LICENSE, REGISTRATION, CHEEK SWAB:
DNA TESTING AND THE DIVIDED COURT
Erin Murphy∗
Midway through the oral argument in Maryland v. King, Justice
Alito spontaneously interjected: “[B]y the way, I think this is perhaps
the most important criminal procedure case that this Court has heard
in decades.”1 The juxtaposition between the breeziness of his comment and the solemnity of its content befit the case, which is best characterized as a sleeper in a Term overshadowed by monumental rulings
on gay marriage, voting rights, and affirmative action. What looked
on its face like just another Fourth Amendment dispute — with civil
libertarians on one side and law enforcement on the other — garnered
no special attention. But King is no ordinary Fourth Amendment
case.
At first glance, King simply upheld the Fourth Amendment constitutionality of a state statute authorizing the collection of DNA from
arrestees. But the opinion in the case represents a watershed moment
in the evolution of Fourth Amendment doctrine and an important signal for the future of biotechnologies and policing. This Comment
places King into context from three different vantage points, each one
step removed. Specifically, the three Parts below address the significance of the opinion: for DNA collection from arrestees, for forensic
DNA practices more generally, and for the Fourth Amendment.
Part I briefly summarizes the opinions in the case and may be
skipped by those familiar with them. Part II reads between the lines
of the majority opinion, in light of the greater constellation of facts and
claims placed before the Court, to underscore the significance of what
was not said about the constitutionality of arrestee DNA collection.
Part III considers King as it exemplifies the judicial response to forensic DNA typing more generally, and imagines its precedential value in
future biometric cases. Part IV situates King in the broader landscape
of the Court’s recent Fourth Amendment jurisprudence and analyzes
its insights for the evolution of the field as a whole.

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
∗ Professor, New York University School of Law. I am grateful to the Filomen D’Agostino
and Max E. Greenberg Research Fund for supporting this work. Special thanks to David
Sklansky, whose conversations about this piece helped me to frame its ideas.
1 Transcript of Oral Argument at 35, Maryland v. King, 133 S. Ct. 1958 (2013) (No. 12-207),
available at http://www.supremecourt.gov/oral_arguments/argument_transcripts/12-207-lp23.pdf.

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I. THE KING OPINIONS
In 2009, Maryland authorities arrested Alonzo King after a witness
identified him as the man who had pointed a shotgun at a group in
which the witness was standing.2 He was charged with first- and second-degree assault.3 Under a Maryland law passed in 2008, police
may collect a DNA sample from any person arrested for a crime of violence or burglary.4 Because the first-degree assault charge qualified
as a crime of violence, officials sampled King’s DNA. Ultimately,
King entered an Alford plea to the charge of second-degree assault,5 a
misdemeanor offense that on its own would not have qualified him for
inclusion in a DNA database under Maryland law governing arrestees
or convicted persons.6
Law enforcement took the sample and sent it to a private vendor,
who analyzed it four months later, whereupon King’s DNA profile was
uploaded to the state’s DNA database.7 A routine search in the database matched the profile to that taken from an unsolved sexual assault
from 2003, and King was arrested and charged with that offense.8 He
moved to suppress the evidence of the DNA match, arguing that the
suspicionless collection of DNA from a person merely charged with an
offense violated the Fourth Amendment.9 The trial court denied his
motion, but the Maryland Court of Appeals reversed, based in part on
the “presumption that warrantless, suspicionless searches are per se
unreasonable.”10 Maryland petitioned the Supreme Court for certiorari and the Chief Justice, acting as circuit justice, entered a stay of the
judgment, noting the likelihood of success on the merits and the conflict in the lower courts on this issue.11
Although the certiorari grant received only moderate attention from
the general public, it did not escape the notice of interested parties.
Over twenty amicus curiae briefs were filed, split roughly evenly between petitioner and respondent.12 Maryland’s supporters included all
fifty states in a rare showing of total consensus, a variety of law en–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
2
3
4
5

Brief for the Respondent at 9, King, 133 S. Ct. 1958 (No. 12-207).
Id.
MD. CODE ANN., PUB. SAFETY § 2-504(a)(3)(i) (West 2013).
Brief for the Respondent, supra note 2, at 9 n.6 (citing North Carolina v. Alford, 400 U.S. 25
(1970), which permits a plea without admission of guilt).
6 MD. CODE ANN., PUB. SAFETY § 2-504(a)(1) (West 2013) (authorizing collection from
those convicted of felonies and only certain misdemeanors).
7 Brief for the Respondent, supra note 2, at 9.
8 Id. at 9–10.
9 Id. at 10.
10 King v. State, 42 A.3d 549, 575 (Md. 2012).
11 Maryland v. King, 133 S. Ct. 1, 2–3 (2012).
12 See Preview: Maryland v. King, AM. BAR ASS’N, http://www.americanbar.org/publications
/preview_home/12-207.html (last visited Sept. 29, 2013).

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forcement and victims’ rights organizations, and a consortium of businesses that sell DNA instrumentation and technology.13 King’s advocates included civil liberties and public defense organizations,14 geneticists engaged in ethical issues, and a veterans group.15
The spirited oral argument, which signaled the likelihood of a
closely divided decision, kicked off with this exchange:
MS. 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 have been 225 matches, 75
prosecutions, and 42 convictions, including that of Respondent King.
JUSTICE 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.)
JUSTICE SCALIA: That proves absolutely nothing.16

On June 3, 2013, the Court handed down its 5–4 decision, with Justice Kennedy writing for a majority that included Chief Justice Roberts
and Justices Thomas, Breyer, and Alito.17 Justice Scalia’s dissent was
joined by Justices Ginsburg, Sotomayor, and Kagan.18
A. The Majority
Justice Kennedy’s majority opinion boiled down to a balancing
contest in which government need trumped privacy. The first sign of
a new Fourth Amendment in town surfaced early in the opinion, when
Justice Kennedy declared that “the ultimate measure of the constitutionality of a governmental search is ‘reasonableness’” — not a warrant or some degree of suspicion.19 Indeed, the Court described such
procedural impediments as dispensable when “the search involves no
discretion that could properly be limited by the ‘interpo[lation of] a
neutral magistrate between the citizen and the law enforcement officer.’”20 Accordingly, all that remained was to ask whether an arrestee’s interest in privacy outweighed the government’s interest in
collecting and storing her DNA.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
13
14

Id.
Disclosure: I coauthored an amicus brief submitted on behalf of scholars of forensic evidence. Brief of 14 Scholars of Forensic Evidence as Amici Curiae Supporting Respondent, King,
133 S. Ct. 1958 (No. 12-207) [hereinafter Scholars’ Br.].
15 Preview: Maryland v. King, supra note 12.
16 Transcript of Oral Argument, supra note 1, at 3.
17 King, 133 S. Ct. at 1965.
18 Id. at 1980 (Scalia, J., dissenting).
19 Id. at 1969 (majority opinion) (quoting Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652
(1995)) (internal quotation mark omitted).
20 Id. at 1969–70 (alteration in original) (quoting Nat’l Treasury Emps. Union v. Von Raab,
489 U.S. 656, 667 (1989)).

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On the government’s side of the ledger, the Court identified the
“well established . . . need for law enforcement officers in a safe and
accurate way to process and identify the persons and possessions they
must take into custody,”21 which placed DNA collection within the exemptions for “routine booking” and the right to search incident to arrest.22 In the words of the Court, “it is known and must be known
who has been arrested and who is being tried.”23 Specifically, the need
to establish identity entitled the government to learn “more than just
his name or Social Security number.”24 Rather, the information
gleaned from collecting a DNA profile under this legal authority
served five legitimate goals: it fleshed out identification by providing
criminal history;25 provided the authorities with greater information
about the detainee’s potential violent tendencies or mental disorders;26
aided in the determination of proper bail;27 prevented bail jumping by
suspects afraid that a DNA match upon conviction would associate
them with another offense;28 and freed the wrongly accused.29 The
Court accordingly defined DNA profiling as “an important advance”
in law enforcement identification techniques, spanning from photography through Bertillonage to fingerprinting.30
In contrast to the government’s strong interest in DNA collection,
the Court viewed the defendant’s privacy interests in protecting his
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
21
22
23

Id. at 1970.
Id. at 1971, 1980.
Id. at 1971 (quoting Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177, 191 (2004)) (internal
quotation mark omitted).
24 Id.
25 Id. (“Identity has never been considered limited to the name on the arrestee’s birth certificate. In fact, a name is of little value compared to the real interest in identification at stake when
an individual is brought into custody. . . . A suspect’s criminal history is a critical part of his identity that officers should know when processing him for detention.”).
26 Id. at 1972 (noting that officials “must know the type of person whom they are detaining,”
to ensure that their decisions about custody safeguard staff, other detainees, and the arrested individual); id. (“Knowledge of identity may inform an officer that a suspect is wanted for another
offense, or has a record of violence or mental disorder.” (quoting Hiibel, 542 U.S. at 186) (internal
quotation mark omitted)).
27 Id. at 1973 (“DNA identification of a suspect in a violent crime provides critical information
to the police and judicial officials in making a determination of the arrestee’s future dangerousness. This inquiry has always entailed some scrutiny beyond the name on the defendant’s driver’s
license. For example, Maryland law requires a judge to take into account not only ‘the nature
and circumstances of the offense charged,’ but also ‘the defendant’s family ties, employment status and history, financial resources, reputation, character and mental condition, length of residence in the community.’” (quoting MD. CODE ANN., RULES § 4-216(f)(1)(A), (C) (West 2013)));
id. at 1974 (“[R]elease is not appropriate until a further determination is made as to the person’s
identity in the sense not only of what his birth certificate states but also what other records and
data disclose to give that identity more meaning in the whole context of who the person really is.”).
28 Id. at 1973.
29 Id. at 1974.
30 Id. at 1975–77.

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genetic material as minimal. It based this conclusion on three considerations: the status of the individual as an arrestee, the minimal expectation of privacy held in one’s cheek cells, and the minimal intrusion
that swabbing imposes.31 As to the first concern, the Court defined
privacy as contextual and observed that a suspect taken into custody
by necessity loses some privacy protections.32 In making this move,
the Court distinguished searches of the arrestee from those of “the average citizen,” in that a suspicionless search could only stand in the latter case if motivated by a “special need.”33 As to the other two interests, the Court simply concluded that “a swab of this nature does not
increase the indignity already attendant to normal incidents of arrest.”34
In the closing pages of the opinion, the Court dismissed any privacy interests related to the analysis of the DNA code contained in the
sample, or to the sample’s indefinite retention.35 The DNA typed, it
observed, did not reveal any personal medical or physical traits, and
even if they did, “they are not in fact tested for that end.”36 Moreover,
the Court cited the statutory provisions that limit testing to identification purposes as alleviating potential privacy concerns.37 Given the
weak privacy concerns and the compelling government interest, the
Court found the statute constitutional.
B. The Dissent
Justice Scalia opened his dissent as forcefully as he did the oral argument. He wrote:
The Fourth Amendment forbids searching a person for evidence of a
crime when there is no basis for believing the person is guilty of the crime
or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment. Whenever this Court has allowed a suspicionless search, it has insisted upon a justifying motive apart from the investigation of crime.
It is obvious that no such noninvestigative motive exists in this case.
The Court’s assertion that DNA is being taken, not to solve crimes, but to
identify those in the State’s custody, taxes the credulity of the credulous.38

After briefly recounting the oft-recited animosity of the Founders to
the general warrant,39 the dissent dispensed with the claimed doctrinal
bases for legitimating the DNA search. It criticized the “search inci–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
31
32
33
34
35
36
37
38
39

Id. at 1977–79.
Id. at 1978.
Id.
Id. at 1979.
Id.
Id.
Id. at 1979–80 (citing MD. CODE ANN., PUB. SAFETY §§ 2-505(b)(1), 2-512(c) (West 2013)).
Id. at 1980 (Scalia, J., dissenting).
Id. at 1980–82.

