ago, because Justice Breyer had kind of asked how the analysis should work in the event that the Court were to proceed to balancing.
And so I just want to say a word about the relevant privacy interests and the relevant governmental interests and to explain why we think that the relevant privacy interests outweigh those governmental interests.
On the privacy side of the ledger, we certainly believe that there are profound privacy concerns associated with the government's collection of an individual's DNA.
And leaving aside the question of how much personal information is contained in the 13 loci -- and we certainly think that there is significant personal information even as to those loci -- I don't think there can be any dispute that when you evaluate the entirety of an individual's DNA, there is a great deal of personal information contained there.
And in our view, that has to be taken into account when engaging in balancing.
Now, the government's response to that is essentially the “ just trust us ” defense; namely that the government is not looking at all that information, it is only looking at a certain subset of that information.
But that has never been how this Court has analyzed privacy interests, at least outside the special needs context.
Probably the closest analog is this Court's decision in Tyler v. United States, where the Court said that it was of no moment that the heat-sensing device that was at issue in that case did not detect any information about the intimate details of activities within the home.
Chief Justice John G. Roberts: You disclose all of this intimate private information when you take a drink of water and leave -- leave the glass behind.
Kannon K. Shanmugam: But, Mr. Chief Justice, as I said at the outset, we believe that there might still be -- indeed, we think the better view under this Court's cases is that there would still be a Fourth Amendment search there.
The only difference would be that you don't have the intrusion into the body that makes the question of whether or not there is a search here an easy one.
Now, I want to say just a word about the governmental--
Justice Samuel Alito: What if someone has a bloody shirt and throws it away in the trash -- in a public trash can along the street, you are saying that the police can't analyze that without a search warrant?
Kannon K. Shanmugam: --The argument would be that the subsequent analysis of the DNA nevertheless still constitutes a search.
And the most significant decision on this issue to date is the Fourth Circuit's decision in United States v. Davis, which I would encourage you to look at if you are interested in this issue, because it holds that the extraction of the DNA from an item that was lawfully in the government's custody still constitutes a search.
Let me say just a word, though, about the governmental side of the balance here, because I think this is important.
Ms. Winfree started with the statistics about the efficacy of DNA testing of arrestees, but our submission is simply that when you look at the relevant subset of cases, namely individuals who have been arrested but who are not subsequently convicted of the offense of arrest, the law enforcement value of DNA testing is relatively modest.
My understanding is that--
Justice Samuel Alito: But your client was convicted of the offense of arrest.
Kannon K. Shanmugam: --That is correct.
Justice Samuel Alito: And it was a serious offense punishable by up to 10 years imprisonment--
Kannon K. Shanmugam: Well, my client--
Justice Samuel Alito: --Isn't that correct?
And he was sentenced to 4 years.
Kannon K. Shanmugam: --That is -- my client was convicted of the crime of arrest, to be sure.
But under the Maryland statute that crime was not a serious enough crime to qualify for DNA collection at that point.
Justice Samuel Alito: For Fourth Amendment purposes -- for Fourth Amendment purposes, do you think that it is -- that it is permissible to take a DNA sample from someone who is convicted of an offense that would qualify as a felony under common law?
Kannon K. Shanmugam: We think that it would be permissible to collect DNA from any individual who has been convicted and is subjected to the continued supervision of the State.
And that is simply because those individuals have a lessened expectation of privacy.
But just to get on the table--
Justice Ruth Bader Ginsburg: When they're no longer in the custody of the State, does the government have to destroy it?
They served their time and their privileges have been restored.
Kannon K. Shanmugam: --We don't -- we don't think in that circumstance, Justice Ginsburg, that the government would have to destroy the DNA sample.
Justice Anthony Kennedy: Does a felon who's been arrested have a reduced expectation of privacy at the time of arrest?
Kannon K. Shanmugam: I'm sorry?
A felon who has been--
Justice Anthony Kennedy: Does a felon -- does a person who has been arrested for a felony have a reduced expectation of privacy at the time of his arrest?
Kannon K. Shanmugam: --I would not say that that person has a reduced expectation of privacy.
What I would say is that there are certain intrusions on privacy, some of which are quite substantial, that are permissible because there are justifications unique to the arrest.
So in Florence, this Court permitted the strip search of an individual who is being admitted into the general jail population based on the special need of ensuring prison safety and preventing contraband from being introduced into the prison.
Chief Justice John G. Roberts: Thank you, counsel.
Ms. Winfree, you have 3 minutes remaining.
REBUTTAL ARGUMENT OF KATHERINE WINFREE ON BEHALF OF THE PETITIONER
Katherine Winfree: On the question of rapid DNA, the FBI estimates that we're about 18 to 24 months away from that world, and I would cite the National District Attorneys Association's amicus brief on page 20 where it discusses the -- that this is not science fiction.
