The Police Can Go Inside You, Now. Maryland v. King DNA Case Analysis

Start with the presumption that a search without a warrant is an unreasonable search and is prohibited by your 4^th Amendment right to be free from unreasonable search and seizure.

Start with the presumption that the police cannot search you for no reason, and that’s a good thing.  It’s a good thing for the same reason that the government putting a microchip under your skin is a bad thing. 

On top of those presumptions we can find some common ground.  Traditionally, people on both sides of this conversation agree that 4^th Amendment law is a balancing act.  Courts should weigh the privacy rights of individual citizens against the need for governmental intrusion.  If the privacy right is more important than the government need for intrusion, the intrusion should not be allowed. 

Let’s talk about intrusion.  On one end of the spectrum is the drug dog sniff.  In our scenario, we’ll say you pack a suitcase, go to the airport and prepare to board a plane.  As you pass through the terminal on your way to your gate, a uniformed officer walks a German Shepherd against the grain of pedestrian traffic.  Nobody is stopped.  Everybody is sniffed.

This type of governmental intrusion is minimal.  The police don’t stop you.  They don’t search your clothes.  Your baggage isn’t opened and you go about your business.

Moving up the spectrum of intrusion, you have things like: Police officers looking into the windows of your vehicle in a public parking lot; A roadblock DUI safety checkpoint that only lasts about 30 seconds of stop time; Police search of the cartilage around your home; Search of the inside of your home; Stop and Frisk search to make sure someone isn’t armed and dangerous; Strip Search to ensure you aren’t hiding contraband; and lastly, and most invasively, the search of a human body inside the human body.

For the most part, it is conceded on both sides of the argument, that the search of a person generally requires individual suspicion that THAT PERSON has committed a crime.  For the purpose of today’s argument, we’ll say that if the person is already in custody, the standard is whether it is reasonable – based on whether the promotion of government interest outweighs the degree to which the search intrudes on a person’s privacy.

Now let’s get down to the recent Supreme Court Ruling.  The case is called “Maryland v. King” and was decided by 5-4 vote on June 3, 2013.  Since there are 9 Supreme Court Justices, that means that this is the most narrow margin by which a case can be decided.  That should tell you something about how heated the debate can be, and how grey this subject can be.

Basically, King was arrested in Maryland.  After he was booked and arraigned a few days later, he was forced to give a buccal swab, pursuant to the Maryland DNA Collection Act.  That means that some officer took what is essentially a big Q-Tip, and ran it across the inside of King’s mouth, in order to collect a sample of his DNA.

Months later, they matched King’s DNA in a central database against a DNA sample taken from a victim in an unsolved rape case.  King was then tried and convicted of rape – then challenged the search procedure of taking his DNA by buccal swab after arraignment.

Some of you at this point are thinking “Well I don’t give a shit whether the police did something wrong – that guy’s a rapist and I’m glad he got punished.” 

Raise your hands if you think Rape is bad and it should be punished.  Ok – all of you?  Good.  Me too.

Now that we’ve all agreed that rape is bad, we can set that aside for a moment and have a legitimate intellectual discussion about the means of governmental intrusion versus privacy interests at stake.  Because if your analysis of government intrusion ends with “crime is bad” then you should go live somewhere else where freedom and privacy aren’t valued, and the police can do anything they’d like to maintain what the government considers to be “order.”  Try Germany around 1940.

The Supreme Court in King upheld the Maryland law regarding DNA collection of people in custody, post-arraignment.  In the opinion, written by Justice Kennedy, the Court called the buccal swab of the inside of a body orifice “negligible.”  Then they went on to say that the search was akin to fingerprinting – which is helpful to identify suspects in custody.

There was a strong dissent to the case, written by Scalia.  For those of you who don’t follow the Supreme Court Of the United States (“SCOTUS” if you’re a law nerd), Justice Scalia is a pretty strict conservative (some of my law nerd friends are smirking right now about that understatement).  And in the dissent, Scalia joins some relatively liberal individuals, including Clinton nominated Justice Ginsburg, and Obama nominated Justices Sotomayor, and Kagan.

Scalia goes on and on about the major difference between DNA collection and matching, and fingerprint analysis.  The difference is pretty huge and Scalia points out how the majority is pretty misleading by saying the 2 are alike.  On one hand, fingerprinting is used primarily for identifying people who are ALREADY suspected of criminal activity.  Often, people who are in custody and need to be identified.  On the other hand, the Maryland law allows the DNA collection for INVESTIGATIVE purposes.  To try to solve crimes, for which there are no suspects.  For example, they did not suspect King of the 2003 rape (for which he was later convicted) when they collected his DNA.

That is a pretty big difference, especially since we’re talking about 2 different government interests.  The first is the interest in identifying someone that police already have reason to suspect of illegal activity.  The second is just broad, investigative purposes.  Normal law enforcement needs.

Scalia said: [t]here is a “closely guarded category of constitutionally permissible suspicionless searches,” (Chandler v. Miller, 520 U. S. 305, 309 (1997) 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).

Scalia makes some very good points, but my beef with the ruling is on the flipside of the coin – the privacy interest. 

You know how people use the phrase “You gotta draw the line somewhere.”?  That line, I submit to you, when it comes to extra scrutiny for invasive police searches, is when the police want to go INSIDE your body.  Regardless of where they want to go.

Inside the body is the most private of areas.  It is a place that, no matter where you are, you have the most reasonable expectation of privacy.  Inside you.

The Supreme Court acted like the search was no big deal.  Negligible.

That’s a problem for me.

And let’s take a little detour here.  If the police suspect you of a crime, they can get a warrant to go inside your body.  They can get your blood drawn or a buccal swab done to match your DNA left at a crime scene if they have probable cause to believe you committed a crime.  So I’m not saying that police should never be able to get your DNA.  I’m saying that they shouldn’t be allowed to go inside a person’s body if they don’t have (at the very least) an individualized suspicion that YOU committed a crime that they are investigating.

Going inside your body is not “negligible.”  It is a big deal.  There was a time when the Supreme Court believed that virtually any intrusion into the human body would be considered an invasion of cherished personal security, that is subject to constitutional scrutiny.  That time was in 1968, in Terry v. Ohio.  The strange thing is that the Supreme Court actually QUOTES the above language in the body of the King Opinion, but FAILS to apply it to the buccal swab search which intrudes into an orifice inside your body.

I think the Supreme Court (and Scalia, for that matter) could have spent some more time on the degree of intrusion into the body, and that they most certainly should have given it more respect.  And a higher degree of protection.

The bottom line for me is this:  When you balance the most intrusive of intrusions against the normal need for law enforcement, you should protect the inside of the human body.  That's why Maryland v. King is a bad ruling.

Anyway, some of you have got to be bored to tears by now.  And I’ve got to get some actual work done. 

So if you have questions, hit a brotha up.  My door is always open.  502-618-4949.