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dent to arrest” rationale, remarking that such a search “either serves
other ends (such as officer safety, in a search for weapons) or is not
suspicionless (as when there is reason to believe the arrestee possesses
evidence relevant to the crime of arrest).”40 In contrast, the DNA
search is a suspicionless search for crime-solving purposes alone.41
Justice Scalia underscored this point by noting that the majority felt
compelled to explain that its reasoning did not authorize suspicionless
searches of arrestees’ homes or invasive surgery, adding “[t]hat the
Court feels the need to disclaim these consequences is as damning a
criticism of its suspicionless-search regime as any I can muster.”42
As to the “routine booking” rationale, Justice Scalia disputed the
claimed “identification” purpose, noting that the DNA was analyzed
long after the booking, arrest, and bail decisions were made, and that
the search conducted was not limited to matches in the database of
known offenders, but included matches in the database for unsolved
crimes.43 He next refuted each of the majority’s analogies: DNA collection is not like photographs, because photographs entail no Fourth
Amendment search; it is not Bertillonage, because that technique was
truly used for identification and not crime-solving purposes.44 Most
powerfully, Justice Scalia explained (partially through the use of a
chart) why fingerprinting differed dramatically from DNA typing.45
He observed that known fingerprints are not “systematically compared” with latent prints from unsolved crime scenes (in contrast to
DNA),46 and even if so, courts have never approved such action. He
also observed that while fingerprinting may not even be a “search,”
analysis of genetic code certainly is.47
Finally, the dissent warned of the easy breach of perceived limits in
the majority opinion, and viewed no principled means of distinguishing efforts to take the DNA of those arrested even for traffic offenses.48
It also viewed such an outcome as lamentable, given that all parties
agreed that sampling of King upon conviction would have been constitutionally permissible; thus, “[t]he only arrestees to whom the outcome
here will ever make a difference are those who have been acquitted of
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
40
41
42
43
44
45
46
47
48

Id. at 1982.
Id.
Id.
Id. at 1983–85.
Id. at 1986–87.
Id. at 1987–88.
Id. at 1987.
Id.
Id. at 1989 (“Make no mistake about it: As an entirely predictable consequence of today’s
decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.”).

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the crime of arrest (so that their DNA could not have been taken upon
conviction).”49 The dissent closed as strongly as it opened:
Today’s judgment will, to be sure, have the beneficial effect of solving
more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the “identity” of the flying public), applies for a
driver’s license, or attends a public school. Perhaps the construction of
such a genetic panopticon is wise. But I doubt that the proud men who
wrote the charter of our liberties would have been so eager to open their
mouths for royal inspection.50

II. KING BETWEEN THE LINES: WHAT IT MEANS FOR
ARRESTEE DNA TYPING
At the same time that certiorari was sought in King, a case captioned Haskell v. Harris was winding its way through the federal
courts in California.51 The named plaintiff in Haskell, which was
brought by the ACLU of Northern California, was arrested at a
political rally and forced to give a DNA sample.52 She brought suit in
2009, complaining that California’s DNA collection law violated her
civil rights.53 The record amassed in Haskell, a civil case with the
benefit of liberal discovery rules, differed dramatically from that in
King. ACLU attorneys requested and received extensive documentation on the operation and efficiency of California’s database and proffered an array of experts to testify as to various aspects of the policy.54
The en banc Ninth Circuit heard oral arguments in the case, but announced that it would not issue a ruling until the decision in Maryland
v. King.55
Nevertheless, the questions raised by Haskell, and the information
it generated about DNA practices, were a centerpiece of the litigation
in King. Foremost, the King parties called attention to the dramatic
differences between the Maryland and California statutes. Whereas
Maryland allows analysis of DNA only after the arrest is validated by
a judicial finding of probable cause, California allows an officer to analyze a DNA sample immediately. Whereas Maryland requires automatic expungement of the record and destruction of the sample if the
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
49
50
51

Id.
Id.
Haskell v. Harris, 686 F.3d 1121 (9th Cir. 2012) (order granting rehearing en banc); Haskell
v. Harris, 669 F.3d 1049, 1051 (9th Cir. 2012) (finding arrestee DNA collection constitutional).
52 See Haskell v. Brown, 677 F. Supp. 2d 1187, 1192 (N.D. Cal. 2009), aff’d sub nom. Haskell
v. Harris, 669 F.3d 1049.
53 Id.
54 Disclosure: I submitted an affidavit on Haskell’s behalf in the litigation.
55 Haskell v. Harris, No. 3:09-cv-04779-CRB (9th Cir. Nov. 28, 2012) (order deferring case
pending the Supreme Court’s decision in King).

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case is dismissed, California requires that the arrestee petition the authorities with such a request. And whereas the Maryland statute is limited to a narrow subset of the most serious of offenses, California’s
statute allows sampling of all felony arrestees.
Moreover, as the Court well knew, California’s broad statute is not
atypical. Twenty-seven other states and the federal government currently allow arrestee typing.56 Of those, only fifteen limit the relevant
population to serious felons; thirteen allow typing of all felons, and
seven even permit collection from certain misdemeanants.57 At least
four states allow collection of DNA from juvenile arrestees.58 In addition, two-thirds of the arrestee-collection states authorize sampling upon arrest, rather than requiring a judicial determination of probable
cause,59 and most require the sampled individual to seek expungement.60
Although not directly raised by the King case, each of these issues —
judicial checks on probable cause, qualifying offenses, and
expungement — was squarely presented to the Court. Indeed, the
brief for the United States explained that “unlike Maryland, the federal government collects DNA samples from all of its arrestees, not just
those arrested for particular crimes, and may analyze a sample before
an arrestee’s appearance in court. In addition, unlike Maryland arrestees, federal arrestees who are not convicted must affirmatively request expungement.”61 Moreover, advocates for King, including the
ACLU of Northern California, filed briefs underscoring the potential
scope of the Court’s ruling and encouraging attention to the particular
details of the Maryland statute.62 The Court, in issuing the stay pending certiorari, observed the split in the circuits and acknowledged that
courts were grappling with these precise issues in cases pending across
the country.63 The failure of the decision to offer express guidance on
these matters is thus a silence that speaks at least as loudly as words,
especially since the Court not only resisted declaring such safeguards
as essential, but also planted seeds suggesting the contrary.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
56 Julie Samuels et al., Collecting DNA from Arrestees: Implementation Lessons, NAT’L INST.
JUST. J., June 2012, at 18, 19, available at https://www.ncjrs.gov/pdffiles1/nij/238484.pdf.
57 Id. at 20–21. These laws are changing all the time and are likely to change even more rapidly after King. These data are current as of June 2012.
58 DNA Collection upon Arrest, NAT’L CLEARINGHOUSE FOR SCI., TECH. & L. (May 2011),
http://www.ncstl.org/resources/DNACollectionUponArrest.
59 Samuels, supra note 56, at 21.
60 Id. at 23.
61 Brief for the United States as Amicus Curiae Supporting Petitioner at 5, King, 133 S. Ct.
1958 (No. 12-207) [hereinafter U.S. Br.] (citation omitted).
62 See, e.g., Brief of Amici Curiae American Civil Liberties Union, ACLU of Maryland, and
ACLU of Northern California Supporting Respondent at 31–38, King, 133 S. Ct. 1958 (No.
12-207).
63 Maryland v. King, 133 S. Ct. 1, 2 (2012).

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A. Judicial Findings of Probable Cause
First, nothing in the opinion suggested that the constitutionality of
arrestee typing hinges on a requirement that a judicial officer first validate the arrest as supported by probable cause. To be sure, in the factual background portion of the opinion, the Court described Maryland’s law as prohibiting analysis of DNA until the individual is
arraigned.64 But it never pronounced that provision indispensable.
Indeed, the closing of the opinion affirmed that:
When officers make an arrest supported by probable cause to hold for a
serious offense and they bring the suspect to the station to be detained in
custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like
fingerprinting and photographing, a legitimate police booking procedure
that is reasonable under the Fourth Amendment.65

Although the “supported by probable cause” language might at first
glance suggest a magistrate’s approval, upon reflection that reading
seems strained. Instead, that phrase seems only to affirm that records
from arrests not supported by probable cause may be expunged, as all
statutes provide. It does not indicate a temporal limitation on taking
and analyzing a sample. In fact, by describing the analysis as occurring at the station, and analogizing it to other booking procedures done
there,66 the Court seems to expressly indicate that judicial preapproval
is not required. Moreover, the Court’s reasoning — grounded in the
importance of officer and correctional safety — reflects concerns that
arise before an arrestee is taken to court.67 In short, it seems clear that
the majority did not view judicial validation of the arrest as constitutionally significant in any way.
B. The Seriousness of the Offense
The ominous ending of Justice Scalia’s dissent cautioned that King
paves the way for DNA testing of persons far beyond arrestees for serious crimes. He chided the Court for false assurances to the contrary,
referencing no fewer than seven pages that he views as the majority
“limiting the analysis to ‘serious offenses.’”68 While Justice Scalia
surely is correct that any such language constitutes “a limitation it
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
64
65
66

King, 133 S. Ct. at 1967.
Id. at 1980 (emphases added).
See id. at 1971 (discussing “procedures at a police station house incident to booking and jailing the suspect” (quoting Illinois v. Lafayette, 462 U.S. 640, 643 (1983)) (internal quotation mark
omitted)); id. (describing DNA analysis as akin to checking name or social security number).
67 See, e.g., id. at 1970 (citing “the need for law enforcement officers in a safe and accurate
way to process and identify the persons . . . they must take into custody”); id. at 1971–72 (asserting that police need to know whom they are processing).
68 Id. at 1989 (Scalia, J., dissenting).

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cannot deliver,”69 it is far from clear that the majority ever made that
supposed promise.
Of the multiple citations to “serious” offenses in the majority opinion, only two could plausibly be construed as intended to mark a limit;
the remainder simply serve as adjectives that describe the scope of the
statute. The first possible effort at restriction is found in the Court’s
attempt to give weight to King’s privacy interest. Specifically, the
Court diminished that interest given the fact of King’s arrest, noting
that “[i]n considering those expectations in this case, however, the
necessary predicate of a valid arrest for a serious offense is fundamental.”70 To a generous reader, that might suggest that a weightier interest in privacy could be held by one arrested for a lesser offense; alternatively, it might suggest greater privacy for those whose arrests are
not judicially validated. The second occasion arises in the opinion’s
closing, when the Court effectively stated the holding of the case as
follows: “When officers make an arrest supported by probable cause to
hold for a serious offense . . . .”71 But nothing in the opinion itself
seems to affirm that limit as imperative.
In contrast, the Court repeatedly suggested that it sees no reason to
limit DNA testing to serious felons alone. In justifying collection of
DNA for the purpose of ascertaining criminal history, the Court declared it “a common occurrence that ‘[p]eople detained for minor offenses can turn out to be the most devious and dangerous criminals.’”72
The Court went on to give three examples: two hunted killers stopped
in separate instances for driving without a license plate, and a 9/11 terrorist who received a speeding ticket just days before hijacking one of
the planes.73 In other words, the Court intimated, if only we collected
DNA samples from all traffic law violators (note: not even traffic arrestees), then we might have closed those cases sooner.
The logical structure of the majority’s opinion also depends upon
treating DNA samples as equivalent to other means of identification,
whether social security number, driver’s license, photograph, or fingerprint.74 It makes no sense to suggest that identity is important for one
set of law enforcement contacts but not for another. In fact, the Court
was cautious to explain that not only detaining a suspect, but also set–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
69
70
71
72

Id.
Id. at 1977–78 (majority opinion).
Id. at 1980.
Id. at 1971 (alteration in original) (emphasis added) (quoting Florence v. Bd. of Chosen
Freeholders, 132 S. Ct. 1510, 1520 (2012)).
73 Id.
74 The dissent concurred, reasoning abstractly that the opinion opens such doors since “[i]f one
believes that DNA will ‘identify’ someone arrested for assault, he must believe that it will ‘identify’ someone arrested for a traffic offense.” Id. at 1989 (Scalia, J., dissenting).