So we are very, very close to that.
And I wanted to just address a couple of the questions that arose during Respondent's presentation.
Justice Kennedy, the State does have a compelling need and a compelling interest in knowing who is in its custody, and arrestees do not have a legitimate expectation of privacy in their identity.
We have a legitimate and compelling need to identify suspects and to aid in solving crimes.
And our -- and our definition of what identification is, is somewhat broader than Respondent's.
It's not just what his name is and what his face is and what his fingerprints show.
It is that CODIS DNA profile, those 26 numbers.
So in our view that's a broader definition of identity.
And I wanted also just finally to address Justice Alito's question.
This is the fingerprinting of the 21st century, but it's better.
Typically DNA evidence is used to identify rapes and murderers.
Fingerprints typically do not solve those kinds of crimes.
And if the primary purpose of fingerprinting is just to identify, it also is used -- fingerprinting now is used, the prints are compared against the latent database in IAFIS and they are used to solve crimes.
But they typically don't solve the kind of crimes that we are talking about here, and it wouldn't have been solved in Mr. -- in Mr. King's case.
Chief Justice John G. Roberts: How can I base a decision today on what you tell me is going to happen in 2 years?
You say, in 2 years we will have this rapid DNA available, but we don't now.
Don't I have to base a decision on what we have today?
Katherine Winfree: Well, that's really only one component of our argument, Mr. Chief Justice, that certainly with respect to a bail determination we will be able to make it more rapidly at the time that rapid DNA comes into effect.
Justice Antonin Scalia: Yes, but if we believe that the purpose of it has much to do with whether it's legitimate or not, you can't demonstrate that the purpose is immediate identification of the people coming into custody.
You just can't demonstrate that now.
Maybe you can in 2 years.
The purpose now is -- is the purpose you began your presentation with, to catch the bad guys, which is a good thing.
But you know, the Fourth Amendment sometimes stands in the way.
Katherine Winfree: It has a corollary purpose, Justice Scalia.
What we are suggesting and arguing is that solving crimes, to be sure, is the key component, but in solving crimes and connecting an arrestee to a crime that's unsolved informs a judge's determination about whether to release that individual.
And as Mr. Dreeben said, bail modifications can happen, they do happen all the time.
And in Maryland, it's going to have -- it's going to be happening before rapid DNA.
Right now we are able to make that determination in a period between 11 and 17 days.
So we are not asking you to base your decision on the futuristic world, which is really only 2 years out with rapid DNA anyway.
But we can make those bail determinations now and in fact they are important for where we house prisoners and how we supervise them in custody.
Chief Justice John G. Roberts: Thank you, counsel.
The case is submitted.
Justice Antonin Scalia: I'll describe that dissenting opinion.
The Court's opinion barely mentions the crucial fact about this case.
The search here was entirely suspicionless.
The police had no reason at all to believe that King's DNA would link him to any crime.
In approving that suspicion a search, the Court has cast aside a bedrock rule of our Fourth Amendment law that the government may not search its citizens for evidence of crime unless there is reasonable cause to believe that such evidence will be found.
The men who wrote and ratified that amendment had come to know well what it was like to live under a regime that did not obey this principle.
Whenever we have allowed suspicionless searches, we have insisted upon a justifying motive apart from mere investigation of crime.
Our cases call those exceptional searches special needs searches, an example being the drug testing of train engineers for public safety purposes.
It is perfectly obvious that no special need, no non-investigative motive justified the swabbing of King's cheek.
The purpose was to learn whether King had committed an unsolved crime.
A fact the Court does mention often is that King was under arrest when his DNA was taken, but that is quite irrelevant.
The state's accusations do not suddenly render a man stranger to the Fourth Amendment.
And the limited circumstances in which we have permitted searches of arrestees do not support what the Court does today.
The fact of an arrest will allow a brief search for weapons, but that is a type of a special need search, a matter of officer's safety, not crime solving.
And if the police believe that an arrestee has evidence relevant to his crime of arrest, they may search him for it, but that is not a suspicionless search.
We have never held, however, that arrestees maybe subjected to general suspicionless searches simply because that would be useful to solve unrelated crimes.
That is a terrifying principle, too much in the end even for today's majority.
So after genuflecting to King's arrestee status, the Court dedicates nearly all of its opinion to a different argument.
King's DNA was taken, we are told, to identify him.
That assertion taxes the credulity of the credulous unless what the Court means is that taking King's DNA identified him in the sense of enabling the police to learn what crimes he had committed before.
