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Is Obtaining an Arrestee's DNA a Valid Special Needs Search under the Fourth Amendment? What Should (and Will) the Supreme Court Do?
Published online by Cambridge University Press: 01 January 2021
Extract
In the past twenty years, advances in forensic DNA technology have revolutionized the American criminal justice system. The use of forensic DNA testing in America began in 1987, and its demonstrated scientific accuracy quickly led jurisdictions to accept expert testimony regarding DNA matches between suspects and crime scene evidence. Wielding the power to exonerate the innocent and apprehend the guilty, the use of DNA identification technology has become an indispensable resource for prosecutors and law enforcement officials, as well as for defense lawyers representing persons falsely accused or wrongfully convicted of crimes they did not commit. As states began to compile DNA profiles from convicted offenders, the need for a repository for these profiles resulted in the DNA database.
Originally, DNA databases included only “those classes of offenders with a high recidivism rate, such as sex offenders and violent felons.” Recognizing the crime-solving potential of this technology, state legislatures soon began to expand the scope of DNA database statutes to include broader classes of offenders.
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See e.g., Scherer, , supra note 83, at 2021. The author notes that the information obtained from DNA is much more extensive than the information obtained from the drug and alcohol tests in Skinner and its progeny. First, unlike drug or alcohol tests which measure the concentration of a substance at a particular point in time, “DNA analysis maps immutable, lifelong characteristics of an individual. Indeed, immutability is what makes DNA such an ideal identifier.” Id. Moreover, while the tests done in Skinner “garnered information solely about the government employee, the information revealed in a DNA analysis is not unique only to that donor. Information from a donor's genome also reveals the private concerns of the donor's parents, children, and siblings.” Id. (footnote omitted).Google Scholar
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See, e.g., Saltzburg, S. A. and Capra, D. J., (7th ed.) American Criminal Procedure: Cases and Commentary (2004): at 412. Professors Saltzburg and Capra explain that in Chandler v. Miller, 520 U.S. 305 (1997), the Court second-guessed the effectiveness of a drug-testing policy aimed at candidates for political office, but note that “such second-guessing was missing in the Court's previous cases, and in the subsequent case of [Board of Ed. of Independent School Dist. No. 92 of Pottawatomie County. v. Earls, 536 U.S. 822 (2002)]. Saltzburg and Capra also observe that it is “no surprise that drug-testing cases are all over the map after Chandler.” Id. (listing lower court rulings with differing results on the constitutionality of drug-testing of certain employees who perform work for governmental entities).Google Scholar
Id. at 431 (after discussing the many special needs cases, asking “[w]here is the line, then, between crime enforcement and special needs.”) Professor Kaye also notes that lower court judges “have disagreed as to the applicability of the ‘special needs’ exception to convicted-offender DNA databanking.” Kaye, , “DNA Sampling on Arrest,” supra note 83, at 491 (listing cases) (footnote omitted); see also Kincade, , 379 F.3d at 832 (plurality opinion) (upholding suspicionless searches of certain conditionally-released federal offenders mandated by the DNA Analysis Backlog Elimination Act of 2000, Pub. L. No. 106-546, 114 Stat. 2726 (2000), under a “totality of the circumstances” test, “[w]hile not precluding the possibility that the [searches] could satisfy a special needs analysis”); id. at 840 (Gould, J., concurring) (upholding DNA testing of federal offenders under special needs exception); id. at 856 (Reinhardt, J., dissenting) (arguing that “primary purpose in conducting searches pursuant to the DNA Act is to generate evidence capable of assisting ordinary law enforcement investigations,” which is “the paradigmatic search condemned by the special needs doctrine”).Google Scholar
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See, e.g., Carnahan, , supra note 83, at 15 (describing Edmond as a special needs case which “casts doubt on much, if not all, of the reasoning of the prior [lower court] DNA cases, placing some squarely in conflict”); Kaye, , “DNA Sampling on Arrest,” supra note 83, at 490, n.152 & 154. See also, Kincade, 379 F. 3d at 825 (plurality opinion) (describing Edmond as a special needs case); id. at 853, n.9 (Reinhardt, J. dissenting) (describing Edmond and Burger as special needs cases).Google Scholar
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Id. at 351 (Blackmun, J., concurring in judgment).Google Scholar