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ting bail release conditions,75 and even processing a person through a
precinct, raises the need for this expansive inquiry into “identification.”76 Following the Court’s logic, police have as much need to
know the criminal history of the jaywalker as they do the robber,
because either could be a dangerous killer poised to flee or threaten officer or correctional safety. Inasmuch as Justice Scalia viewed the majority as even attempting to limit its holding, such a reading seems at
best generous.
C. Automatic Expungement
The final point on which the majority was determinedly silent relates to the consequences of erroneous collection of DNA. The majority’s reticence in this regard is, perhaps, more defensible. That is because the expungement provisions of DNA statutes are complex in
ways that can be difficult to intuit and highly factual in execution.
To clarify, consider that in California, expunging an improperly
loaded DNA profile often takes as long or longer than it does to analyze and upload it.77 In general, such a request takes two to four
weeks to process and complete,78 whereas processing of samples averages thirty days.79 Even that estimate is rapidly dwindling — as surfaced repeatedly during the oral argument, technology companies are
currently designing instruments to process known samples of DNA in
ninety minutes on printer-sized platforms that require no special expertise to use.80 And once the “match” cat is out of the bag, it seems all
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
75 Id. at 1974 (majority opinion) (“[E]ven when release is permitted, the background identity of
the suspect is necessary for determining what conditions must be met before release is allowed.”).
76 Id. at 1974–75 (discussing importance of “proper processing of arrestees,” id. at 1974, and
the station-house search).
77 California has one of the easier expungement processes available. No lawyer or filing fees
are required, and the petitioner can download a form online and mail it, along with “sufficient
documentation” of “identity, legal status, and criminal history” (though the instructions are vague
as to what satisfies these criteria), to the state Department of Justice. See Expungement Application Instructions, ST. CAL. DEPARTMENT JUST., OFF. ATT’Y GEN., http://oag.ca.gov/sites/all
/files/pdfs/bfs/expungement_app_instruc.pdf (last visited Sept. 29, 2013).
78 BFS DNA Frequently Asked Questions, ST. CAL. DEPARTMENT JUST., OFF. ATT’Y GEN.,
BUREAU FORENSIC SERVICES, http://oag.ca.gov/bfs/prop69/faqs (last visited Sept. 29, 2013).
79 Brief for the State of California et al. as Amici Curiae Supporting Petitioner at 18 n.10,
King, 133 S. Ct. 1958 (No. 12-207) (“DNA identification database samples have been processed in
as few as two days in California, although around 30 days has been average.”).
80 Transcript of Oral Argument, supra note 1, at 17 (attorney for the United States suggesting
that ninety-minute devices are in the immediate future); id. at 59 (Maryland attorney suggesting
that these rapid platforms will be available in eighteen months to two years); Brief of the National
Association of Assistant United States Attorneys and National District Attorneys Association as
Amici Curiae in Support of Petitioners at 19–20, King, 133 S. Ct. 1958 (No. 12-207) (describing
the size and convenience of these new platforms). Although, oddly, the amicus brief filed by the
very companies undertaking such developments — who, it should be noted, stand to make a great
deal of money from the sale of these instruments for every precinct and perhaps even squad car in
the nation — did not focus on this issue. See Brief of the Global Alliance for Rapid DNA Testing

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but impossible to put back in. At least one circuit has held that obtaining a DNA sample in violation of the Fourth Amendment falls under the good faith exception to the exclusionary rule, so any unlawfully
seized DNA material would nonetheless be admissible as evidence.81
In fact, in some respects the expungement debate seems absurdly
academic. Consider that jurisdictions across America engage in
“rogue” databasing — the collection and recording of samples in local
and unofficial databases that need not comply with formal statutory
law.82 Most of these are “voluntary” or “abandoned” samples — the
bits of DNA offered by victims or witnesses to exclude their own profiles from a crime scene mixture, or swabbings from doors or cups
handled by suspects at the station. Such forms of collection have been
almost universally held constitutional, suggesting that any profile that
law enforcement wants, it can rather easily get.83 One private company even offers software services to police departments looking to link
their local databases to one another outside of the national system.84
At least nine departments85 have signed up to take advantage of the
promise to “put[] your local law enforcement agency back in charge”
rather than “get tied up in red tape.”86
Informal collection programs of this kind may presently seem like a
poor substitute for systematic collection of DNA from all those who
come into contact with the criminal justice system, but that is more the
product of short-term technological limitations than long-term feasibility concerns. Imagine the scene five years from now, the path to
which has been cleared by the opinion in King. The Global Alliance
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
as Amicus Curiae in Support of Petitioner at 1, King, 133 S. Ct. 1958 (No. 12-207) (identifying
themselves as “an association of business organizations with a common interest in promoting consensus on issues relating to the widespread implementation of biometric technologies for rapid
DNA identification”).
81 United States v. Davis, 690 F.3d 226, 251–57 (4th Cir. 2012) (refusing to apply the exclusionary rule to unlawful collection of DNA sample). The good faith exception has, of course,
broadened considerably in recent years. See, e.g., Herring v. United States, 129 S. Ct. 695, 698
(2009) (holding evidence seized as a result of an illegal arrest caused by police record-keeping error admissible under good faith exception).
82 Erin Murphy, Physician Heal Thyself: Whither the Police and Prosecutor in the Tale of Forensic Science Gone Wrong?, 91 TEX. L. REV. SEE ALSO 101, 110 (2013), http://www.texaslrev
.com/physician-heal-thyself-whither-the-police-and-prosecutor-in-the-tale-of-forensic-science-gone
-wrong; Joseph Goldstein, Police Agencies Are Assembling Records of DNA, N.Y. TIMES, June 12,
2013, at A1.
83 See, e.g., Williamson v. State, 993 A.2d 626, 628–29 (Md. 2010) (upholding sample collected
from McDonald’s cup offered to defendant during questioning on unrelated charges); see also
Elizabeth E. Joh, Reclaiming “Abandoned” DNA: The Fourth Amendment and Genetic Privacy,
100 NW. U. L. REV. 857, 865–66 (2006).
84 Local vs. National Database, LODIS WORLDWIDE, http://lodisworldwide.com/local-vs
-national-database (last visited Sept. 29, 2013).
85 See Goldstein, supra note 82.
86 Local vs. National Database, supra note 84; see also Goldstein, supra note 82.

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for Rapid DNA Testing announces its lowest cost single-touch DNA
typing system for known samples: one Q-tip plus ninety minutes
equals a DNA profile of a known offender that can instantly be
checked against any database. Every precinct and squad car is outfitted with such a device. Given the ease of swabbing, why not request
or demand a sample at every police encounter? As a routine matter,
officers during “stop-and-frisks” ask suspects to “voluntarily” submit to
swabbing. Those arrested for low-level offenses are given the chance
to “spit and acquit.”87 Police during traffic stops lawfully request
swabs to verify identity. And of course any offender actually processed
at the precinct has a mug shot and DNA sample taken as a matter of
course — if the law does not explicitly allow genetic sampling, then
police can simply swab the cuffs or cell.
Expungement, in such a world, is so incidental it is hardly worth
mentioning. Moreover, returning to the Court’s “identification” analogy, law enforcement does not routinely erase the pictures or expunge
the fingerprints of arrestees whose cases are dismissed. Why, then,
would the Court expect law enforcement to act any differently with a
DNA sample?
* * *
Let me be clear: I would prefer to read the King opinion as narrowly as possible, so that it does the least amount of violence to the
protections embodied in the Fourth Amendment. The text of the opinion bears either a narrow or broad reading. But it is the silences that
this Part expounds upon and, for the reasons given, views them as
speaking as loudly as declarations. The next two Parts explain why
those declarations are unfortunate.
III. KING AND THE DOUBLE HELIX: THE DNA CASES TO COME
Many criminal procedure scholars who vaguely followed the King
case had a hard time understanding what the fuss was about. Their
position might be summed up by the majority’s assertion that “DNA
identification is an advanced technique superior to fingerprinting in
many ways, so much so that to insist on fingerprints as the norm
would make little sense to either the forensic expert or a layperson.”88
Considering that the FBI database contains over 100 million sets of
fingerprints, and that it processed more than 61 million ten-print sub–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
87 See Elizabeth Jones & Wallace Wade, “Spit and Acquit”: Legal and Practical Ramifications
of the DA’s DNA Gathering Program, ORANGE COUNTY LAW., Sept. 2009, at 18, 18 (describing
Orange County’s “spit and acquit” program for misdemeanors).
88 King, 133 S. Ct. at 1976.

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missions in 2010 alone,89 this equation of DNA identification with fingerprint technology suggests a bright future for law enforcement’s
DNA collection practices. So what difference would it make if police
had 100 million people’s genetic, rather than biometric, material?
This Part addresses three misconceptions about forensic DNA typing that permeate the King opinion: first, that DNA typing will only
be of concern to criminals; second, that the police will not probe sensitive or private genetic information, and that laws protect against misuse; and third, that collecting more DNA samples from known individuals will solve a lot of crime. In short, the previous Part argues
that the King opinion can be read as an embrace of expansive forensic
DNA testing. This Part explains why that is a bad idea.
A. Myth: King Matters Only to Criminals
King might be viewed as a statement less about the legal status of
DNA sampling than as one about the legal status of arrestees. It could
be seen as simply a natural outgrowth of Samson v. California,90 the
case that justified random searches of parolees without a warrant or
suspicion based on their diminished status as subjects with conditional
liberty.91 In this telling, King is not a declaration of general disinterest
in genetic privacy, but simply an expression of the Court’s lack of solicitude for those entangled in the criminal justice system.
But if what decided the issue for the Court was that arrestees deserve less protection than “the average citizen,”92 then it seems that the
Court could have rested its opinion on those grounds alone. In other
words, the Court could have said, “DNA testing is a serious and significant intrusion on bodily integrity. But the Constitution permits the
state, with a compelling enough interest, to impinge on the most fundamental aspects of bodily privacy when it comes to arrestees.93 Thus,
the Constitution permits the DNA sampling of an arrestee, despite the
seriousness of the intrusion involved.” It could have walled off the
opinion as a categorical exception that applies only to convicted offenders and arrestees, and declared the law-abiding public’s DNA out
of bounds.
But that is not what the Court did. Rather than just say that arrestees may at times be forced to divulge sensitive information, the
majority took pains to diminish the interest in genetic privacy altogether. It described DNA typing as a “brief” and “minimal intru–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
89 See Integrated Automatic Fingerprint Identification System, FED. BUREAU OF INVESTIGATION, http://www.fbi.gov/about-us/cjis/fingerprints_biometrics/iafis/ (last visited Sept. 29, 2013).
90 547 U.S. 843 (2006).
91 Id. at 847.
92 King, 133 S. Ct. at 1978.
93 See Florence v. Bd. of Chosen Freeholders, 132 S. Ct. 1510, 1513–14 (2012).

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sion.”94 It devoted an entire section to equating DNA sampling with
fingerprinting, effectively suggesting that anywhere a fingerprint is
permissible, a DNA test might be too.95 And lastly, the Court expressed its faith in law as a safeguard against any possibility that the
government might abuse the samples in its possession.96
Because the King majority argued both that arrestees have diminished privacy and that DNA is not such private information, it is difficult to know which view is paramount. But the deliberate minimization of the intrusiveness of DNA typing, coupled with the embrace of
the analogy to fingerprinting, suggests that the Court simply does not
think that DNA sampling is that big of a deal. That, in turn, suggests
that future cases involving DNA typing are much less likely to turn on
the status of the King defendant as an arrestee than on the Court’s
general nonchalance about government genetic testing.
To the extent that such an interpretation seems incompatible with
Fourth Amendment doctrine, it is important to understand precisely
what doctrine King laid down. To find constitutional footing, the
Court needed to maneuver between two poles: the singular example of
Samson v. California, which upheld random searches of parolees without a warrant, and the “special needs” cases that allow random,
suspicionless searches for purposes other than law enforcement.97 Yet
neither quite fit.
King was not quite Samson because arrestees are legally distinguishable from convicted offenders — as underscored by the Constitution’s presumption of innocence. And although the Court’s jurisprudence has certainly made it harder to appreciate the difference
between those adjudged guilty and those merely suspected of crime,
there are definite constitutional boundaries that cannot be easily traversed. It is surely true that, as one commentator argued, once police
arrest a person on probable cause: “[T]hey can search his person, photograph him, and fingerprint him. He can even be strip-searched. A
person suspected of drunken driving can be required to take a Breathalyzer or jabbed with a syringe.”98 But such an unqualified statement
is doctrinally deceptive.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
94
95

King, 133 S. Ct. at 1979.
See id. at 1976–80 (“The additional intrusion upon the arrestee’s privacy beyond that associated with fingerprinting is not significant.”).
96 Id. at 1979–80.
97 The problem was evident at the oral argument, when Chief Justice Roberts engaged the
Deputy Solicitor General in a discussion about the proper standard. The Deputy candidly
“acknowledge[d] that there is no case on my side that decides the case.” Transcript of Oral Argument, supra note 1, at 24.
98 Eric Posner, The Mother of DNA Databases, SLATE (Mar. 5, 2013, 12:04 PM),
http://www.slate.com/articles/news_and_politics/view_from_chicago/2013/03/dna_at_the_supreme
_court_the_case_for_a_universal_database.html.

