Maryland v. King – Oral Argument – February 26, 2013

Media for Maryland v. King

Audio Transcription for Opinion Announcement – June 03, 2013 (Part 2) in Maryland v. King
Audio Transcription for Opinion Announcement – June 03, 2013 (Part 1) in Maryland v. King

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John G. Roberts, Jr.:

We will hear argument next this morning in Case 12-207, Maryland v. King.

Ms. Winfree?

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.

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.

[Laughter]

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.

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.

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.

Sonia Sotomayor:

And yet, he was detained anyway, correct?

Katherine Winfree:

He was detained anyway.

Sonia Sotomayor:

And — and there might be a case where someone’s gotten out, but it would be the rare case.

Katherine Winfree:

Well–

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–

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?

Audio Transcription for Opinion Announcement – June 03, 2013 (Part 1) in Maryland v. King

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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.

John G. Roberts, Jr.:

Your procedure limits the collection to certain violent offenses, right?

Katherine Winfree:

It does, Mr. Chief Justice.

John G. Roberts, Jr.:

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–

John G. Roberts, Jr.:

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.

John G. Roberts, Jr.:

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–

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.

Audio Transcription for Opinion Announcement – June 03, 2013 (Part 1) in Maryland v. King

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Katherine Winfree:

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–

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–

Antonin Scalia:

I do.

[Laughter]

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.

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.

Elena Kagan:

It doesn’t have the right to search your car for evidence of unrelated crimes.

Katherine Winfree:

That’s correct.

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–

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.

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.

Audio Transcription for Opinion Announcement – June 03, 2013 (Part 1) in Maryland v. King

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Elena Kagan:

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.

And that–

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 Samson.

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–

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.

Sonia Sotomayor:

There’s no other case but Samson in that line that permits searches on this balancing.

Katherine Winfree:

Well–

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.

Stephen G. Breyer:

Can I ask you a particular specific quick question?

Katherine Winfree:

Yes, Justice Breyer.

Audio Transcription for Opinion Announcement – June 03, 2013 (Part 1) in Maryland v. King

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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.

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.

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.

Stephen G. Breyer:

And whether they also can take DNA, that’s the issue.

Katherine Winfree:

That’s correct, Justice Breyer.

Stephen G. Breyer:

Okay.

Nothing else.

Thank you.

Katherine Winfree:

If there are no further questions, I’ll reserve the remainder of my time for rebuttal.

John G. Roberts, Jr.:

–Thank you, counsel.

Mr. Dreeben?

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.

John G. Roberts, Jr.:

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.

Audio Transcription for Opinion Announcement – June 03, 2013 (Part 1) in Maryland v. King

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John G. Roberts, Jr.:

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–

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–

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–

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–

Audio Transcription for Opinion Announcement – June 03, 2013 (Part 1) in Maryland v. King

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Samuel A. Alito, Jr.:

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.

Samuel A. Alito, Jr.:

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.

Samuel A. Alito, Jr.:

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–

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.

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.

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.

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–

Ruth Bader Ginsburg:

Mr. Dreeben, can you explain how it works, mechanically?

Audio Transcription for Opinion Announcement – June 03, 2013 (Part 1) in Maryland v. King

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Ruth Bader Ginsburg:

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.

John G. Roberts, Jr.:

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.

John G. Roberts, Jr.:

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.

Sonia Sotomayor:

That doesn’t explain why you can’t go into his home.

Michael R. Dreeben:

Yes, it does, 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–

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.

It’s identical–

John G. Roberts, Jr.:

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.

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.

Audio Transcription for Opinion Announcement – June 03, 2013 (Part 1) in Maryland v. King

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Michael R. Dreeben:

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.

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–

Sonia Sotomayor:

The key principle is the Fourth Amendment–

Anthony M. 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–

Anthony M. Kennedy:

Why isn’t this is a search incident to an arrest?

Michael R. Dreeben:

–It is certainly a search–

Anthony M. 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–

Antonin Scalia:

Yes, but our — our search incident to arrest cases don’t allow that.

That’s sort of the point.