See id. at 351 (noting that the Court has “used such a balancing test, rather than strictly applying the Fourth Amendment's Warrant and Probable-Cause Clause, only when we were confronted with ‘a special law enforcement need for greater flexibility.’”) (citation omitted).Google Scholar
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Id. at 353 (“The special need for an immediate response to behavior that threatens either the safety of schoolchildren and teachers or the educational process itself justifies the Court in excepting school searches from the warrant and probable-cause requirement, and in applying a standard determined by balancing the relevant interests.”)Google Scholar
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Id. at 538. See also See v. City of Seattle, 387 U.S. 541 (1967) (applying principles announced in Camara to fire inspection of a commercial warehouse). For the classic explanation of Camara, see LaFave, W. R., “Administrative Searches and the Fourth Amendment,” Supreme Court Review (1967): 1–38.CrossRefGoogle Scholar
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Id. (“In contrast to law enforcement officials, therefore, public employers are not enforcers of the criminal law; instead, public employers have a direct and overriding interest in ensuring that the work of the agency is conducted in a proper and efficient manner.”)Google Scholar
Id. at 725–26. Although Justice Scalia objected to certain aspects of Justice O'Connor's plurality, he did agree with her decision to apply Justice Blackmun's special needs formula. See id. at 732 (Scalia, J., concurring in the judgment) (“Such ‘special needs’ are present in the context of government employment…. I would hold that government searches to retrieve work-related materials or to investigate violations of workplace rules – searches of the sort that are regarded as reasonable and normal in the private-employer context – do not violate the Fourth Amendment.”)Google Scholar
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Id. at 741 (emphasis added).Google Scholar
Id. at 742. While Justice Blackmun concluded that the facts presented no special need for dispensing with the warrant requirement, his comments implied that he might be willing to find that certain public employer searches of employees are consistent with the special needs exception. See also, Schulhofer, , supra note 126, at 101–102 (noting that Justice Blackmun “agreed that some employer searches could be valid under a diluted standard, but found no ‘special need’ in Ortega itself.”)Google Scholar
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Id. Four Justices dissented in Griffin. Writing for the dissenters, Justice Blackmun argued that the “need for supervision in probation” presents a special need beyond the normal need for law enforcement. Id. at 881 (Blackmun, J., dissenting). Accordingly, Justice Blackmun argued that a special need justified a search of probationer's home on a lesser level of suspicion than probable cause, namely, reasonable suspicion. But he would require that such a search be authorized by a judicial warrant as a means of “protecting a probationer's privacy.” Id. at 882.Google Scholar
Two aspects of Griffin indicated that a majority of the Court in 1987 would apply the special needs exception with consider leeway in favor of the state. First, although the Court ruled that the search of Griffin's home was reasonable because, inter alia, it was done pursuant to an administrative regulation that required “reasonable grounds” for a search, the facts in Griffin provided, at best, a “feeble justification” for a search. Griffin, 483 U.S. at 887–90 (Blackmun, J., dissenting) (explaining that the facts did not justify a search even under a reasonable suspicion standard). Second, the clear presence of a law enforcement motive for the challenged search did not negate the applicability of the special needs exception. As Justice Scalia would subsequently acknowledge years later, “the special-needs doctrine was developed, and is ordinarily employed, precisely to enable searches by law enforcement officials who, of course, ordinarily have a law enforcement objective” for their searches. Ferguson 532 U.S. at 100 (Scalia, J., dissenting). A majority of the current Court, however, has not embraced Justice Scalia's position. See infra notes 186–204 and accompanying text.Google Scholar
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489 U.S. 656 (1989).Google Scholar
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Id. at 621, n.5. (“each sample provided under [the regulations]… may be available to…a party in litigation upon service of appropriate compulsory process on the custodian”), quoting 49 C.F.R. § 219.211(d) (1987). The revised version of 49 C.F.R. § 219.211(d) omits any reference to making test results available to third parties in litigation.Google Scholar