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Fourth Amendment law — for good reason — doctrinally distinguishes among each of those activities. Photographing (and arguably
fingerprinting) an individual does not implicate the Constitution, because it is not a “search.”99 Searches of the person are justified as necessary for officer protection and evidence preservation, not ordinary
crime solving — which is why getting arrested for an offense does not
open individuals to warrantless and suspicionless searches of their
homes, cars, or offices.100 And in fact the police do not have carte
blanche to strip search and syringe jab any arrestee; they must have a
justification beyond mere arrest (for example, that the person will be
introduced into a general jail population,101 or that there is suspicion
of intoxication102). DNA, in contrast, is a search, done for ordinary
crime-solving purposes, with no specialized justification. The line between arrestees and convicted offenders may be slim, but to hold that
Samson controlled would have been to all but erase what Fourth
Amendment distinctions remain.
Yet the “special needs” doctrine, despite its role as the traditional
refuge of the warrantless, suspicionless search, did not quite work either. Indeed, the special needs cases proved problematic even for convicted offender DNA sampling, because they explicitly and importantly
apply only to searches for purposes other than “ordinary criminal
wrongdoing.”103 Interestingly, however, the Court did not distinguish
special needs on that ground. The majority conceded that the special
needs cases “do not have a direct bearing on the issues presented in
this case,” but not because the DNA collection at issue was for “ordinary law enforcement.”104 Rather, those cases were inapposite because
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
99 In contrast, the Court has held that police must have reasonable suspicion in order to demand something as simple as a person’s name. Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177,
184 (2004) (summarizing constitutional history of “stop and identify” statutes); Brown v. Texas,
443 U.S. 47, 52 (1979) (finding violation of Fourth Amendment in stop-and-identify statute when
applied without reasonable suspicion).
100 As the Court wrote in Schmerber v. California, 384 U.S. 757 (1996), the search-incident-toarrest exception, which typically allows a search of the arrestee without suspicion, is founded in
concerns about destruction of evidence and the danger of concealed weapons, but these considerations “have little applicability with respect to searches involving intrusions beyond the body’s surface. The interests in human dignity and privacy which the Fourth Amendment protects forbid
any such intrusions on the mere chance that desired evidence might be obtained.” Id. at 769–70.
Thus, “[i]n the absence of a clear indication that in fact such evidence will be found, these fundamental human interests require law officers to suffer the risk that such evidence may disappear
unless there is an immediate search.” Id. at 770.
101 See Florence v. Bd. of Chosen Freeholders, 132 S. Ct. 1510, 1522–23 (2012) (qualifying holding as limited to general population inmates).
102 See Schmerber, 384 U.S. at 770.
103 See, e.g., City of Indianapolis v. Edmond, 531 U.S. 32, 38 (2000) (striking down drug interdiction checkpoint, as distinguished from permissible sobriety checkpoint, because its purpose was
to check for “ordinary criminal wrongdoing”).
104 King, 133 S. Ct. at 1978.

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they target “either the public at large or a particular class of regulated
but otherwise law-abiding citizens.”105 In contrast, arrestees have diminished privacy, and so the Constitution “does not require consideration of any unique needs that would be required to justify searching
the average citizen.”106
That maneuver yields two significant insights. First, it gestures
toward a tacit concession by the Court that the DNA collection at
issue constituted “ordinary law enforcement.” Second, it seemingly
acknowledges that even those with some measure of diminished privacy — such as schoolchildren,107 highway travelers,108 public employees,109 or other special needs categories — might still retain an interest
in protecting their identity from police. That would seem to call into
question Justice Scalia’s warning that the majority’s opinion forebodes
DNA testing of “anyone who flies on an airplane . . . applies for a
driver’s license, or attends a public school.”110
But this reading seems undermined by the ultimate legal foot upon
which the opinion stands. The most radical aspect of King is its reimagination of the idea of “identity” to include criminal history and
other information beyond “name and social security number,” as discussed in greater depth in the next section.111 That generous redefinition allowed the Court to rely upon analogizing DNA to “routine
booking” procedures like mug shots and fingerprints, which are generally exempt from constitutional scrutiny.112 Such practices have not
raised much concern, because they are viewed as colorless exercises in
identification. It is only the spectre of abuse that has elicited constitutional attention.113 Police have never routinely collected or used photographs or prints for random crime-solving purposes; both were always mainly for identification of persons already suspected of a crime
(i.e., individualized suspicion).114 We know this intuitively: how common are newspaper headlines about thirty-year-old cases solved
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
105
106
107

Id.
Id.
See Safford Unified Sch. Dist. v. Redding, 129 S. Ct. 2633, 2639 (2009); Vernonia Sch. Dist.
v. Acton, 515 U.S. 646, 653 (1995); New Jersey v. T.L.O., 469 U.S. 325, 341–42 (1985).
108 See Mich. Dep’t of State Police v. Sitz, 496 U.S. 444, 447 (1990).
109 See Nat’l Treasury Emps. Union v. Von Raab, 489 U.S. 656, 668 (1989); O’Connor v. Ortega,
480 U.S. 709, 717 (1987).
110 King, 133 S. Ct. at 1989 (Scalia, J., dissenting).
111 See infra Part III.B, pp. 179–81.
112 See King, 133 S. Ct. at 1971–72.
113 See Davis v. Mississippi, 394 U.S. 721, 727–28 (1969).
114 See King, 133 S. Ct. at 1987–88 (Scalia, J., dissenting). Indeed, police could not have used
photos or fingerprints for random crime-solving even if they had wanted to, since it was not until
twenty or so years ago — when large biometric databases were developed — that it was even possible to conduct a random automated comparison between known files and crime scene samples.

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through “cold hit” fingerprint or mug shot matches, or exonerations based
on a hit to a fingerprint or photograph newly uploaded to the database?
In contrast, DNA is collected for the primary purpose of solving
past and future crimes, and can be grievously abused and misused. By
ignoring this distinction and simply calling DNA a twenty-firstcentury mug shot or fingerprint, the Court therefore opened the door
to a broad police power historically unprecedented in our constitutional jurisprudence. If DNA collection from arrestees is okay just because these are criminal arrestees, then it would seem that other
groups with diminished privacy have nothing to fear. But if DNA collection is also okay because DNA is no more than a twenty-first century fingerprint that simply relates one aspect of “identity,” then it is
hard to read the Court’s opinion as rejecting collection of DNA in any
case where collection of fingerprints is presently allowed.
King, in short, seems to tell the government that taking a person’s
DNA is just like taking his or her fingerprints, only better. And, of
course, it is not just criminals who must give up their fingerprints.
Fingerprints are currently collected in a wide range of circumstances
far beyond arrest, such as from professional licensees,115 home health
and durable medical equipment providers,116 educators,117 driver’s licensees,118 and even volunteers of certain kinds.119 One can imagine
the government’s interest in “identity” might even extend to recipients
of public benefits like Medicare or unemployment, student aid, or users of mass transit. The Court’s relaxed view of wide-scale DNA
sampling also flashes a green light for an array of other police DNA
practices. The “voluntary” swabs and “stop-and-frisk” or “spit-andacquit” samples discussed in the preceding Part start looking more and
more constitutional,120 as do familial searches or the development of
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
115 See, e.g., Fingerprinting Information, FLA. DEPARTMENT FIN. SERVICES, http://www
.myfloridacfo.com/agents/licensure/agents-adjusters/fingerprinting.htm (last visited Sept. 29, 2013)
(insurers); Fingerprinting Requirements, CAL. BUREAU REAL EST., http://www.dre.ca.gov
/Licensees/Fingerprint.html (last visited Sept. 29, 2013) (real estate licensing); Live Scan Fingerprinting Occupational Licensing, CAL. DEPARTMENT MOTOR VEHICLES, https://www.dmv.ca
.gov/vehindustry/ol/livescan.htm (last visited Sept. 29, 2013) (car salespersons, ambulance drivers,
and other workers in the vehicle industry).
116 See, e.g., Nathan Trexler, Fraud and Abuse: Key Provisions in the PPACA, DEL. LAW.,
Spring 2013, at 16, 17.
117 See, e.g., Fingerprint Background Check, UTAH ST. OFF. EDUC., http://www.schools.utah
.gov/cert/License-Requirements/Fingerprint-and-Background-Check.aspx (last visited Sept. 29,
2013); Fingerprint Submission Requirement, COLO. DEPARTMENT EDUC., http://www.cde.state
.co.us/cdeprof/fingerprints.htm (last visited Sept. 29, 2013).
118 See, e.g., CAL. VEH. CODE § 12800(c) (West 2010); COLO. REV. STAT. ANN. § 42-2107(1)(d)(2)(A) (West 2012).
119 See, e.g., Frequently Asked Questions, ARIZ. BOARD FINGERPRINTING, http://www.azbof
.gov/faq.htm#fingerprint (last visited Sept. 29, 2013).
120 See supra Part II, pp. 167-73.

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databases linking genetic profiles to surnames121 — all of which simply
render DNA identification more “efficient.” In sum, by not resting its
holding on the particular status of arrestees, and by eliding the distinctions between superficial identifiers and biological ones, the Court arguably invited a new era of genetic identification.
B. Myth: Police Will Not, and Legally Cannot, Test
for Any Kind of Sensitive Information
The Court’s redefinition of “identification” matters for a second
reason: it sheds light on the probable constitutionality of future genetic
tests. The opinion talked directly only about analysis of the thirteen
noncoding, “junk” identifiers currently standard in DNA testing,122
making it easy to assume that King leaves no room for testing of more
sensitive information. But look closer.
At numerous points in the opinion, the Court referenced the essential role that DNA plays in law enforcement’s “routine identification
process[es].”123 But again, notice that the Court does not describe
DNA identification as a simple substitute means of checking that a
known suspect is who he says he is. It is not simply looking at genetic
code in place of fingertip whorls and loops. If it were, as the dissent
points out, the majority could have upheld the DNA typing of arrestees for that purpose alone,124 allowing only comparisons between the
suspect’s DNA and that kept in the known offender database, forbidding comparisons with the unsolved crimes database. Instead, the
Court reconceptualized “identification.” It declared a person’s identity
“more than just his name or Social Security number.”125 Rather, the
government’s interest is in knowing “whom they are dealing with.”126
Thus, a person’s “criminal history is a critical part of his identity,”127
as is any information found in “public and police records.”128 In fact,
this interest in identity is capacious enough to include information
about “a record of violence or mental disorder.”129 It may even stretch
as broadly as does Maryland’s bail statute, which points to “family

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
121 See generally Erin Murphy, Relative Doubt: Familial Searches of DNA Databases, 109
MICH. L. REV. 291 (2010).
122 See King, 133 S. Ct. at 1966–67 (differentiating between coding regions, or genes, and noncoding regions that are “not related directly to making proteins” and thus have no external significance).
123 See, e.g., id. at 1965, 1971, 1972, 1976, 1977, 1980.
124 See id. at 1984–85 (Scalia, J., dissenting).
125 Id. at 1971 (majority opinion).
126 Id. at 1972 (quoting Hiibel v. Sixth Judicial Dist. Court, 542 U.S. 177, 186 (2004)).
127 Id. at 1971.
128 Id. at 1972.
129 Id. (quoting Hiibel, 542 U.S. at 186).