But that sort of identification is just another way of describing the police's ordinary interest in solving crimes which is never enough to permit a suspicionless search.
We would never, for example, permit the police to search every lawfully stopped car in hopes of turning up evidence of unrelated crimes.
But doing so, would identify the driver in the question-begging sense the Court uses the word today, that is in the sense that it would tell whether he was committing or had committed some other crimes.
In the ordinary sense of the term identification, the sense in which we all use it, the DNA search here did not and could not have identified King for a host of reasons.
First, the Maryland statute forbids it.
It sets forth several permissible purposes for DNA testing, chief among them being investigation of crime, but while it permits DNA testing to identify missing persons and to identity human remains, it nowhere mentions identification of arrestees.
Moreover, under Maryland law, the DNA testing cannot even begin until the arrestees' first appearance in court which makes a hash out of the Court's theory that DNA could be used to set bail and once the testing does begin it is far too slow to be used for identification.
It took months to process King's DNA sample.
By the time, and not because of some mistake, it typically takes months in Maryland.
By the time it was done, his first trial was nearly over and the case was titled State versus King, not State versus John Doe.
And when the sample was finally processed, it was not used to confirm King's identity.
Instead of being checked against the DNA samples of known convicts and arrestees which would have identified him, King's sample was compared against DNA of unknown individuals, taken from unsolved crimes.
That is perfectly sensible if one wants to solve those crimes, but it is baffling if one wants to identify someone.
In fact, when King's DNA was entered into the collection of arrestee DNA samples, it was entered along with information identifying him.
So, that if the DNA matched that from an unsolved crime, they would know whom to pursue.
In other words, the entire design of the database assumes that the identity of arrestees will already be known.
The Court's comparisons to fingerprinting and other booking procedures can see that only if the reader knows no more than today's opinion chooses to tell him about how these DNA searches really work.
An arrestee can be fingerprinted in moments and results come back virtually instantly.
The fingerprint database, unlike the DNA database for unsolved crimes, contains detailed identification information.
And while Maryland waited three days after his arrest as its law required to begin testing King's DNA, I doubt very much that they waited that long to ask his name or to take his fingerprints.
Fingerprinting in short really is used to identify arrestees.
It does the job so well, in fact, that there would be no need for a separate wholly redundant confirmation of the same information using DNA. What DNA adds is the ability to solve crimes, nothing more.
That is certainly a noble objective, but not one that can justify a suspicionless search.
The Court's opinion minimizes the seriousness of the search.
It is not as intrusive, the opinion says as would be a suspicionless search of the home.
That is a curious view of the Fourth Amendment which lists the entities protected against unreasonable searches in the following order; persons, houses, papers, and effects.
A search of the person is the most offensive.
I would not want to have been the royal officer charged with swabbing the cheek of Patrick Henry and while minimizing the intrusiveness of the search, the Court's opinion exaggerates its benefits.
The DNA testing, the Court tells us, “May have the salutary effect of freeing a person wrongfully imprisoned for the same effect -- for the same offense.”
That is quite impossible since the DNA database with which King's DNA was compared contains DNA connected from unsolved crimes.
Persons are wrongfully imprisoned only for solved crimes.
To assess the benefits of this search, one also must realize that there is no problem once the individual has been convicted of then taking his DNA.
The Fourth Amendment rights of that person convicted are less.
That is one of the consequences of conviction.
So, what that means is that the only thing achieved by today's opinion is that people who are wrongfully arrested or at least arrested for a crime that they are not convicted of will be subject to DNA testing.
If they're convicted, there's no problem about using it.
It's only the innocent arrestees.
The Court attempts to disguise the vast scope of today's holding by promising to limit it to those who have been arrested for what it calls serious offenses.
That line lacks any principle basis and will not last.
If you believe that a DNA search will identify someone arrested for bank robbery, you must believe that it will identify someone arrested for running a red light.
To decide otherwise would require the sort of senseless distinctions that this Court is not accustomed to make, is not supposed to make if there is any difference between prescribing legal rules willy-nilly and deciding what an existing legal principle requires.
In the end, logic will out.
Make no mistake about it because of today's decision, your DNA can be taken and entered into a national database if you are ever arrested rightly or wrongly and for whatever reason.
This will solve some extra crimes to be sure but so would taking your DNA whenever you fly on an airplane.
Surely the TSA must know the identity of the flying public. For that matter, so would taking your children's DNA when they start public school.
It maybe wise as the Court obviously believes to make the leviathan all seeing so that he may protect us all the better, but the proud men who wrote the charter of our liberties would not have been so eager to open their mouths for royal inspection.
I respectfully dissent.
Chief Justice John G. Roberts: Justice Kennedy has our opinion this morning in case 12-207, Maryland versus King.
