The Impact of Medina's Marginal Balancing on DNA Databases and Sample Retention

The opinion of the Supreme Court of Vermont in State v. Medina is a first. This is not because it strikes down a law requiring all individuals merely charged with felonies to submit to DNA sampling. Other state courts have held that state laws providing for DNA collection before conviction are unconstitutional. However, they reasoned that the prohibition on unreasonable searches and seizures in the Fourth Amendment to the U.S. Constitution compelled such action. The Vermont court relied entirely on a provision of the Vermont Constitution (Article 11).

Article 11 proclaims “That the people have a right to hold themselves, their houses, papers, and possessions, free from search or seizure.”  However, the Vermont Supreme Court has never taken this proclamation literally. Article 11 goes on to recognize that searches or seizures can proceed on the basis of “warrants ...  affording sufficient foundation,” and, as Medina noted, the Vermont Supreme Court has “import[ed]” into Article 11 “the ‘reasonableness’ criterion of the Fourth Amendment.”

But “reasonableness” does not usually entail a fact-specific balancing of individual and government interests. Indeed, this June, the Supreme Court disapproved of warrantless seizures and searches of cellphones notwithstanding the argument that they were just “incident to arrest.” In Riley v. California, the Court reiterated the rule that “[i]n the absence of a warrant, a search is reasonable only if it falls within a specific exception to the warrant requirement.”

So too, the Vermont court declared that under Article 11, “[w]arrantless searches are thus per se unreasonable” although “sometimes permitted.” And it pointed to its opinion in State v. Martin, a 2008 case upholding a post-conviction DNA database, on the theory “that using DNA to determine who committed a past crime is fulfilling an ordinary law enforcement purpose” but using it to link the same person to future crimes is a kind of “special need” for which a warrant is unnecessary as long as the state’s interests outweigh the convicted offender’s.

This is weird. Why should police have to get a warrant to search you when they suspect you of a past crime, but not when they think you might commit one in the future? Nevertheless, the Medina court used this distinction to apply a balancing test. That test, in the hands of Justice John Dooley and two justices who joined his opinion, had some unusual or questionable features.

First, it was a marginal balancing test. That is, the court asked how much extra future crime-fighting power taking DNA before conviction achieved. That is a sensible question for the legislature to weigh before enacting a DNA-on-arrest law (and to study later by having law enforcement agencies gather data on the efficacy of the law). But laws are often compromises, and it is almost always possible to envision less drastic alternatives. For example, a DNA-after-conviction law might include provisions for destroying most samples after the profiles are recorded or for deleting the profiles after a certain period of time. It might be restricted to adult offenders or to a smaller set of offenses. A strict less-drastic-alterative test could put the courts in the business of tweaking legislation. The U.S. Supreme Court has done so for the sake of protecting First Amendment rights but not Fourth Amendment ones.

Second, the Vermont balancing test considered some but not all of the state’s interests. Solving past crimes—through matches to DNA from old rape kits, for example—did not count. If one is going to balance at all, why not put all the relevant interests on the scale? To be sure, the standard interest in solving old crimes is not enough to overcome the individual interests in the security of the person in the absence of a well founded warrant. But that hardly means that it must be ignored when this categorical rule does not apply because the balance of all the state and individual interests may be different. 1/

Third, the majority used the fact that the statute required “expungement of the sample and profile when the adjudication is completed without a conviction of a qualifying crime” as a mark against it. According to these three justices, the legislature’s adoption of this less drastic alternative meant that it determined that it had less need for the samples from unconvicted suspects than from convicted ones. Does this mean that if the legislature re-enacts the law without providing for expungement, the case for upholding the law will be stronger? 2/

Fourth, on the individual side of the balance, Vermont’s justices believed that “each defendant’s privacy interest is greater [than it would be after a conviction] because he or she has not been convicted.” This is a mainstream view, but it seems like a category mistake. Why does your interest in personal security or privacy deserve less weight because you have been convicted of a crime? Certainly, the conviction can subject you to punishment—fines or imprisonment. But this is not because you have a lesser interest in retaining your money and your liberty than anyone else. The significance of the conviction is that the state’s general interests in deterrence, rehabilitation, or retribution carry more weight as applied to known offenders.