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ties, employment status and history, financial resources, reputation,
character and mental condition.”130
What does this matter for DNA? Genetics already has the power
to expose familial ties. Research into still more sensitive information is
ongoing, as briefs to the Court highlighted.131 Government health and
science institutes fund innumerable studies of this kind, and the research arm of the Department of Justice itself is sponsoring research
into the intersection of genetics and delinquency.132 Academic and
commercial sectors also actively pursue links between genetics and
asocial behavior or addiction, and preliminary findings correlating one
genetic variation with violence have recently been published.133 If the
“pedophile gene” were found, or the “violence gene” established, then
surely law enforcement will seek to mine genetic information for that
“identification purpose.” After all, law enforcement needs to know just
whom it is dealing with.
If the prospect of incarcerating people based on a probabilistic predisposition to violence or pedophilia seems fanciful, then recall that we
currently do just that by means of risk assessment tools of questionable reliability.134 Those instruments help make determinations from
bail to sentencing and beyond, including civil commitment of sexual
predators.135 Folding a genetic assessment into the profile — so that
the offender’s report includes both performance on a clinical or actuarial instrument as well as any genetic predispositions that may be of
concern — hardly seems incredible.
Moreover, contrary to the Court’s suggestion, almost none of the
state or federal statutory regimes authorizing DNA collection restrict
such uses of DNA samples. These laws presumably “guard against
further invasion of privacy”136 by restricting genetic testing to “identification” purposes only.137 But as King itself tells us, “identification” is
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
130
131

Id. at 1973 (quoting MD. CODE ANN., RULES § 4-216(f)(1)(C) (West 2013)).
Brief for Genetic Scientists Robert Nussbaum and Sara H. Katsanis as Amici Curiae in
Support of Respondent at 31–32, King, 133 S. Ct. 1958 (No. 12-207) [hereinafter Scientists’ Br.];
Scholars’ Br., supra note 14, at 38–39.
132 See KEVIN M. BEAVER, INTERSECTION OF GENES, THE ENVIRONMENT, AND CRIME
AND DELINQUENCY: A LONGITUDINAL STUDY OF OFFENDING (2010), available at https://
www.ncjrs.gov/app/publications/abstract.aspx?id=253671 (studying five genes for interactions).
133 See Cathy Spatz Widom & Linda M. Brzustowicz, MAOA and the “Cycle of Violence,” 60
BIOLOGICAL PSYCHIATRY 684 (2006) (citing studies of MAOA “violence” gene); see also, e.g.,
ADRIANE RAINE, THE ANATOMY OF VIOLENCE: THE BIOLOGICAL ROOTS OF CRIME
(2013).
134 See generally CHRISTOPHER SLOBOGIN, PROVING THE UNPROVABLE: THE ROLE OF
LAW, SCIENCE AND SPECULATION IN ADJUDICATING CULPABILITY AND DANGEROUSNESS 101–09 (2007).
135 Id. at 108–09.
136 King, 133 S. Ct. at 1979.
137 Id. at 1980 (quoting MD. CODE ANN., PUB. SAFETY § 2-512(c) (West 2013)). Indeed, most
statutes also allow collected samples to be used for “identification” research as well, and research-

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more than a name and social security number,138 which at best erects
a weak barrier against more intrusive forms of genetic testing, and at
worst encourages the exploitation of technology as it moves in new directions. Whereas some of the lower court opinions on compulsory
DNA testing directly disavowed analysis of genetic samples for any
expressive information, the Supreme Court issued no such edicts. Indeed, the Court was not even troubled by the government’s retention
of the full DNA sample, likening it to a urine sample that is tested
only for drugs even though a test could also reveal pregnancy.139 Instead, King says simply that, should police conduct testing for “predisposition for a particular disease or other hereditary factors not relevant
to identity, that case would present additional privacy concerns not
present here.”140
C. Myth: Arrestee Sampling Is Necessary to Solve a Lot of Crime
Lurking beneath the majority’s ringing endorsement of arrestee
DNA testing is, without question, the sense that it is an indispensable
tool in the fight against crime.141 But that assumption proves misguided. Study after study has shown that it is improving the collection
of DNA from crime scenes, not from known offenders, that would
make a real difference in solving cases. As I have written elsewhere,142
the real crisis in DNA collection is not the inadequacy of the tenmillion-plus-person database of known offenders, but that of the
498,600 crime scene sample database.143 Consider that there are typi–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
ers have made use of those provisions. See, e.g., Manfred Kayser et al., Y Chromosome STR Haplotypes and the Genetic Structure of U.S. Populations of African, European, and Hispanic Ancestry, 13 GENOME RES. 624, 631 (2003) (“All the U.S. samples used here were provided to us by
U.S. crime laboratories . . . .”). A Defense Department advisory group has even advocated the
association of genetic samples collected from members of the military to their medical records at
Veterans Hospitals, in order to conduct highly sensitive and nuanced research. JASON, THE
MITRE CORP., THE $100 GENOME: IMPLICATIONS FOR THE DOD 43 (2010).
138 King, 133 S. Ct. at 1971.
139 Id. at 1979; see also United States v. Kriesel, 720 F.3d 1137 (9th Cir. 2013) (rejecting defendant’s interest in return of blood sample taken for DNA testing, citing government’s legitimate interest in retention).
140 King, 133 S. Ct. at 1979 (emphasis added).
141 See, e.g., id. at 1966 (“The advent of DNA technology is one of the most significant scientific
advancements of our era. . . . Since the first use of forensic DNA analysis . . . law enforcement,
the defense bar, and the courts have acknowledged DNA testing’s ‘unparalleled ability both to
exonerate the wrongly convicted and to identify the guilty. It has the potential to significantly
improve both the criminal justice system and police investigative practices.’” (quoting Dist. Attorney’s Office for Third Judicial Dist. v. Osborne, 557 U.S. 52, 55 (2009))).
142 Brandon L. Garrett & Erin Murphy, Too Much Information, SLATE (Feb. 12, 2013, 8:22 AM),
http://www.slate.com/artIcles/news_and_polItIcs/jurIsprudence/2013/02/dna_collectIon_at_the_supreme
_court_maryland_v_king.html.
143 CODIS — NDIS Statistics, FED. BUREAU INVESTIGATION, http://www.fbi.gov/about
-us/lab/biometric-analysis/codis/ndis-statistics (last visited Sept. 29, 2013).

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cally over a million violent crimes per year,144 and yet fewer than half
a million crime scene samples have been loaded into the database in its
fifteen years of existence.145 Several studies, most prominently one by
the RAND Corporation, have concluded that “database matches are
more strongly related to the number of crime-scene samples than to the
number of offender profiles in the database.”146
Yet contrary to the images broadcast to the public on television
shows, forensic evidence, including DNA evidence, is not collected
from the vast majority of crime scenes. Indeed, one recent study of
five jurisdictions found that homicide was the only offense for which
forensic evidence was routinely collected, submitted for testing, and actually tested.147 Physical evidence was collected in fewer than onethird of burglaries,148 robberies,149 and aggravated assaults150 and actually tested in only about one in ten of those cases.151 Another study
of unsolved rape and homicide cases found that, among cases in which
forensic evidence had been collected, “about 40% of the unanalyzed
cases were estimated to have contained DNA evidence.”152 In a perfect world, collection of known offenders’ samples would not affect
crime scene sample processing. But in our resource-constrained reality,
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
144 U.S. DEP’T OF JUSTICE & FED. BUREAU OF INVESTIGATION, CRIME IN THE UNITED
STATES (2011), available at http://www.fbi.gov/about-us/cjis/ucr/crime-in-the-u.s/2010/crime-in
-the-u.s.-2010/violent-crime.
145 CODIS — NDIS Statistics, supra note 143.
146 JEREMIAH GOULKA ET AL., RAND CTR. ON QUALITY POLICING, TOWARD A COMPARISON OF DNA PROFILING AND DATABASES IN THE UNITED STATES AND ENGLAND 1 (2010),
available at http://www.rand.org/content/dam/rand/pubs/technical_reports/2010/RAND_TR918.pdf;
see also HOME AFFAIRS COMMITTEE, THE NATIONAL DNA DATABASE, 2009–10, H.C. 222II, at Ev 34 (U.K.) (Memorandum submitted by GeneWatch UK), available at http://www
.publications.parliament.uk/pa/cm200910/cmselect/cmhaff/222/222ii.pdf (“This is because the
number of crimes detected is driven primarily by the number of crime scene DNA profiles loaded,
not the number of individuals’ profiles loaded or retained.”); id. (finding little gain from “massive
increase” in known offender samples, but significant gains from loading more low-level crime scene samples).
147 JOSEPH PETERSON ET AL., NAT’L INST. OF JUSTICE, THE ROLE AND IMPACT OF FORENSIC EVIDENCE IN THE CRIMINAL JUSTICE PROCESS 8 (2010), available at https://www
.ncjrs.gov/pdffiles1/nij/grants/231977.pdf.
148 Id. at 60 (showing that physical evidence was collected at twenty percent of burglary crime scenes).
149 Id. at 107 (showing that physical evidence was collected at about twenty-five percent of
robbery crime scenes).
150 Id. at 42 (showing that physical evidence was collected at thirty percent of aggravated assault crime scenes).
151 Id. at 8. These dismal numbers do not simply reflect the amenability of the offenses to collection. For instance, one study of burglary and auto theft in five communities found that arrest
and prosecution rates doubled when scenes were examined properly for evidence. JOHN K.
ROMAN ET AL., URBAN INST. JUSTICE POLICY CTR., THE DNA FIELD EXPERIMENT:
COST-EFFECTIVENESS ANALYSIS OF THE USE OF DNA IN THE INVESTIGATION OF HIGHVOLUME CRIMES 4 (2008), available at https://www.ncjrs.gov/pdffiles1/nij/grants/222318.pdf.
152 KEVIN STROM ET AL., THE 2007 SURVEY OF LAW ENFORCEMENT EVIDENCE PROCESSING 3-2 (2009), available at https://www.ncjrs.gov/pdffiles1/nij/grants/228415.pdf.

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the funds lavished on instrumentation and personnel for widespread
arrestee sampling come at the cost of greater backlogs and fewer technicians for crime scene sample collection and analysis. King sadly ignored the real national crisis, which is not that we do not know the
genetic signatures of enough offenders, but that we rarely check for
them at crime scenes.153
IV. KING AND THE FOURTH AMENDMENT
The preceding Part explores the ways in which the King decision
may impact the future of forensic DNA typing. But King is also an
important criminal procedure opinion in its own right. This Part identifies four aspects of the Court’s understanding of the scope and protections of the Fourth Amendment that King exemplifies: the ascendance of “reasonableness balancing” as a dominant mode of
constitutional inquiry; the endorsement of a breathtakingly broad idea
of “discretionless” policing; the divide in the Court as regards the special status of scientific evidence; and the ongoing failure of the Court
to embrace meaningful oversight tools with regard to big data.
A. The Rise of Reasonableness
Reconciling the two clauses of the Fourth Amendment — commonly referred to as the Warrant Clause and the Reasonableness Clause —
has long vexed scholars and practitioners alike. Under the view associated most strongly with Professors Telford Taylor and Akhil Amar,
the clauses are disjunctive — the core of the amendment is “reasonableness,” and the Warrant Clause simply sets the standard applicable
when those devices apply.154 Under the contrary perspective, espoused
over time by an array of scholars, the clauses are conjunctive — the
Warrant Clause sets out the presumptive definition of reasonable.155
The latter view historically dominated both courts and practice,156
and for this reason nearly every leading criminal procedure book organizes its core materials on search and seizure in the same way, with
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
153 The problem of insufficient attention to crime scene sample collection is obscured in part by the
lack of transparency regarding the actual efficiency of DNA databases. The only number regularly
reported is a “hits” number — the number of associations made in the database, without important
information such as whether the hit produced a new suspect, arrest, prosecution, or conviction.
154 See generally TELFORD TAYLOR, TWO STUDIES IN CONSTITUTIONAL INTERPRETATION (1969); AKHIL REED AMAR, THE CONSTITUTION AND CRIMINAL PROCEDURE (1997);
Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757 (1994).
155 See, e.g., Morgan Cloud, Book Note, Searching Through History; Searching For History, 63
U. CHI. L. REV. 1707, 1721–22 (1996); Anthony G. Amsterdam, Perspectives on the Fourth
Amendment, 58 MINN. L. REV. 349, 395 (1974).
156 For a summary of critiques of the Taylor-Amar position, see Erik G. Luna, The Models of
Criminal Procedure, 2 BUFF. CRIM. L. REV. 389, 433–38 (1999).

