Justice John Paul Stevens Comments On The Recent Maryland v. King DNA Decision

Retired Justice John Paul Stevens shares his views in a recent speech on the divided opinion in Maryland v. King, 569 U.S. _, 133 S.Ct. 1958 (2013) in which the Court upheld the collection and use of DNA samples during the booking process for arrests involving serious offenses; Justice Stevens points to four "considerations [that] may well support the majority's holding"

As recently noted in the Federal Evidence Blog, on June 3, 2013, in a 5 to 4 decision, the Supreme Court held that the Fourth Amendment was not violated when law enforcement obtains a DNA sample from an arrestee of a serious offense without a search warrant in Maryland v. King, 569 U.S. _, 133 S.Ct. 1958 (2013). See Supreme Court Watch: DNA Evidence Collection From Arrestees Is Reasonable Under The Fourth Amendment. In the case, Justice Anthony Kennedy authored the majority opinion which was joined by Chief Justice John G. Roberts, Jr., and Justices Clarence Thomas, Stephen G. Breyer, and Samuel Alito, Jr. Justice Antonin Scalia wrote the dissent and was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor, and Elena Kagan.

Shortly after the opinion was issued, on June 14, 2013, retired Justice John Paul Stevens shared his perspective on the case. He did so in a speech before the American Constitution Society Convention at the Capital Hilton Hotel in Washington, D.C. He offer a unique vantage based on his experience, which includes five years as a Judge on the United States Court of Appeals for the Seventh Circuit (during 1970–1975), and 35 year of service as an Associate Justice of the Supreme Court (from December 19, 1975 to June 29, 2010).

Justice Stevens reviewed the opinion and noted how he would have voted. He contrasted the majority opinion of Justice Kennedy with the dissent of Justice Scalia. As he summarized, the majority “concluded that the procedure, which admittedly constituted a ‘search’ within the meaning of the Fourth Amendment, was reasonable as a part of the routine identification process followed when taking arrested persons into custody.”

Instead, as Justice Stevens described, the dissent:

argued that the real purpose for the search was to solve crimes, rather than to identify persons that the State had taken into custody, and that the Fourth Amendment categorically forbids searching anyone for evidence of a crime if there is no basis for believing the person is guilty of a crime or is in the possession of incriminating evidence. He colorfully stated that 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." He ended his opinion expressing the "hope that today's incursion on the Fourth Amendment, like an earlier one, will some day be repudiated." In a footnote to that conclusion, he wrote: "Compare, New York v. Belton, 453 U.S. 454 (1981) (suspicionless search of a car permitted upon the arrest of the driver) with Arizona v. Gant, 556 U.S. 332 (2009) (on second thought, no)."

Justice Stevens found the footnote amusing particularly since he dissented in Belton and authored the opinion in Gant. He found the distinction by Justice Scalia to be unpersuasive to how he viewed the case. He identified four "considerations [that] may well support the majority's holding":

First, unlike the evidence that may be obtained by examining the contents of containers and clothing during the search of an automobile, taking a DNA sample reveals no information about the private, non-criminal conduct of the object of the search.… It seems to me that taking a DNA sample - or a fingerprint sample - involves a far lesser intrusion on an ordinary person's privacy than a search that allows an officer to rummage through private papers.

Second, the proven accuracy of DNA samples in both establishing guilt and exonerating the innocent who have been mistakenly convicted or accused, favors greater rather than lesser use of DNA evidence. Rules that unnecessarily preclude the use of such evidence may impede the search for truth without providing any meaningful protection for privacy interests.…

Third, the public interest in creating accurate databases about individuals who are reasonably believed to have been engaged in significant criminal behavior should not be ignored. The Maryland system did not apply indiscriminately to the entire population, but only to those for whom there was probable cause to justify their arrest for a violent crime. It is not entirely accurate to characterize the taking of a DNA sample from members of that class as a "suspicionless search" even though they may not be convicted of any crime. More complete and more accurate databases may be useful, not only for the purpose of solving crimes, but also for the purpose, for example, of identifying persons who should not be permitted to purchase handguns.

Fourth, expanding DNA data-bases will certainly have an increasingly significant deterrent effect on potential rapists. The deterrent value of increasing punishment for crimes is always qualified by the criminal's confidence in his ability to avoid detection. But every potential rapist whose DNA is already available to the law enforcement community will surely know that his identity will be known to the police if he commits a rape.

In sum, although I commend Justice Scalia's characteristically lucid opinion to you, and admittedly have not read the briefs in the case, I think I would have voted with the majority if I were still on the Court.

One can query how the opinion may have been affected if Justice Stevens were still on the Supreme Court. Justice Kagan, who filled the seat of Justice Steven on August 7, 2010, joined the dissent in Maryland v. King, 569 U.S. _ (2013). One can assume that the majority opinion may have been less divided, resulting in a 6 to 3 (instead of a 5 to 4) majority of the Court. Would Chief Justice Roberts have asked Justice Stevens to author the opinion as the most senior Justice in the majority? If so, perhaps some of the bases Justice Stevens identified in his speech may have been amplified in the opinion. Or Justice Stevens may have asked Justice Kennedy, as the author, to underscore some of these same points. The answer to these questions will never be known. Nonetheless, it is informative to have the views of Justice Steven on this significant Fourth Amendment case. As a strong proponent of Fourth Amendment rights, Justice Steven does not conclude that the Fourth Amendment is violated or that the encroachment of rights is significantly undermined as others, including in the dissent, have suggested. In his view, the issue is not a controverial one and the decision advances some significant criminal justice interests in the face of a minimal invasion of privacy during the arrest booking process.

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