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Professor Schulhofer does recognize that “[r]outine law enforcement involvement [and access to test results], together with slender or half-hearted regulatory and remedial goals, would indicate that the administrative features of the program were merely pretextual. If so, the program would not involve ‘special needs, beyond the normal need for law enforcement,’ and the probable cause requirement would have to apply.” Id.Google Scholar
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See Schulhofer, , supra note 126, at 140 (“In one sense, Von Raab presents a stronger case for administrative treatment [than Skinner] because law enforcement use of test results was prohibited. Von Raab appears to involve a purely employment-related program.”)Google Scholar
See Von Raab, 489 U.S. at 667 (under the policy, “every employee who seeks a transfer to a covered position knows that he must take a drug test, and is likewise aware of the procedures the Service must follow in administering the test. A covered employee is simply not subject ‘to the discretion of the official in the field.’ The process becomes automatic when the employee elects to apply for, and thereafter pursue, a covered position.”)Google Scholar
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515 U.S. 646 (1995).Google Scholar
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Id. at 309. Only Chief Justice Rehnquist dissented from the majority opinion.Google Scholar
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Id. at 322. Interestingly, in dicta, Justice Ginsburg noted that “where the risk to public safety is substantial and real, blanket suspicionless searches calibrated to the risk may rank as ‘reasonable’ – for example, searches now routine at airports and at entrances to courts and other official buildings.” Id. at 323 (citations omitted) (emphasis added).Google Scholar
Ferguson, 532 U.S. at 78. The previous cases Justice Stevens had in mind were Chandler, Acton, Skinner, and Von Raab. See id., at 78, n.12 (citing cases).Google Scholar
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Justice Ginsburg's opinion on this point marks a change in the law. As Chief Justice Rehnquist noted in his dissent, prior special needs cases had not required the state to establish that its interest was especially important. “Under [previous] precedents, if there was a proper governmental purpose other than law enforcement, there was a ‘special need,’ and the Fourth Amendment then required the familiar balancing between that interest and the individual's privacy interest.” Id. at 325 (Rehnquist, C.J., dissenting). Cf. Ferguson, 532 U.S. at 81 (“In Chandler,…we did not simply accept the State's invocation of a ‘special need.’ Instead, we carried out a ‘close review’ of the scheme at issue before concluding that the need in question was not ‘special,’ as that term has been defined in our cases.”)Google Scholar
Justice Kennedy voted to invalidate the policy in Ferguson, but claimed that the majority's distinction between “the ultimate goal and immediate purpose” of the government interests pursued, “lacks foundation” in the Court's special needs cases. Ferguson, 532 U.S. at 86–87. According to Kennedy, all of the special needs cases “have turned upon what the majority terms the policy's ultimate goal.” Id. at 87. Put simply, in deciding whether special needs exist in a particular setting, the Court has always focused on the ultimate goal in carrying out the search, “rather than its proximate purpose.” Id. As Kennedy noted, “although procuring evidence is the immediate result of a successful search, until [Ferguson] that procurement has not been identified as the special need which justifies the search.” Id. at 88.Google Scholar
Id. at 81 (quoting Edmond, 531 U.S. at 44).Google Scholar
Id. at 84, n.20. See also id. at 88 (Kennedy, J., concurring in judgment) (noting that earlier cases did not sanction “the routine inclusion of law enforcement, both in the design of the policy and in using arrests, either threatened or real, to implement the system designed for the special needs objectives.”)Google Scholar
See id. at 81, n.15 (stating that Griffin “is properly read as limited by the fact that probationers have a lesser expectation of privacy than the public at large.”)Google Scholar