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“reasonableness” cases (Terry v. Ohio157 serving as the centerpiece) after warrant exceptions, and a short section devoted to warrantless,
suspicionless searches for “special needs” at the end.158 But whereas
“reasonableness” cases used to fashion themselves as deviations from
the rule, paying homage to warrants and suspicion,159 such opinions
increasingly have moved away from these qualifiers to more expressly
embrace pure “reasonableness.”160 This is so much true that in King,
the United States’ brief could credibly open: “The ‘touchstone’ of a
Fourth Amendment analysis ‘is always the reasonableness in all the
circumstances of the particular governmental invasion of a citizen’s
personal security.’”161
But if the Court has slowly acknowledged a portal to a constitutional doctrine more disjunctive than conjunctive, then King may
mark the moment that the door swung wide open. To be fair, it cannot be said that the warrant requirement is dead given a Term that also witnessed the handing down of Missouri v. McNeely.162 But Justice
Kennedy’s opinion signals the demise of the warrant standard, declaring that the “touchstone of the Fourth Amendment is reasonableness,
not individualized suspicion.”163
That statement, alone, is remarkable. It is taken directly from a
footnote in the Samson opinion,164 which upheld the random and
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
157
158

392 U.S. 1 (1968).
See, e.g., YALE KAMISAR ET AL., MODERN CRIMINAL PROCEDURE: CASES, COMMENTS & QUESTIONS xxiii–xxv (13th ed. West 2012); CHRISTOPHER SLOBOGIN, CRIMINAL
PROCEDURE: REGULATION OF POLICE INVESTIGATION 245–354 (LexisNexis 5th ed. 2012);
JAMES B. HADDAD ET AL., CRIMINAL PROCEDURE: CASES AND COMMENTS 661–95 (Foundation Press 7th ed. 2008); JOSHUA DRESSLER & GEORGE C. THOMAS III, CRIMINAL PROCEDURE: INVESTIGATING CRIME 421–44 (West 5th ed. 2013); RONALD JAY ALLEN ET AL.,
CRIMINAL PROCEDURE: INVESTIGATION AND RIGHT TO COUNSEL 598–630 (Wolters Kluwer
2d ed. 2011). But see ARNOLD H. LOEWY, CRIMINAL PROCEDURE: CASES, MATERIALS AND
QUESTIONS (LexisNexis 3d ed. 2010) (grouping cases by subject area, such as automobile searches, border searches); ERWIN CHEMERINSKY & LAURIE L. LEVENSON, CRIMINAL PROCEDURE (Aspen 2008) (placing “special needs” under the warrant exceptions section).
159 See, e.g., Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652–53 (1995) (“Where a search is
undertaken by law enforcement officials to discover evidence of criminal wrongdoing, this Court
has said that reasonableness generally requires the obtaining of a judicial warrant.”).
160 See, e.g., Kentucky v. King, 131 S. Ct. 1849, 1856 (2011) (adopting the disjunctive framework, and describing the Fourth Amendment as “thus expressly impos[ing] two requirements” —
one of general reasonableness and the other of particularity and probable cause where warrants
are required); Brigham City v. Stuart, 547 U.S. 398, 403 (2006) (“[T]he ultimate touchstone of the
Fourth Amendment is ‘reasonableness.’”).
161 U.S. Br., supra note 61, at 11 (quoting Pennsylvania v. Mimms, 434 U.S. 106, 108–09 (1977)
(per curiam)). Mimms upheld the right of an officer to order outside the occupants of a lawfully
stopped car. Mimms, 434 U.S. at 111.
162 133 S. Ct. 1552, 1568 (2013) (finding no per se exigency exception to the warrant requirement for blood intoxication testing).
163 King, 133 S. Ct. at 1970 (quoting Samson v. California, 547 U.S. 843, 855 n.4 (2006)) (internal quotation marks omitted).
164 547 U.S. at 855 n.4.

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suspicionless search of a parolee. But Samson is not an iconic case describing the core of the Fourth Amendment. It was, until King, an
outlier — a case that permitted a warrantless, suspicionless search
primarily for ordinary law enforcement purposes. Doctrinally, it was
explicable only as a reflection of the all but extinguished privacy expectations of those with conditional liberty.165
Even still, tendrils of freestanding reasonableness have curled up in
recent cases in contexts that cannot be described as “exceptional.”
Two years ago, in Kentucky v. King,166 reasonableness seemed to gain
equal footing with, rather than remaining subordinate to, the warrant
presumption. Writing for the Court, Justice Alito disclaimed a clear
textual basis for the superiority of the warrant requirement, stating:
Although the text of the Fourth Amendment does not specify when a
search warrant must be obtained, this Court has inferred that a warrant
must generally be secured. “It is a ‘basic principle of Fourth Amendment
law,’” we have often said, “‘that searches and seizures inside a home without a warrant are presumptively unreasonable.’” But we have also recognized that this presumption may be overcome in some circumstances because “[t]he ultimate touchstone of the Fourth Amendment is
‘reasonableness.’”167

Then, in this Term alone, the Justices thrice confronted the proper
place of “reasonableness” balancing. In Missouri v. McNeely and
Bailey v. United States,168 a stronger version of this argument was
made, but did not win a majority of the Court. Nonetheless, in
McNeely, the opinion by Chief Justice Roberts — joined by Justices
Breyer and Alito — described the text of the Amendment as “not
stat[ing] that warrants are required prior to searches” but conceded
that “this Court has long held that warrants must generally be ob-

–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
165 Id. Samson took the occasional language about “reasonableness” as the touchstone of the
Fourth Amendment a step further, declaring that the “Fourth Amendment imposes no irreducible
requirement of . . . suspicion.” Id. (quoting United States v. Martinez-Fuerte, 428 U.S. 543, 561
(1976)) (internal quotation marks omitted). Martinez-Fuerte, in turn, was conventionally deemed
yet another exceptional case, falling into a category of lax Fourth Amendment protection in light
of the particular exigencies of border control. See, e.g., Overview of the Fourth Amendment, 41
GEO. L.J. ANN. REV. CRIM. PROC. 3, 21–22 (2012) (describing the type of border searches that
are reasonable without any individualized suspicion). But these defined areas — border searches,
corrections, schools, regulated industries, administrative needs, and the like — were considered
categorical exceptions to the default presumption of a warrant or suspicion. See id. In other
words, general reasonableness (in the absence of any suspicion) was treated as an exceptional
standard for exceptional contexts, not simply an alternative formulation of the scope of Fourth
Amendment protection.
166 131 S. Ct. 1849 (2011).
167 Id. at 1856 (alteration in original) (citations omitted) (quoting Brigham City v. Stuart, 547
U.S. 398, 403 (2006)).
168 133 S. Ct. 1031 (2013).

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tained.”169 He continued by asserting that “the ultimate touchstone of
the Fourth Amendment is ‘reasonableness.’”170
Most strikingly, in Bailey v. United States, Justices Thomas, Breyer,
and Alito in dissent advocated a general balancing approach that
underscored the “Fourth Amendment’s ‘ultimate touchstone of . . . reasonableness.’”171 Concurring separately, Justice Scalia, joined by Justices Ginsburg and Kagan, specifically criticized that approach, writing that “[i]t bears repeating that the ‘general rule’ is ‘that Fourth
Amendment seizures are “reasonable” only if based on probable
cause.’”172 They then observed that a rule allowing the detention of
occupants during a search delineated a categorical exception to the
Fourth Amendment that did not depend on any kind of ad hoc balancing in each case.173 In other words, a court might ask whether to create another categorical exception justifying detention of occupants
found outside the immediate vicinity, and that exception might even be
applied internally using a “reasonableness” inquiry. But that differs
dramatically from simply eliminating the first-order “exception to the
default” inquiry in favor of case-by-case assessments under a test as
elastic as “reasonableness.”174
Viewed from this perspective, Maryland v. King lays bare a profound divide between the Justices in dissent and those in the majority.175 The press found the King lineup confounding, but criminal
proceduralists who watch the Court could have called it. Generally
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
169 Missouri v. McNeely, 133 S. Ct. 1552, 1569 (2013) (Roberts, C.J., concurring in part and dissenting in part).
170 Id. at 1569–70 (quoting Brigham City, 547 U.S. at 403) (internal quotation marks omitted).
171 133 S. Ct. at 1048 (Breyer, J., dissenting) (alteration in original) (quoting Kentucky v. King,
131 S. Ct. 1849, 1856 (2011)).
172 Id. at 1044 (Scalia, J., concurring) (quoting Dunaway v. New York, 442 U.S. 200, 213
(1979)).
173 Id. at 1043 (citing Muehler v. Mena, 544 U.S. 93, 98 (2005)) (“The existence and scope of the
Summers exception were predicated on that balancing of the interests and burdens. But — crucially — whether Summers authorizes a seizure in an individual case does not depend on any balancing, because the Summers exception, within its scope, is ‘categorical.’”).
174 See id. at 1044 (“Summers itself foresaw that without clear limits its exception could swallow the general rule: If a ‘multifactor balancing test of “reasonable police conduct under the circumstances”’ were extended ‘to cover all seizures that do not amount to technical arrests,’ it recognized the ‘protections intended by the Framers could all too easily disappear in the
consideration and balancing of the multifarious circumstances presented by different cases.’”)
(quoting Michigan v. Summers, 452 U.S. 692, 705 n.19 (1981)).
175 This debate overshadowed the oral argument in King. As the Deputy Solicitor General argued the reduced expectation of privacy of arrestees, Justice Kagan interrupted, noting that he
“went right into free-form balancing.” But she added, “[t]hat’s typically not the way we do it . . . .
[T]he way we do it is you need a warrant . . . [unless you] put yourself into a well-recognized exception where you can search without a warrant.” Transcript of Oral Argument, supra note 1, at
25. The response? The Court should apply “the key principle of the Fourth Amendment.” Id. at
26 (internal quotation marks omitted). He did not get to finish his thought, but what he meant, of
course, was “reasonableness.”

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speaking, the dissenters believe in the warrant requirement. They favor suspicion-based law enforcement activity. They follow a constitutional presumption that starts at that point and accepts deviation only
in limited circumstances. King simply reflects the nascent alliance
among Justices Scalia, Ginsburg, Sotomayor, and Kagan on these
grounds.176 But, of course, there are only four of them.
The majority, in contrast, believes in the government. They believe
in “reasonableness” and “free-form balancing” as the Fourth Amendment’s anchors,177 not something as rigid as suspicion or a warrant.
That is why Justice Breyer’s “defection” to the right wing poses no
mystery: Justice Breyer is not just an avowed pragmatist, he is also a
big fan of government. It is not left or right that decided this case —
or that decides most criminal procedure cases these days. It is the
classic divide between rules and standards, amplified by a split between
skeptics and believers in the beneficence of unfettered law enforcement.
But if freestanding interest balancing is the new touchstone of
Fourth Amendment inquiry, then casebooks and class discussions deserve overhaul. And, given the increasing disconnect between the traditional Fourth Amendment hierarchy and lived experience, it is perhaps time. Warrants and suspicion are increasingly quaint relics
barely recognizable to those accustomed to warrantless, suspicionless
searches at schools, airports, and the like, not to mention the innumerable ways in which information is “voluntarily” shared in exchange for
cell phone service or an E-ZPass.
Perhaps a new set of debates should dominate criminal procedure
classes, asking questions like: What is the distinction between a search
by the government and one by a private party — in the sense of power
differentials, values, threats to liberty, extant constraints, etc.? How is
police discretion regulated outside of the strictures of the Constitution?
Should we treat disclosures of information differently if done out of
necessity versus convenience, and how would we define those categories if we did? What is the actual incidence of police abuse and over–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
176 They also joined forces in Florida v. Jardines, 133 S. Ct. 1409 (2013) (finding that using a
drug detection dog on the porch of a home is a “search”). Justice Scalia’s shift to a seeming preference for warrants and probable cause marks a departure from some of his earlier positions. In
Vernonia, for instance, he wrote: “As the text of the Fourth Amendment indicates, the ultimate
measure of the constitutionality of a governmental search is ‘reasonableness.’” Vernonia Sch.
Dist. 47J v. Acton, 515 U.S. 646, 652 (1995).
177 Although, it should be noted that Justice Scalia led a majority in a very different case in
2008 that laid down a categorical rule. Joined by Chief Justice Roberts and Justices Kennedy,
Thomas, and Alito in elevating the status of the Second Amendment right to bear arms from a
collective to individual right, he declared: “We know of no other enumerated constitutional right
whose core protection has been subjected to a freestanding ‘interest-balancing’ approach. . . . A
constitutional guarantee subject to future judges’ assessments of its usefulness is no constitutional
guarantee at all.” District of Columbia v. Heller, 128 S. Ct. 2783, 2821 (2008). Little did he know
that his cosigners did not mean that to be the case for long.