Justice Anthony Kennedy: In 2003, a man concealing his face and armed with a gun broke into a woman's home in Salisbury, Maryland.
He raped her.
The police were unable to apprehend the assailant but they did obtain from the victim a sample of his DNA.
Some six years later, in 2009, Alonzo King, who is the respondent here, was arrested in Maryland for a different crime.
He was arrested for assault while brandishing a weapon and this was an arrest for a serious offense as defined by Maryland law.
As part of a routine booking procedure for serious offenses authorized by Maryland law, King's DNA was taken when he was arrested.
Now to take a DNA sample, officers have the subject to open his mouth, they use a swab that looks like a long Q-tip to take the sample.
Now the procedure is routine and painless.
King's DNA was found to match the DNA taken from the Salisbury rape victim.
This information led to King's trial and conviction for the rape.
CODIS is the DNA nationwide database that's used to connect DNA laboratories for this matching process, they're connected nationwide by CODIS.
In this case, it took about four months from the time the sample was first taken from King until the report matching DNA from the rape was received.
But the time was often faster and in any event, the bail determination or actual release of the serious offender as a routine matter before trial, can take weeks or months.
The Court of Appeals of Maryland set aside King's rape conviction.
It ruled that the DNA taken when King was arrested in 2009 was a violation of the Fourth Amendment as applied to the states through the Fourteenth Amendment.
They held that it was a violation because it was an unreasonable search.
This Court now reverses the judgment of the Maryland court.
The advent of DNA technology is one of the most significant scientific advances of our era.
The full potential for use of genetic markers in science and medicine is still being explored, but the utility of DNA identification in the criminal justice system is already undisputed.
Although the DNA sample procedure used here presents a question this Court has not yet addressed, the framework for deciding the issue was well established.
The Fourth Amendment prohibits unreasonable search and seizures.
There can be no dispute that the DNA swab process is a search.
But the fact that a DNA swab is a much more gentle process than say a needle that's used to withdraw blood is of central relevance in determining whether the search is reasonable.
The ultimate measure of the constitutionality of the governmental search is reasonableness.
In ruling that the search was reasonable, today's opinion explains that the legitimate government interest served by a DNA identification is one that is well established, the need for law enforcement officers in a safe and accurate way to process and identify the persons they must take into custody.
When probable cause exists to remove an individual from the normal channels of society on charges for a serious offense and hold him with proper safeguards in legal custody or release him on bail with adequate conditions, DNA identification plays a critical role in serving those interests.
An individual's identity is more than just his name or social security number.
The government's interest in identification goes beyond ensuring that the proper name is typed on the indictment.
A suspect's criminal history is a critical part of his identity.
Police already seek this information using a variety of long approved means, notably the comparison of an arrestee's fingerprints against databases of known criminals and unsolved crimes. Identification necessarily entails searching public and police records to see what is already known about an arrestee.
DNA is another means of identification used to connect the arrestee with his or her public persona as reflected in records of his or her actions that are available to the police.
This includes matching to other DNA samples previously collected from crime scenes.
This information found in official records is checked as a routine matter to produce a more comprehensive record of the suspect's complete identity.
In this respect, an arrestee's CODIS profile is a different form of identification than a name or fingerprint but its function is the same.
Now among the many reasons for this identification, why this identification is important is to determine whether an arrestee can be released pending trial.
DNA identification establishing more about the person's identity and background can provide critical information relevant to the conditions of his release and whether to revisit an initial release determination and as said earlier, sometimes this process takes months in any event.
Pre-trial release is the most serious responsibility.
It is reasonable in all respects for the state to use an accepted database to determine if an arrestee is the object of suspicion in other serious crimes, suspicion that may provide a strong incentive for the arrestee to escape or to flee on -- after him being released.
Given the importance of DNA and the identification of police records pertaining to arrestees and the need to refine and confirm that identity for its important bearing on the decision to continue release on bail or impose new conditions or to revoke bail, DNA serves an essential purpose despite the existence of delays such as the delay that occurred in this case.
By comparison to this substantial government interest and the unique effectiveness of DNA identification, the intrusion of a cheek swab to obtain a DNA sample is a minimum one.
In addition, the processing of King's DNA did not intrude on his privacy.
The CODIS points of comparison come from non-coding parts of the DNA that do not reveal genetic traits of the arrestee and Maryland law provides a substantial statutory protection system to guard against further invasion of privacy.
For these reasons and others set forth in the opinion published today, the Court concludes that DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure.
The judgment of the Court of Appeals of Maryland is reversed.
Justice Scalia has filed a dissenting opinion in which Justices Ginsburg, Sotomayor, and Kagan join.