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A good argument can be made that Burger was never intended to be a special needs case. While Burger makes a single reference to the special needs exception, see 482 U.S. at 702, (after describing the lesser privacy interests of vehicle dismantlers, “conclud[ing] that, as in other situations of ‘special need,’” a warrantless search may well be reasonable), the bulk and substance of the Court's analysis is focused on administrative search precedents. Further, Burger never identifies a particular “special need” that justifies the suspicionless search authorized by the statute. Thus, although in a previous article I wrote that the Burger Court “invoked the special needs doctrine to uphold a New York law authorizing warrantless, suspicionless searches of automobile junkyards,” Maclin, T., “Constructing Fourth Amendment Principles From The Government Perspective: Whose Amendment Is It, Anyway?” American Criminal Law Review 25 (1988): 669–742, at 735, in retrospect, that description was probably mistaken. Although Burger certainly shares many similarities to the modern special needs cases, I now believe that Burger is properly categorized with the administrative search cases.Google Scholar
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Id. at 40. In another passage, Justice O'Connor noted the Court's reluctance to “recognize exceptions to the general rule of individualized suspicion where governmental authorities primarily pursue their general crime control ends.” Id. at 43. Standing alone, Edmond appeared to establish a broad rule against roadblocks designed to serve the state's “general interest in crime control.” Four years later, however, the Court demonstrated that the phrase “general crime control” would not be broadly construed. In Illinois v. Lidster, 124 S. Ct. 885 (2004), the Court upheld a roadblock where police stopped cars to ask motorists for information about a crime that occurred at the same location one week earlier. Lidster was seized at the roadblock, arrested for driving under the influence of alcohol, and subsequently prosecuted. The Lidster Court distinguished this roadblock from the illegal roadblock in Edmond because the primary purpose “was not to determine whether a vehicle's occupants were committing a crime, but to ask vehicle occupants, as members of the public, for their help in providing information about a crime in all likelihood committed by others. The police expected the information elicited to help them apprehend, not the vehicle's occupants, but other individuals.” 124 S. Ct. at 889. Lidster demonstrates that Edmond's use of the phrase “general interest in crime control” does not cover “every ‘law enforcement’ objective.” Id. (quoting Edmond, 531 U.S. at 44, n.1).Google Scholar
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Id. at 47, n.2; see also id. (“Specifically, we express no view on the question whether police may expand the scope of a license or sobriety checkpoint seizure in order to detect the presence of drugs in a stopped car.”)Google Scholar
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Kaye, , “DNA Sampling on Arrest,” supra note 83, at 496 (noting that “neither Edmond nor Ferguson reaches the more vexing question of what evidence can be used to infer purpose when the government contends that its immediate purpose in instituting an investigative practice is something other than (or in addition to) pure crime control”) (footnote omitted). It is important to note that Edmond's analysis will not be controlling in a special needs context. Although the Court's roadblock cases are sometimes lumped together with the special needs cases, Ferguson clarified that the Court's roadblock cases and special needs cases are separate doctrinal categories. Ferguson, 532 U.S. at 84, n.21.Google Scholar
Ferguson, 532 U.S. at 81 (quoting Edmond, 531 U.S. at 44).Google Scholar
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Timberg, , supra note 46.Google Scholar
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Ortega, 480 U.S. at 724 (plurality opinion). See also Von Raab, 489 U.S. at 679 (“Because the testing program adopted by the Customs Service is not designed to serve the ordinary needs of law enforcement…[w]e hold that the suspicionless testing of employees who apply for promotion to positions directly involving the interdiction of illegal drugs, or to positions that require the incumbent to carry a firearm, is reasonable.”) See also, Skinner, 489 U.S. at 621 (in upholding urinalysis testing of covered railroad employees, the Court stated “[a]bsent a persuasive showing that the FRA's testing program is [designed to gather criminal evidence], we assess the FRA's scheme in light of its obvious administrative purpose.”)Google Scholar
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Cf. Rothstein, & Carnahan, , supra note 83, at 154 (stating that “Edmond and Ferguson raise serious Fourth Amendment concerns with respect to the constitutionality of the data bank laws, and even greater concerns as to the constitutionality of state statutes that require DNA from certain classes of offenders upon arrest”) (footnote omitted). Finally, it should be noted that characterizing DNA searches of arrestees as a “public safety” goal should not justify application of the special needs exception. In many instances, the line between “public safety” and law enforcement is imperceptible. For example, in Bourgeois v. Peters, 387 F.3d 1303 (11th Cir. 2004), organizers of an annual protest at a military base challenged a police policy requiring all protesters to undergo metal detector searches. The city argued the searches were valid under the special needs exception because they keep protesters and others safe by detecting weapons and other contraband. The court rejected the city's argument. Speaking for the court, Judge Tjoflat explained that “it is difficult to see how public safety could be seen as a governmental interest independent of law enforcement; the two are inextricably intertwined.” Id. at 1312–1313.Google Scholar