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reaching? Under what conditions does it occur, who does it typically
affect, and how is it best curbed? What information might law enforcement need to keep private, and what should be made transparent? What are the risks and benefits of mass surveillance and data
mining? These topics can arise in a criminal procedure class, but they
are rarely the focal point. King signals that it might be time for that
to change.
B. The Fallacy of “Discretionless” Group Surveillance
One common defense of allowing warrantless and suspicionless police activity is that group searches do not require the same robust constitutional check on government power because democratic process effectively serves that role.178 As the theory goes, we need not worry as
much about sobriety checkpoints or airport security running amok, because those searches affect such a wide swath of the population that
any excess could be reined in with one simple election.179 A related
idea is that it is in fact suspicion-based law enforcement itself that invites overreaching and discrimination. In this view, searching every
passenger’s bag is preferable to a regime that isolates particular bags
for heightened attention, because the primary concern with regard to
police is improper profiling, not intrusiveness.
A burgeoning literature debates the merits of this kind of general
warrantless, suspicionless searching as a means of effective and fair
law enforcement.180 But the purpose of this section is not to elaborate
on that discussion or even to apply it, as could be done, to the King
case. Instead, this discussion makes two modest points. First, it argues that embedded in King is an endorsement of the idea that the less
discretion an officer has, the less the Constitution needs to worry about
abuses. And second, and more alarmingly, it suggests that the King
Court’s concept of “discretionless” is dangerously misguided.
The first point is simple. The majority, in upholding the mandatory collection policy, asserted that “the search involves no discretion
that could properly be limited by the ‘interpo[lation of] a neutral mag–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
178 See Richard C. Worf, The Case for Rational Basis Review of General Suspicionless Searches
and Seizures, 23 TOURO L. REV. 93, 197–98 (2007).
179 See id. at 97 (“Commentators have previously observed that general searches and seizures
affect large groups who presumptively can protect themselves in the political arena.”).
180 See, e.g., STEPHEN J. SCHULHOFER, MORE ESSENTIAL THAN EVER: THE FOURTH
AMENDMENT IN THE 21ST CENTURY 93–114 (2012) (arguing that maintaining vigorous Fourth
Amendment safeguards is “more essential than ever”); Eve Brensike Primus, Disentangling Administrative Searches, 111 COLUM. L. REV. 254, 309 (2011) (“In its current form, administrative
search doctrine does little to check arbitrary, unnecessary, or harassing searches.”); Christopher
Slobogin, Government Dragnets, LAW & CONTEMP. PROBS., Summer 2010, at 107, 124–26 (elaborating on the positive and negative repercussions of dragnet searches).

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istrate between the citizen and the law enforcement officer.’”181 Presumably, the Court declared it a discretionless search because the statute applies indiscriminately to all persons arrested for an eligible
charge. In the Court’s words: “The DNA collection is not subject to
the judgment of officers whose perspective might be ‘colored by their
primary involvement in the often competitive enterprise of ferreting
out crime.’”182 Hence, the indiscriminate application of the statute
rendered a magistrate’s eyes pointless.
But — and this is the second point — of course that is not quite
right. The notion that arrestee testing invites no law enforcement discretion makes sense only if one believes that the police lack discretion
in making decisions about arrest.183 Yet law enforcement officers have
broad discretion to select how and where to police. Should officers
seek and execute warrants or cruise the streets? On which neighborhoods should police concentrate? Which people and places should undercover operations target? In fact, the very breadth of law enforcement discretion explains visible indicia of policing disparities.
Nationwide data show highly disproportionate enforcement of especially low-level offenses, such as marijuana possession.184 Traffic enforcement came under such strong fire that a cultural shorthand developed: “driving while Black.”185
Even a statute as narrowly drawn as Maryland’s contains wide
room for police discretion. Get in a fight on a gang street corner and
the police may charge first-degree assault, which is eligible for DNA
collection; engage in fisticuffs at an upscale bar or rowdy college party
and the charge might be something lesser. If anything, arrestee DNA
sampling laws accord exceptional discretion to police. Recall that an
arrestee convicted of an offense that qualifies under the convicted offender laws may be included in the database on that basis, and any arrestee whose case is dismissed should, as a matter of law, receive an
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
181 King, 133 S. Ct. at 1969 (alteration in original) (quoting Nat’l Treasury Emps. Union v. Von
Raab, 489 U.S. 656, 667 (1989)).
182 Id. at 1970 (quoting Terry v. Ohio, 392 U.S. 1, 12 (1968)).
183 Had the Court imposed a judicial probable cause determination, then it might have made
a plausible claim to the notion that the finding of probable cause eliminated all discretion. In
other words, the Court might have reasoned: the decision to arrest may be discretionary, both in
that police may erroneously arrest without proper authority and in that police may arrest some
persons for an offense while ignoring others who commit the same offense, but once a judicial
officer finds probable cause, there is no discretion to exclude from testing those individuals
against whom charges have been legally laid. But such a view depends on the check of the magistrate’s finding — there is no way to describe arrests as nondiscretionary if governed by nothing
more than police discretion.
184 AM. CIVIL LIBERTIES UNION, THE WAR ON MARIJUANA IN BLACK AND WHITE 17
(2013), available at http://www.aclu.org/files/assets/aclu-thewaronmarijuana-rel2.pdf.
185 See MICHELLE ALEXANDER, THE NEW JIM CROW: MASS INCARCERATION IN THE
AGE OF COLORBLINDNESS 133–35 (2012).

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expungement. That leaves only those arrested for an offense that qualifies for arrestee sampling, but convicted of an offense that does not
qualify for convicted offender sampling, as the population netted by
arrestee laws. Conviction of any offense, in other words, retroactively
validates the sampling of an arrestee for a qualifying-arrest offense,
even if conviction of that offense would not.
That is essentially what happened in King’s case: he was charged
initially with first- and second-degree assault, and the first-degree
charge rendered him eligible for DNA collection under the arrestee
statute, even though his ultimate conviction for second-degree assault
would not have qualified him for inclusion in the convicted offender
database. In his case, the initial charging decision may well have been
wholly detached from the DNA statute, but it surely does not strain
the imagination to consider that police may begin selecting charges
with one eye on the DNA collection statute. A retired police superintendent in the United Kingdom alleged that officers there did just that
in a similar situation,186 and police in the United States have likewise
exhibited a willingness to adjust charges for strategic reasons.187
Of course, the Court knows very well that police exercise broad discretion in their decisions to arrest, as it has repeatedly admonished litigants
accordingly, perhaps most vividly in Town of Castle Rock v. Gonzales.188
So why does the majority insist that the Maryland statute does not expose
individuals to the subjective “judgment of officers”?189 Why does it see
no benefit in the “interpo[lation of] a neutral magistrate”?190
Those two throwaway lines may provide ominous insight into the
depth of the majority’s commitment to untethering Fourth Amendment doctrine from the anchors of suspicion and warrants. The opinion — by directly telling us that the Fourth Amendment’s touchstone
is not individualized suspicion191 — is a preview of a new doctrinal
foundation, but these two lines are the explicative reasoning. In the
majority’s view, warrants and suspicion are doctrinally improper
foundations because they unnecessarily inhibit the freedom to police in
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
186 Police Making Arrests ‘Just to Gather DNA Samples,’ BBC NEWS (Nov. 24, 2009), http://
news.bbc.co.uk/2/hi/uk_news/8375567.stm.
187 See DAVID N. KELLEY & SHARON L. MCCARTHY, THE REPORT OF THE CRIME REPORTING REVIEW COMMITTEE TO COMMISSIONER RAYMOND W. KELLY CONCERNING
COMPSTAT AUDITING 42 n.109 (2013), available at http://www.nytimes.com/interactive/2013/07
/03/nyregion/03crime-doc.html (report on downgrading of charges for crime statistics purposes).
188 125 S. Ct. 2796, 2805–06 (2005) (“A well established tradition of police discretion has long
coexisted with apparently mandatory arrest statutes.”).
189 King, 133 S. Ct. at 1970.
190 Id. at 1969 (alteration in original) (quoting Nat’l Treasury Emps. Union v. Von Raab, 489
U.S. 656, 667 (1989)).
191 Id. at 1970.

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their absence.192 The solution to bad policing is not the Fourth
Amendment; it is the ballot box.193
Such reasoning exposes a majority that is either tone-deaf to or uninterested in the possible inequities of unfettered police discretion and
the democratic process problems that justify constitutional interventions. Indeed, refusal to acknowledge the extraordinary police discretion at play enables the majority to turn a blind eye to the arbitrariness of allowing police charging decisions to dictate database inclusion.
It also ignores the absurdity of relying on the virtues of democratic debate regarding who should or should not be in the DNA database
when the people’s decisions about the proper scope of the database are
readily overridden by police officers exercising broad discretion.
But this majority is simply not concerned with the possibility of racial and socioeconomic bias, vindictive or strategic exercises of charging discretion, or the singling out of subpopulations for a certain kind
of exceptionally invasive policing. And whereas a majority blind to
the discretion in arrest and charging decisions is unnerving, a majority
that adds to that blindness a belief that “discretionless” policing requires minimal Fourth Amendment intervention should frighten us all.
C. The Truth Machine
King’s third important implication for criminal procedure doctrine
derives from its relationship to a different set of constitutional rules altogether: those emanating from the Confrontation Clause.194 The fault
line that divides the majority and the dissent may go beyond differing
perspectives on the value of warrants and suspicion or basic trust versus skepticism in the unfettered exercise of the police power. It may
well extend to divergent views about the promise of scientific certainty.
The majority opinion expresses almost giddy enthusiasm for scientific achievement. The Court gushes at the outset that “[t]he advent of
DNA technology is one of the most significant scientific advancements
of our era.”195 The majority then links DNA to “scientific advancements” over time that have improved law enforcement’s identification
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
192 It should be noted that this is consistent with this group of Justices’ equally strong commitment to redefining the exclusionary rule as applicable only to deliberate malfeasance. See, e.g.,
Herring v. United States, 129 S. Ct. 695 (2009).
193 This view is also consistent with one segment of the Court’s recent insistence that it is Congress, not the courts, that is in a better place to seek redress for constitutional violations. See, e.g.,
United States v. Jones, 132 S. Ct. 945, 964 (2012) (Alito, J., concurring) (“A legislative body is well
situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and
public safety in a comprehensive way.”).
194 “In all criminal prosecutions, the accused shall enjoy the right to . . . be confronted with the
witnesses against him.” U.S. CONST. amend. VI.
195 King, 133 S. Ct. at 1966. The Court later marvels that “[n]ew technology will only further
improve . . . speed and . . . effectiveness” of DNA testing. Id. at 1977.