Audio Transcription for Opinion Announcement – June 03, 2013 (Part 1) in Maryland v. King

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Antonin Scalia:

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–

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.

Thank you.

John G. Roberts, Jr.:

Thank you, Mr. Dreeben.

Mr. Shanmugam?

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–

Anthony M. Kennedy:

He was held — he was held with probable cause–

Kannon K. Shanmugam:

–That is correct.

Anthony M. Kennedy:

–and his — and his custody was restrained.

He was in a police station.

Kannon K. Shanmugam:

That is also correct.

Anthony M. 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.

Anthony M. Kennedy:

But they — they could — they could have been.

Kannon K. Shanmugam:

Yes.

Audio Transcription for Opinion Announcement – June 03, 2013 (Part 1) in Maryland v. King

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Anthony M. 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–

Anthony M. 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.

The government–

Anthony M. 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.

John G. Roberts, Jr.:

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.

John G. Roberts, Jr.:

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–

John G. Roberts, Jr.:

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–

John G. Roberts, Jr.:

No, it’s not a–

Kannon K. Shanmugam:

–the privacy interest.

John G. Roberts, Jr.:

–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.

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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–

John G. Roberts, Jr.:

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–

John G. Roberts, Jr.:

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.

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.

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.

Samuel A. Alito, Jr.:

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.

Samuel A. Alito, Jr.:

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.

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Kannon K. Shanmugam:

Now, we–

Samuel A. Alito, Jr.:

–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–

Samuel A. Alito, Jr.:

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–

Samuel A. Alito, Jr.:

–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.

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–

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.

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Stephen G. Breyer:

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.

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–

Stephen G. Breyer:

Now, you tell me in light of that hostile question–

[Laughter]

–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.

Antonin Scalia:

He gave us one and two.

I have been waiting for three.

Will you drop the shoe?

[Laughter]

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.

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.

Anthony M. 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.

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Kannon K. Shanmugam:

The primary–

Anthony M. 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.

Anthony M. Kennedy:

But they also have a reason for keeping him in custody.

Kannon K. Shanmugam:

Related–

Anthony M. 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.

John G. Roberts, Jr.:

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.

John G. Roberts, Jr.:

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.

John G. Roberts, Jr.:

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.

And ordinary–

John G. Roberts, Jr.:

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–

John G. Roberts, Jr.:

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.

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John G. Roberts, Jr.:

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.

Anthony M. 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–

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.

Samuel A. Alito, Jr.:

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–

Samuel A. Alito, Jr.:

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–

Sonia Sotomayor:

Can we go back to–

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Samuel A. Alito, Jr.:

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–

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.

Stephen G. Breyer:

What does it do?

Kannon K. Shanmugam:

We think it means determining or confirming the identity of an individual.

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.

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–

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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–

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.

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–

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–

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.

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.

All right?

And so the government puts that system into effect.

Is it constitutional?

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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–

Sonia Sotomayor:

I was interested in a broader thought process, actually.

Do you mind giving it to me?

Kannon K. Shanmugam:

–Well–

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.

John G. Roberts, Jr.:

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–

Samuel A. Alito, Jr.:

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–

Samuel A. Alito, Jr.:

But your client was convicted of the offense of arrest.

Kannon K. Shanmugam:

–That is correct.

Samuel A. Alito, Jr.:

And it was a serious offense punishable by up to 10 years imprisonment–

Kannon K. Shanmugam:

Well, my client–

Samuel A. Alito, Jr.:

–Isn’t that correct?

And he was sentenced to 4 years.

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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.

Samuel A. Alito, Jr.:

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–

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.

Anthony M. 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–

Anthony M. 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.

John G. Roberts, Jr.:

Thank you, counsel.

Ms. Winfree, you have 3 minutes remaining.

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.

Audio Transcription for Opinion Announcement – June 03, 2013 (Part 1) in Maryland v. King

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Katherine Winfree:

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.

John G. Roberts, Jr.:

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.

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.

John G. Roberts, Jr.:

Thank you, counsel.

The case is submitted.