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See id. at 650 (Marshall, J., dissenting) (“Most strikingly, the agency's regulations not only do not forbid, but, in fact, appear to invite criminal prosecutors to obtain the blood and urine samples drawn by the [agency] and use them as the basis of criminal investigations and trials.”) (citation omitted).Google Scholar
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Cf. Kaye, , “Two Fallacies,” supra note 83, at 191 (“there is plenty of empirical evidence that bigger data bases solve more crimes”) (footnote omitted).Google Scholar
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Cf. 5 LaFave, supra note 215, § 10.3(b) at 115 (noting that the police involvement in Griffin was at the request of the probation officer to “provid[e] protection,” and thus was “unobjectionable,” and also observing that the Court “did not have occasion to speak to the limits of police involvement in probationer searches in Griffin, but surely there are limits, as is reflected by the existing body of law [from the lower courts] on that subject”) (footnotes omitted); Burger, 482 U.S. at 717 (explaining that there is no “constitutional significance in the fact that police officers, rather than ‘administrative’ agents, are permitted to conduct the [administrative search]”).Google Scholar
Ferguson, 532 U.S. at 88 (Kennedy, J., concurring in judgment) (explaining that “there was substantial law enforcement involvement in the [search] policy from its inception”).Google Scholar
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In a similar vein, Edmond left open whether police can establish a roadblock with the “primary purpose of checking licenses or driver sobriety [a permissible purpose under the roadblock cases] and a secondary purpose of interdicting drugs [an impermissible purpose under the roadblock cases].” Edmond, 532 U.S. at 47, n.2.Google Scholar
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Kincade, 379 F.3d at 857, n.16 (Reinhardt, J., dissenting). The analogy to fingerprinting is flawed in another sense. “[U]nlike fingerprints, DNA stores and reveals massive amounts of personal, private data about that individual, and the advance of science promises to make stored DNA only more revealing in time. Like DNA, a fingerprint identifies a person, but unlike DNA, a fingerprint says nothing about the person's health, their propensity for particular disease, their race and gender characteristics, and perhaps even their propensity for certain conduct.” Id. at 842 (Gould, J., concurring). See also Rothstein, & Carnahan, , supra note 83, at 156–57 (distinguishing DNA samples from fingerprinting).Google Scholar
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Throughout this article, I have endeavored to provide an objective analysis of the Court's Fourth Amendment doctrine. In light of that goal, the article reaches the conclusion that neither Virginia's nor Louisiana's DNA arrestee law satisfies the special needs formula. If, however, the Court were to actually hear a challenge to the taking and testing of an arrestee's DNA, I doubt the Court will strike down the law on Fourth Amendment or any other constitutional grounds. Notwithstanding the result and reasoning of Ferguson, I predict a majority of the Court will be unwilling to invalidate such a statute. A majority of the Court will construct a “Good for This Day and Train Only” theory in order to uphold the search. United States v. Knights, 534 U.S. 112 (2001), is a recent example of this occasionally-used phenomenon on the Court. Knights upheld a warrantless search by police officers of a probationer's home based upon a reasonable suspicion that criminal evidence would be discovered. Knights did not rely on Griffin or the special needs cases, because the search was clearly related to law enforcement purposes and conducted without the involvement or knowledge of probation officials. Knight's holding rests upon what the Court cites as “our general Fourth Amendment approach of “examining the totality of the circumstances.” Id. at 118 (citation omitted). Such a “totality” or “general reasonableness'” model is a standard-less formula that permits a majority of the Court to do what it pleases without having to justify its result or reasoning under traditional Fourth Amendment doctrine.Google Scholar