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capacity,196 locating DNA as the most recent installment in a tradition
that began with photography, progressed to Bertillonage, and then,
most recently, turned to fingerprinting.197
In the Court’s history, each of these techniques simply improved
upon the previous incarnation. Tellingly, the Court papers over any
admission of flaws, errors, or mistakes. The Court states that photography has been used to identify offenders almost since its invention,198
but neglects to state that eyewitness misidentification — often aided by
photo arrays — is the leading cause of erroneous convictions.199 Similarly, the Court’s fervor for Bertillonage entirely overlooks that it was
partially discredited as “science” when, in a notorious case, an inmate
in Leavenworth prison purportedly matched the “individualized”
measurements of another prisoner who, in a coincidence too rich for
words, also shared his name.200 Even fingerprinting has suffered its
share of attack. The Court cites Professor Simon Cole’s pathbreaking
book in its discussion of photographs, but neglects that the main thrust
of his text was to reveal the lack of foundation for fingerprints as a
“science” capable of individualization.201
The majority’s rosy belief in the infallibility of the “identification
sciences” explains its summary dismissal of King’s privacy and liberty
interests — since the only such interests are those of the criminal wishing not to get caught. It likewise explains the lack of even fleeting reference to DNA typing’s own significant history of error — including
mixed samples, incompetent analysts, unexpected transfer, and the
like — that has led to false accusations and even convictions.202 It also marks an ideological departure from the midcentury Supreme
Court, which explicitly found “no merit in the suggestion . . . that fingerprint evidence, because of its trustworthiness, is not subject to the
proscriptions of the Fourth and Fourteenth Amendments.”203
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196
197
198

Id. at 1975.
Id. at 1975–76.
Id. at 1975 (citing SIMON A. COLE, SUSPECT IDENTITIES: A HISTORY OF FINGERPRINTING AND CRIMINAL IDENTIFICATION 20 (2002)).
199 See BRANDON L. GARRETT, CONVICTING THE INNOCENT: WHERE CRIMINAL PROSECUTIONS GO WRONG 52–53 (2011) (“Among the 161 exonerees studied, 118 were identified in a
photo array . . . .”). The Court’s indifference to the overwhelming social-scientific evidence concerning eyewitness misidentification also emerged in its recent opinion in Perry v. New Hampshire, 132 S. Ct. 716, 730 (2012) (rejecting due process claim because police did not create the conditions of unreliability).
200 COLE, supra note 198, at 140–44.
201 See id. at 270–86.
202 See generally William C. Thompson, Forensic DNA Evidence: The Myth of Infallibility, in
GENETIC EXPLANATIONS: SENSE AND NONSENSE 227 (Sheldon Krimsky & Jeremy Gruber
eds., 2013); Scholars’ Br., supra note 14, at 25–36 (cataloging errors); 4 DAVID FAIGMAN ET AL.,
MODERN SCIENTIFIC EVIDENCE: THE LAW AND SCIENCE OF EXPERT TESTIMONY
§ 31:15 (2012) (listing fifteen laboratories involved in DNA-related scandals).
203 Davis v. Mississippi, 394 U.S. 721, 723–24 (1969).

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But it also exposes something more fundamental about the divide
between the Justices in the majority and those in the dissent that matters greatly as scientific and technological evidence continues to flood
into the criminal justice system. Specifically, the Justices in the majority believe in the possibility of scientific certainty, and either ignore the
possibility of error or view the risks as inconsequential.204 The dissenters, in contrast, view technology as the appendage of the persons
who wield it, subject to the same flaws and abuses that characterize
any human endeavor.
This division played out in King, but it has also played out in a
seemingly unrelated area that raises these questions even more directly: the Confrontation Clause. In a series of cases addressing the Sixth
Amendment and scientific evidence, the very same core constellation
of Justices has squared off against one another. Melendez-Diaz v.
Massachusetts,205 Bullcoming v. New Mexico,206 and Williams v. Illinois207 each grapple with the obligation of the government to introduce firsthand testimony versus rely on hearsay witnesses or documents, about the results of forensic tests. In those cases, Chief Justice
Roberts and Justices Kennedy, Breyer, and Alito formed a regular
block — dissenting together in the first two cases and finally forming a
majority (with Justice Thomas) to triumph in the last.208 In contrast,
Justice Scalia has emerged as the strongest voice and architect of the
opposing view, and most recently (in Bullcoming and Williams) counted Justices Ginsburg, Sotomayor, and Kagan as his allies.209
The same division of Justices, and relationship to scientific truth, is
evident in King.210 The skepticism that motivated the dissenters in
Williams to open their opinion with the prospect of a testing error211
also explains their intuition in King that universal DNA testing is not
harmless, but “scary.”212 Conversely, the same trust that leads Justice
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204 A more cynical view might find the majority’s faith in scientific certainty opportunistic or
ideological, in light of the reticence of some of those same Justices to express such unequivocal
faith in the accuracy of DNA testing when it comes to its exculpatory use. See, e.g., Dist. Attorney’s Office v. Osborne, 129 S. Ct. 2308, 2327 (2009) (Alito, J., concurring) (“DNA testing — even
when performed with modern STR technology, and even when performed in perfect accordance
with protocols — often fails to provide ‘absolute proof’ of anything.” (quoting id. at 2337
(Stevens, J., dissenting))).
205 129 S. Ct. 2527 (2009).
206 131 S. Ct. 2705 (2011).
207 132 S. Ct. 2221 (2012).
208 Melendez-Diaz, 129 S. Ct. at 2530; Bullcoming, 131 S. Ct. at 2709; Williams, 132 S. Ct. at 2227.
209 Melendez-Diaz, 129 S. Ct. at 2530; Bullcoming, 131 S. Ct. at 2709; Williams, 132 S. Ct. at 2227.
210 With the slight exception of Justices Sotomayor and Kagan when it comes to MelendezDiaz, which preceded their appointments.
211 Williams, 132 S. Ct. at 2264 (Kagan, J., dissenting); see also Bullcoming, 131 S. Ct. at 2714
(rejecting the argument that the analyst was a “‘mere scrivener’” of “a machine-generated number” (quoting State v. Bullcoming, 226 P.3d 1, 9 (N.M. 2010))).
212 133 S. Ct. at 1989 (Scalia, J., dissenting).

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Kennedy to write in his Bullcoming dissent that “neither cause nor necessity” justifies “a constitutional bar on the admission of impartial lab
reports like the instant one, reports prepared by experienced technicians in laboratories that follow professional norms and scientific protocols,”213 surfaced in his majority opinion in King, where he lauded
the “unparalleled accuracy” of DNA testing with nary a mention of the
incessant stories of lab scandals and mistakes.214
The Court will continue to confront technology cases, and particularly cases involving scientific evidence. Some will present as questions of criminal procedure, others as evidence, perhaps some as substantive law. King is instructive in that it renders more visible a
relationship between seemingly discrete doctrines. It reveals a division
among the Justices couched in the language of constitutional text, but
originating from a disagreement about the fundamental promise and
potential of science to solve criminal justice problems.
D. The Infallibility of Big Data
The final overarching trend illuminated by King relates to the
Court’s ongoing refusal to regulate the database when used as a tool of
law enforcement. At its core, King is a database case — not just about
the power of government to compel information from a person but also to keep, search, or manipulate that information for perpetuity.
Yet to read King, it is barely evident that there even is a database
involved. The Court made passing reference to the database search
that linked King to the offense at hand,215 but in the words of the dissent, the opinion is “strangely silent on the actual workings of the
DNA search at issue.”216 The Court also seemed to view the introduction of the database as insignificant, treating the digitalization and
databasing of fingerprints as simple changes in “efficacy . . . not constitutionality.”217 In other words, to the extent that databasing and datamining extended the portfolio of DNA beyond that of fingerprints and
mug shots, the Court praised the older methods for catching up, rather
than viewed the database as presenting a distinct set of constitutional
issues. There is even some indication that the majority did not quite understand the basic operation of the database, since it described testing of
samples for nonidentification purposes (i.e., biological DNA testing) as
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213
214
215

131 S. Ct. at 2726 (Kennedy, J., dissenting).
133 S. Ct. at 1972; see also id. at 1976.
Id. at 1968. Databases come up again when the Court points to the laws limiting what information may be uploaded and the kinds of searches allowed, id. at 1967, but all of this is presented as background.
216 Id. at 1983 (Scalia, J., dissenting).
217 Id. at 1976–77 (majority opinion).

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equivalent to “tests for familial matches” (which are primarily searches of
the database, not biological or genetic tests of relatedness).218
In short, the import of a database of genetic information never features as a central part of the Court’s analysis of the constitutionality of
the law enforcement action. Instead, the Court seems to summarily
conclude that “[i]t is reasonable in all respects for the State to use an
accepted database to determine if an arrestee is the object of suspicion”
without detailing precisely what makes a database “accepted.”219
Even the dissent largely ignores the data retention aspect of the case in
favor of focusing on collection.220
Accordingly, a host of important questions — database quality control, the possibility for leaks or research without informed consent, the
scope and efficacy of privacy guarantees, and the permissible length of
retention and kinds of searches — go largely unexamined.221 And this
indifference to database accuracy and privacy is not atypical, as underscored by the Court’s similar indifference in two recent cases —
Florence v. Board of Chosen Freeholders222 and Herring v. United
States.223 In both cases, the Court upheld police searches based on
warrants erroneously left in a computer database.224 And in both cases,
the majority skirted questions about the significance of the lack of reliability of the database, the regularity of maintenance, and the existence of documentation regarding the rate of past error or the probability of future mistakes.225
King presented yet another opportunity to ask an increasingly recurring question on the Court’s docket: how does the Constitution regulate big databases? But the degree to which the King Justices were
not even incidentally inclined to view it as a database case suggests
the answer is, “it does not.” To be sure, big data is vexing to the criminal justice system, and to the courts, for both doctrinal and policy rea–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
218 Id. at 1967. Maryland does prohibit familial searches. MD. CODE ANN., PUB. SAFETY
§ 2-506(d) (West 2009) (“A person may not perform a search of the statewide DNA data base for
the purpose of identification of an offender in connection with a crime for which the offender may
be a biological relative of the individual from whom the DNA sample was acquired.”). Nothing
in the law prohibits familial testing, however.
219 King, 133 S. Ct. at 1974.
220 The dissent’s irritation with the majority stems from frustration with the attempt to pass off
as an “identification check” the search of the forensic unknown database, rather than just the
known offender database (which, in turn, contains no direct identifying information). Id. at 1984–
85 (Scalia, J., dissenting).
221 But see id. at 1968 (majority opinion) (summarily reciting the quality assurance provisions).
222 132 S. Ct. 1510 (2012).
223 129 S. Ct. 695 (2009).
224 Florence, 132 S. Ct. at 1514; Herring, 129 S. Ct. at 698.
225 Florence, 132 S. Ct. at 1514 (referring only to “some unexplained reason”); Herring, 129 S.
Ct. at 704. In fact, in Herring the majority so trusted the government’s facial assertions of accuracy that it dismissed initial contradictory testimony by a clerk, who had stated under oath that
miscommunications occurred in the past. Id. at 704 n.5.

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sons that commentators including myself have well aired.226 But overlooking the imperative of such an inquiry is a mistake. The job of the
Fourth Amendment should be to ensure the accuracy and reliability of
big data as vigorously as it might police a tipster.227 Whatever its doctrinal response, it is discouraging that the Court seems determined to
ignore these difficult questions and allow the digitalization of information to escape constitutional notice of any meaningful kind.
V. CONCLUSION
Without question, Justice Alito was right to call King one of the
most important criminal procedure cases in recent history. Whether it
marks the beginning of a new era, however, only time will tell. What
is clear, and what this Comment hoped to convey, is that King carries
profound significance for DNA testing of arrestees, for forensic DNA
testing more generally, and for the future of the Fourth Amendment.

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226 See, e.g., Erin Murphy, Databases, Doctrine & Constitutional Criminal Procedure, 37
FORDHAM URB. L.J. 803, 826 (2010).
227 See Illinois v. Gates, 462 U.S. 213 (1983).