In October of last year, I wrote “Buccal Swab ‘Booking Procedures’: Lower Courts Struggle to Apply Maryland v. King,” a blog post outlining some potential problems with the reasoning in Maryland v. King, the landmark DNA collection case handed down by the Supreme Court last June. At the time, I focused on federal district court interpretations of King, but appeals courts have also begun ruling on these cases. On March 20, 2014, the Ninth Circuit, sitting en banc, issued an opinion in Haskell v. Harris upholding California’s broad DNA Collection Act.
Haskell arose from a challenge to California’s Proposition 69, which was approved by voters in November 2004
and codified at Cal. Penal code § 296(a)(2)(C). This statute requires a DNA sample be taken
from any person arrested for any felony, including an attempted felony. The DNA collection occurs during booking, or
as soon as possible thereafter, but in any case before the arrestee is released
from State custody. The law does not require a judicial officer to determine probable cause before the sample may be entered into a database,
and the State of California may retain the sample indefinitely, even if the
individual is acquitted or never charged.
The
lead plaintiff in this case, Lily Haskell, was arrested for allegedly trying to
free a prisoner at a peace rally. She was taken into custody and ordered to
provide a DNA sample, and after she cooperated she was not charged. The other plaintiff, Reginald Ento, was
arrested for possession of stolen property, a sample was taken, and he was
released and all charges dropped. They sought an injunction under 42 U.S.C. §
1983 for deprivation of their Fourth and Fourteenth Amendment rights, which the
trial court denied. In February 2012, a
three-judge panel of the Ninth Circuit affirmed the trial court in an opinion
by Judge Milan Smith (who would write a separate concurrence to the en banc
court’s later decision), and the case remained at
the Ninth Circuit for two years, held in abeyance while the Court waited for Maryland v. King to be handed down.
The
statute at issue here is much broader than the one the Supreme Court considered
in King, both in the broad sweep
of offenses covered by the law and in the narrow protections it offers
arrestees. Notably, had Haskell or Ento
been arrested in Maryland, their DNA could not have been kept in the state
database. First, neither charged crime
would have been considered a “crime of violence” under Maryland state law. Second, Haskell was never charged and Ento’s
charges were all dropped, which would have required Maryland to expunge the samples.
Haskell, then, has provided the
first opportunity for a federal court of appeals to apply the holding of Maryland v. King to a broader statute. Unsurprisingly, in a per curiam opinion, the Court upheld the California statute against a facial challenge, though it
remanded the case so that plaintiffs could raise an as-applied challenge. It reached this decision quickly and without
much discussion, as even the plaintiffs’ attorney conceded that the law could
be constitutionally applied to some
felony arrestees.
More
notable, however, was Judge Smith’s concurrence. He concurred in the majority’s disposition,
but wrote separately to emphasize that “California’s DNA collection law is
materially indistinguishable from the Maryland law upheld in [King]. . . the purported distinctions
that Plaintiffs identify are illusory.” He identifies four distinctions between the
two laws and explains why each of these distinctions were not relevant to the
Supreme Court in King.
First, the plaintiffs argued that King only
applied to “serious offenses”, that is, crimes of violence, burglary, or
attempts at either. Judge Smith first
questioned this distinction, noting that “a felony is, of course, a serious
crime” – all felonies can be considered “serious offenses.” Beyond that, however, the Court’s reasoning in
King simply did not lend itself to
distinguishing one type of crime from another. The State’s interest is the same in every case,
“identifying the arrestee not only so that the proper name can be attached to
his charges but also so that the criminal justice system can make informed
decisions concerning pretrial custody.” Indeed, the King majority pointed out that “people detained for minor offenses can turn out to be the most devious and dangerous criminals” – Timothy McVeigh
was found by a state trooper who noticed he was driving without a license plate
(not a felony).
Second, plaintiffs argued that California (a) could not constitutionally collect DNA from arrestees who are never charged, and (b) that a judicial officer should
determine probable cause before a sample can be analyzed, as is the case in
Maryland. Judge Smith noted that the arrest itself
permitted Maryland (and so, California) to collect DNA, and that the Court did not care what the State did after arrest. The government’s identification interest
“attaches when the individual is brought into custody,” regardless of what
happens next.
Finally,
the plaintiffs objected to California’s reluctance to expunge DNA samples
absent a conviction –Maryland is required to expunge samples automatically absent a conviction. Judge Smith pointed out that the Supreme Court
in King hardly mentioned
expungement, and concluded that it was not constitutionally relevant to the Fourth Amendment question. After all, the “search” at issue was the
buccal swab itself, and the “minor intrusion” of a buccal swab is unaffected by
what happens at expungement.
In conclusion, though lower courts were the first to struggle to
apply
King, federal appeals courts have
also been faced with the mismatch between the Supreme Court’s narrow holding
and its broad reasoning. We should not
be surprised to see more circuit courts follow Judge Smith’s lead, adopting the
Court’s broad rationale rather than its narrow holding. Practitioners should be
aware of this dichotomy and tailor arguments either towards a broad
analysis-based reading (in favor of the State) or a narrow holding-based
reading of the case (in favor of defendants). Though courts have reached mixed
interpretations of King, they usually
favor the former analysis-based reading, to the benefit of the government.
Ryan Watson
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