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Rabu, 27 November 2013

Maryland v. King: When Being Smart and Witty Isn't Enough

Justice Scalia's dissenting opinion in Maryland v. King, the arrestee-DNA case, has been praised as "one of the best Fourth Amendments dissents, ever" and his "smartest, wittiest ruling of all time." [1] But one man's wit is another's vitriol, and the opinion, according to another law professor, is "dripping with contempt." [2]  Stylistically, this opinion is more evidence that the art of writing with courtesy as well as conviction has been lost.

Substantively, what makes this dissent "one of the best"--other than one's feelings about which result is correct? It cannot be that the opinion sets forth some enduring principle for understanding and applying the Fourth Amendment. The opinion is less concerned with what the Maryland police did than with why they did it. Thus, the opinion begins with the following seemingly bright-line rule: "[w]henever this Court has allowed a suspicionless search, it has insisted upon a justifying motive apart from the investigation of crime" and then single-mindedly devotes itself to demonstrating that the "primary purpose [of the search] was to detect evidence of ordinary criminal wrongdoing." Id. at 1981-82. In the process, it overlooks the real possibility that something about the type of search and evidence in question makes the putative rule inapposite.

I say "putative rule" because the law is not as clear as the opinion suggests. The Court allowed a suspicionless search of a person on parole in Samson v. California, 547 U.S. 843 (2006). Although the majority led by Justice Kennedy in King relied prominently on Samson, Justice Scalia made no effort to disavow or distinguish the case.

More fundamentally, the dissent's desire for a rule that prohibits all suspicionless searches that have as their "primary purpose" the production of evidence of a crime leads to an odd result. The police may not collect a DNA sample by painlessly swabbing the inside of a cheek if they intend to see whether it matches one on file from an unsolved murder, rape, or other crime; however, they can if they want the same DNA profile, first and foremost, to verify the name and look up any previously recorded criminal history of the same person. Other than reciting the supposedly absolute rule about motives, the dissent offers no justification for this difference. It does not contest the majority's claim that the nature of the invasion of personal security and privacy in King is minor, akin to photographing or fingerprinting an arrested person. (I will look at what the dissent had to say about photography and fingerprinting in a separate posting.)

In criminal procedure cases, Justice Scalia favors absolute rules that require little inquiry into competing values. In King, this mode of analysis allowed him to vehemently insist that the Fourth Amendment does not allow forcing a prisoner to provide a small DNA sample. Yet, he did not dissent from Justice Kennedy's opinion in Florence v. Chosen Board of Freeholders, 132 S. Ct. 1510 (2012), which upheld a police practice of forcing all prisoners in jails to disrobe, open their mouths, wiggle their tongues, and move their genitalia so that their jailers could inspect their nude bodies--all without the slightest suspicion that the individual is concealing evidence or contraband. [3] In that case, why did Justice Scalia express no doubt that "the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection"? King, 133 S.Ct. 1958, 1989 (2013) (Scalia, J., dissenting).

To avoid misunderstanding, I hasten to add that I too find the dissenting opinion powerful, at least when it comes to showing that Maryland's primary legislative purpose in authorizing DNA collection and analysis before conviction was to investigate crimes other than ones for which the arrest is made. But that was hardly a blinding insight [4], and the opinion does not address the more basic question of why the intent to gather evidence should invalidate biometric data collection. Is it unconstitutional for police to collect fingerprints from arrestees with the sole intent to check them against a database of latent prints from unsolved crimes? With the database check as the "primary purpose"? Id. at 1981-82 emphasis added). It is nearly impossible to tell from this, Justice Scalia's "smartest ... ruling."

References
  1. Jeffrey Rosen, A Damning Dissent: Scalia's Smartest, Wittiest Ruling of All Time, New Republic, June 4, 2013, available at http://www.newrepublic.com/article/113375/supreme-court-dna-case-antonin-scalias-dissent-ages.
  2. Noah Feldman, Grumpy Old Scalia v. Those Pesky Kids, Bloomberg View, June 30, 2013, http://www.bloomberg.com/news/2013-06-30/grumpy-old-scalia-v-those-pesky-kids.html.
  3. Sherry F. Colb, The Road to Justice Scalia Is Paved With (Some) Intentions, Verdict, June 12, 2013, http://verdict.justia.com/2013/06/12/the-road-to-justice-scalia-is-paved-with-some-intentions#sthash.v1VilcDr.dpuf
  4. David H. Kaye, Who Needs Special Needs? On the Constitutionality of Collecting DNA and Other Biometric Data from Arrestees, 34 J. L., Med. & Ethics 188 (2006), available at http://ssrn.com/abstract=944359
Previous Postings on the Opinions in Maryland v. King

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