By Colin Starger
Soon after oral argument in Maryland v. King, I posted to this site a Visual Guide that aimed to “highlight the most representative and influential opinions” behind the Fourth Amendment doctrinal dispute in that case. Now that the Supreme Court has rendered judgment in King, the time has come to revisit the Guide, assess its predictive analysis, and update the prior maps to reflect the new doctrinal territory. This post does just that.
Virtually all observers—I among them—had predicted a split decision in King and the final vote was indeed 5 to 4. Kennedy wrote the majority opinion (joined by Roberts, Thomas, Breyer and Alito) and upheld as constitutional Maryland’s practice of collecting and analyzing the DNA of those arrested for, but not convicted of, certain serious crimes. Justice Scalia (joined by Ginsburg, Sotomayor, and Kagan) penned a withering dissent asserting that the Fourth Amendment should prohibit DNA testing of arrestees.
On its own, King’s outcome says nothing about my predictive analysis since I never attempted to foretell how the particular Justices’ votes would break. On the other hand, the Guide did claim to identify the competing lines of opinions that would frame the doctrinal analysis of majority and dissent. The success or failure of the Guide is thus best judged by comparing its proposed “doctrinal maps” to the actual doctrinal justifications advanced by Kennedy and Scalia in their respective King opinions.
Let’s start with Kennedy’s majority opinion. In the Guide, Map 1 suggested that Maryland’s argument for the constitutionality of collecting arrestee DNA depended on two main lines: (1) the Terry line approving as reasonable certain warrantless searches (most recently including Samson and Hiibel); and (2) the search-incident-to-arrest line approving as reasonable broad searches post-arrest. In the text accompanying the map, I posited that victory for Maryland required a majority being persuaded either that “DNA testing of arrestees should be viewed as a routine procedure” under the Terry line or that arrest sufficiently “diminished [the] privacy interests of arrestees… to merit warrantless searches [of their DNA]” under search-incident-to-arrest doctrine.
As anticipated, the Terry line did play a major role in King. Kennedy explicitly cited almost all of the Terrycases featured in Map 1 of the Guide[i]—Samson, Hiibel, Houghton, Vernonia School, Von Raab, and Martinez-Fuerte.[ii] In particular, Kennedy leaned heavily on Samson for the key proposition that “the touchstone of the Fourth Amendment is reasonableness, not individualized suspicion” (Slip Op. at 10) and then Hiibel for the even more critical claim that police actions aimed at establishing a suspect’s identity—including his criminal history—are constitutionally reasonable (Slip Op. at 11–12 , 14). These were vital links in Kennedy’s argument for the reasonableness of routinely taking the DNA of arrestees and comparing that DNA to the unsolved crimes database.
The only Terry-line case given any prominence by Kennedy that the Guide failed to identify was Illinois v. McArthur—a 2001 Breyer opinion finding that a police officer's refusal to allow a suspect to enter his residence until a search warrant was obtained was a “reasonable seizure” that did not violate the Fourth Amendment. Though I certainly didn’t see it coming, giving prominence to a Breyer Terry opinion makes rhetorical sense. It directly appeals to Breyer and his occasional tendency to join the “conservative” Justices on Fourth Amendment cases. Significantly, Breyer did in fact abandon his “liberal” colleagues in King and his vote was vital to the Kingmajority.
Kennedy’s King opinion also placed great stock in search-incident-to-arrest doctrine. Although he did not take up Maryland’s provocative invitation to rely upon Powell’s concurrence in Robinson, Kennedy did rely heavily on Rehnquist’s majority opinion from that case. Specifically, Robinson backed Kennedy’s position that police both have the authority to conduct reasonable booking searches and that the standards governing such searches are less strict than Terry (Slip Op. at 18). Per Kennedy, DNA testing is now just another routine booking search.
Though I put Robinson on Map 1,[iii] the Guide noticeably failed to anticipate another key opinion relied on by Kennedy—Florence v. Board of Chosen Freeholders of County of Burlington. Decided last Term, Florenceheld that strip searching detainees jailed for minor violations did not violate the Fourth or Fourteenth Amendments. Kennedy used Florence (itself another Kennedy opinion) to demonstrate the radically reduced nature of arrestee’s expectation of privacy. He reasoned that if arrestees can be made to “lift their genitals or cough in the squatting position,” then the relatively minimal intrusion of a cheek swab to obtain a DNA sample must be permitted (Slip Op. at 24-25). In hindsight, this doctrinal logic seems obvious. Yet since Maryland did not cite to the case in its briefing, I unwisely underestimated Florence’s potential relevance.
Map 1-a below corrects such earlier missteps and represents the major opinion lines actually relied on by the King majority. As before, this map is not the territory—it purports only to represent the most influential cases in Kennedy’s Fourth Amendment framework rather than every single case that played a role in his argument.
Before moving on to discuss Scalia’s dissent in King, I want to briefly flag two opinions that did not appear in the original Guide’s Map 1 but are now represented in Map 1-a—Alito’s dissent in Arizona v. Gant and Stewart’s majority in New York v. Belton. Decided in 1981, Belton had authorized routine police searches of vehicle passenger compartments upon arrest of drivers. Gant overruled Belton and prohibited such searches unless police have reasonable suspicion that compartment contains evidence easily destroyed or germane to the offense of arrest. Although Kennedy did not directly cite either of these cases in King, I argue that they form an important part of the Fourth Amendment tradition informing his opinion. (I will return to this argument below.)
