What Is Wrong with People v. Lowe? More on DNA-on-Arrest Laws After Maryland v. King

Less than 24 hours before the U.S. Court of Appeals for the Ninth Circuit issued an opinion that avoided addressing the constitutionality of California's all-felony-arrest DNA database in the light of the Supreme Court's opinion in Maryland v. King, the California Supreme Court granted review to confront this question. The case, People v. Lowe, already has generated two opinions from California's Fourth District Court of Appeal.

In its first opinion, the California Court of Appeal concluded that

[T]he legitimate governmental interests promoted by the warrantless collection of DNA samples, including buccal swab samples, from felony arrestees who are taken into custody upon probable cause, far outweigh the arrestees' privacy concerns. Our conclusion is based on the following five reasons: The felony arrestee's diminished privacy interests; the de minimis nature of the physical intrusion involved in the collection of a buccal swab sample; the carefully limited scope of the DNA information that is extracted; the strict limits on the range of permissible uses of the DNA information obtained and the significant criminal penalties imposed upon those who violate those limitations; and the strong law enforcement interests in obtaining arrestees' identifying information, solving past and future crimes, deterring future criminal acts, and exonerating the innocent.

No. D059007, 2012 WL 5918717, Nov. 27, 2012, at *12 (unpublished opinion).

The California Supreme Court then directed the Court of Appeal to reconsider the matter in light of the U.S. Supreme Court's decision in Maryland v. King. See 165 Cal. Rptr. at *110. The Court of Appeal responded by recycling its original opinion with some quotations from King spliced in. It repeated the "five reasons" paragraph, moving a few words around. Id. at 121-22. It added four paragraphs to show that "[o]ur decision is consistent with the United States Supreme Court's recent majority decision in King," id. at 122, and called it a day.

Apparently, some of the California Supreme Court Justices believe that there is more to say about the possible distinctions between the Maryland law and the California one — either to establish that one some of the differences between the two laws matter or to confirm the Court of Appeal's conclusion that they do not.

Elsewhere, I have argued that the Supreme Court could invalidate a system like California's without overruling King (Kaye 2014). But I doubt that the Justices in the King majority would have any inclination to strike down any DNA-on-arrest law, and, as the latest Lowe opinion indicates, some of their statements in King make it easy to extend the case to California's law. 1/

Whatever lies behind the grant of review, the California Supreme Court can improve on the opinion in Lowe. First, it should not claim, as the Court of Appeal did, that "[t]he primary purpose of the amended DNA Act is to identify arrestees" in the sense of establishing who is who. Although California collection of DNA on arrest serves more than one purpose, the primary purpose of Proposition 69 is to solve and deter more crimes. 2/ Second, if the state supreme court chooses to include in a balancing test the value of capturing arrestees in the DNA database for solving crimes, it should recognize that this approach differs from the more contrived balancing in King. Third, if the supreme court does balance in this context, it should be careful about what it puts on each side of the balance. Thus, it should repudiate the view that arrestees have "diminished privacy interests." Their interests in privacy are no less valuable than anyone else's. The arrest is salient because it brings to bear state interests that would not otherwise be present, but it does not diminish the weight of anyone's Fourth Amendment interests. Fourth, the supreme court should avoid the Court of Appeal's incoherent reasoning about what triggers "totality of the circumstances" balancing. 3/ Finally, any opinion should avoid the phrase "junk DNA" and should describe the information content of DNA profiles in terms that are less easily confused with a different scientific issue (see Greely & Kaye 2014).

Notes

1. See also Haskell v. Harris, No. 10-15152 (9th Cir. Mar. 20, 2014) (M. Smith, J., concurring)); Murphy (2013). 
2. The Declaration of Purpose begins as follows: "Our communities have a compelling interest in protecting themselves from crime." Text of Proposed Laws, Proposition 69.
3. The Court of Appeal first claimed, on the basis of the Supreme Court's anomalous opinion in Samson v. California, 547 U.S. 843 (2006), that "whether a particular search meets the reasonableness standard is judged by examining 'the totality of the circumstances.'" Then it contended that instead of judging whether every particular search is reasonable under so fluid a standard, the judgment is to made under the categorical rule that "[s]ubject only to a few well-delineated exceptions, warrantless searches are per se unreasonable under the Fourth Amendment." Then, it applied a balancing test, not at the level of a particular search, but at a programmatic level, to conclude that the California law satisfied the Fourth Amendment. Recognizing a categorical exception to the per se rule against warrantless searches would be one way to avoid such confusion. E.g., Kaye (2013).

References

• Haskell v. Harris, No. 10-15152 (9th Cir. Mar. 20, 2014.
• Maryland v. King, 133 S.Ct. 1958 (2013).
• People v. Lowe, 165 Cal.Rptr.3d 107 (Ct. App. 2013), rev. granted, Mar. 19, 2014.
• Henry T. Greely & David H. Kaye,A Brief of Genetics, Genomics and Forensic Science Researchers in Maryland v. King, 54 Jurimetrics J. 43 (2013).
• David H. Kaye, Why So Contrived? Fourth Amendment Balancing, Per Se Rules, and DNA Databases After Maryland v. King, 104 J. Crim. L. & Criminology (forthcoming May 2014).
• David H. Kaye, A Fourth Amendment Theory for Arrestee DNA and Other Biometric Databases, 15 U. Pa. J. Const. L. 1095 (2013).
• Erin Murphy, License, Registration, Cheek Swab: DNA Testing and the Divided Court, 127 Harv. L. Rev. 161 (2013).

Acknowledgment

Thanks to Erin Murphy for remarking on the grant of review in Lowe.

Previous Postings on the Aftermath of Maryland v. King

• The Ninth Circuit's Minimal Opinion in Haskell v. Harris, March 22, 2014

Previous Postings on the Opinions in Maryland v. King

• Maryland v. King No. 1: Quick Thoughts, June 3, 2013, http://for-sci-law.blogspot.com/2013/06/maryland-v-king-no-1-quick-thoughts.html
• Maryland v. King No. 2: Was There a Search?, June 7, 2013, http://for-sci-law.blogspot.com/2013/06/maryland-v-king-no-2-was-there-search.html
• Maryland v. King: Interlude, June 9, 2013, http://for-sci-law.blogspot.com/2013/06/maryland-v-king-interlude.html
• Maryland v. King No. 3: Bertillonage as Precedent, June 12, 2013, http://for-sci-law.blogspot.com/2013/06/maryland-v-king-no-3-bertillonage-as.html
• Maryland v. King: A Digression on Ellipses, Actual Innocence, and Dr. Mengele, June 13, 2013, http://for-sci-law.blogspot.com/2013/06/maryland-v-king-digression-on-ellipses.html
• Maryland v. King: “Quite a Worldview”, June 15, 2013, http://for-sci-law.blogspot.com/2013/06/maryland-v-king-quite-worldview.html
• Maryland v. King: The Tenth Justice (Stevens) Votes, June 15, 2013, http://for-sci-law.blogspot.com/2013/06/maryland-v-king-tenth-justice-stevens.html
• Maryland v. King: When Being Smart and Witty Is Not Enough, Nov. 27, 2013, http://for-sci-law.blogspot.com/2013/11/maryland-v-king-when-being-smart-and.html
• Maryland v. King: The Dissent's Ten Second Rule, Nov. 29, 2013, http://for-sci-law.blogspot.com/2013/11/maryland-v-king-dissents-ten-second-rule.html
• Blast Off for King from Florida's Space Belt? Not Quite, Feb. 26, 2014, http://for-sci-law.blogspot.com/2014/02/blast-off-for-king-from-floridas-space.html

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