Fifth, the court rests its decision on the theory that “[t]he privacy interest of the preconviction defendant is greater than the interest of one who has been convicted because a preconviction defendant has a presumption of innocence.” But the legal presumption of innocence is an evidentiary doctrine that requires the state to prove guilt without relying on the fact that the defendant has been charged with the crime as if it indicates guilt. 3/  It has no bearing on the extent of any privacy interest. As we just noted, a conviction intensifies or focuses the state interests, permitting it to invade some privacy interests that it otherwise could not. Therefore, although the fact of a conviction is an important consideration in a reasonableness inquiry, the “presumption” adds nothing to the balancing test.

Sixth, Medina distinguished fingerprinting of arrestees from DNA sampling on two grounds. The majority thought that unlike DNA, “fingerprints can show only identification, and they have limited functionality in solving old cases.” These claims ignore the fact that fingerprint patterns are not without medical significance and that they routinely solve old cases. 4/ Just last year, the FBI’s criminal fingerprint database received hundreds of thousands of queries for possible matches to latent prints. Nonetheless, it is surely true that DNA samples contain far more socially and personally significant information than fingerprints. The response of most courts, and of course the U.S. Supreme Court in King, has been that statutory protections against accessing that kind of information are sufficient to satisfy a balancing test.

The Medina court disagreed. It stated that “[w]hile current law limits use of the sample, that law can be amended to allow greater use; the retention of the DNA sample suggests that expanded use is possible in the future.” But almost anything is possible in the future. Courts do not normally strike down otherwise constitutional laws because they might be amended in a manner that would make them unconstitutional.

If Vermont follows this unusual approach to constitutional analysis, its entire DNA database law might be unconstitutional under Article 11. Despite its effort to distinguish Martin, the earlier case on convicted-offender DNA collection, Medina observes that “Martin is silent on the storage of the sample, which is retained by the State, apparently indefinitely. ... Neither the statutory purposes, nor the State’s asserted justifications for the law, provide any rationale for retaining the DNA sample once the profile has been created.”

The majority apparently did not think that indefinite sample retention was so grave a risk to privacy as to invalidate the convicted-offender database system, but given the court's understanding of DNA databases, a stringent version of marginal balancing should have this effect. After all, if there is "no rationale" to retain samples indefinitely, and if the risk that the legislature will amend the law to permit the state to mine the samples for sensitive personal information is a weighty concern, there is no state interest to justify sample retention. Conversely, could the legislature revive the part of its law that the court struck down by providing for prompt destruction of those samples? At that point, what basis would the court have to insist that DNA identification is dramatically different from fingerprint identification?

Notes

1. See, e.g., David H. Kaye, Why So Contrived? DNA Databases After Maryland v. King, 104 J. Crim. L. & Criminology (forthcoming August 2014), early draft available at http://ssrn.com/abstract=2376467.

2. Cf. David H. Kaye, Drawing Lines: Unrelated Probable Cause as a Prerequisite to Early DNA Collection, 91 N.C. L. Rev. Addendum 1 (2012), http://ssrn.com/abstract=2064074.

3. David H. Kaye, A Fourth Amendment Theory for Arrestee DNA and Other Biometric Databases, 15 U. Pa. J. Const. L. 1095 (2013), available at http://ssrn.com/abstract=2043259; David H. Kaye, Associational Privacy, the Presumption of Innocence, and “Corruption of Blood” as Constitutional Metaphors in the Debate on “Familial Searching,” Amer. Crim. L. Rev. (Nov. 26, 2012), http://ssrn.com/abstract=2269047

Earlier Posting on State v. Medina

State v. Medina: Can the Vermont Supreme Court Overrule the U.S. Supreme Court on DNA Databases? July 11, 2014, http://for-sci-law-now.blogspot.com/2014/07/state-v-medina-can-vermont-supreme.html

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