Let us turn now to Scalia’s dissent in King. Compared to Kennedy’s majority opinion, Scalia’s dissent contains few citations to Fourth Amendment precedent. The relative poverty of Scalia’s doctrinal discussion derives from his observation that “the legitimacy of the Court’s method and the correctness of its outcome hinge[s] entirely on the truth of a single proposition: that the primary purpose of these DNA searches is something other than simply discovering evidence of criminal wrongdoing.” (Slip Op. at 3–4). In his dissent, Scalia understandably devoted far more ink to denying the truth of this single proposition than he did to analyzing doctrine. However, those opinions that Scalia did rely upon to state his basic Fourth Amendment framework were largely anticipated by the Guide and visualized in its Map 2.
Scalia’s brief discussion of precedent primarily focused on Terry-line cases. Here, Scalia effectively summarized the whole doctrine by citing Edmond’s observation that the Court had never permitted searches without individualized suspicion where “the primary purpose [of the search] was to detect evidence of ordinary criminal activity.” (Slip Op. at 3). Edmond, of course, was identified as a key case in the Guide. Scalia did not cite to the other opinions from this line featured in the Guide – the majority opinions from Ferguson and Prouse and the dissents from Vernonia School and Von Raab—but these omissions seem more attributable to the brevity of Scalia’s analysis than to my missing the doctrinal mark.
Admittedly, Scalia did rely upon one Terry-line case not discussed in the Guide – Chandler v. Miller, which held that Georgia’s requirement that candidates for office pass a drug test did not fit within the “closely guarded category of constitutionally permissible suspicionless searches.” (Slip Op. at 3). In this instance, I had actually made a conscious choice to leave Chandler out of the Guide because it did not seem properly connected to an affirmative doctrinal tradition. Rather, Ginsburg’s majority opinion devoted its argument to distinguishing itself from three previous cases where the Court had approved “special needs” searches (Skinner, Vernonia School, and Von Raab). To my mind, this made Chandler difficult to fit into a real “line” of cases. In retrospect, however, I should have included it.
This brings us finally to Scalia’s discussion in King of search-incident-to-arrest doctrine. Here, Scalia really only relied upon one case—Gant—also the primary search-incident-to-arrest case featured in Map 2 of the Guide. Scalia used Gant to establish the proposition that the “objects of a search incident to arrest must be either (1) weapons or evidence that might easily be destroyed, or (2) evidence relevant to the crime of arrest.” (Slip Op. at 4). While this brief quote represents the sum of Scalia’s formal doctrinal analysis, his dissent also contains with a fascinating allusion to search-incident-to-arrest debates that should not be overlooked.
In his dissent’s last above-the-text line, Scalia proclaimed that “I [ ] dissent, and hope that today’s incursion upon the Fourth Amendment, like an earlier one, will some day be repudiated.” (Slip Op. at 18). After the “like an earlier one” phrase, he dropped a wicked footnote:
Compare, New York v. Belton, 453 U.S. 454 (1981) (suspicionless search of car permitted upon arrest of a driver), with Arizona v. Gant, 556 U.S. 332 (2009) (on second thought, no).
The playful parentheticals are chuckle inducing; they also make a deeper point about the evolution of Fourth Amendment doctrine. The Court has a long track-record of changing its mind about the rules governing searches incident to arrest. Gant overruled Belton and thus vindicated the Belton dissenters. Belton arguably changed the course set by Chimel and certainly seemed sympathetic to the views of the Chimel dissenters. Finally, Chimel itself explicitly adopted the views of Frankfurter’s Rabinowitz dissent.
This back-and-forth describes the essential movement of the doctrinal dialectic that the Visual Guide attempted to illustrate. By aligning himself with the repudiation of Belton in Gant, Scalia effectively accused theKing majority of adopting the position of the Gant dissenters. Of course, four of those in the King majority—Roberts, Kennedy, Breyer, and Alito—did indeed dissent in Gant. (Only Justice Thomas “switched.”) And Kennedy’s majority opinion does indeed seem cut against the narrow view of the police’s search-incident-to-arrest power articulated in Gant. Thus, this is the justification for my earlier argument, represented in Map 1-aabove, that Kennedy’s King opinion is connected by tradition to Alito’s Gant dissent.
Map 2-a below is the updated version of Map 2 from the original Guide. It represents the main lines of Scalia’s doctrinal argument in his King dissent. As it shows, Scalia’s dissent is in line with the strong the Fourth Amendment tradition embraced by Justices Brennan and Frankfurter in their Belton and Rabinowitz dissents respectively. Clearly, Scalia hopes that his protest over the collection of DNA from arrestees will be redeemed as were those earlier protests against post-arrest warrantless searches of defendants’ cars (authorized by Belton – overruled by Gant) and offices (authorized by Rabinowitz – overruled by Chimel).
To complete the updating mission of this post, Map 3-a brings the competing lines of both majority and dissent in King into one frame. Though necessarily incomplete, I hope that this map presents a sufficiently rich and colorful picture of the relevant Fourth Amendment “family tree” at issue in the King debate that it may serve as a handy reference. Furthermore, I hope that the process of creating and revising “doctrinal maps” as illustrated in the original Visual Guide and in this post is one that has some appeal to Court scholars and practitioners. Please contact me if you are interested in learning more about the Supreme Court Mapping Project.