This is a follow-up to my previous post on the Supreme Court’s recent decision in Maryland v. King, which upheld, over a scathing dissent by Justice Scalia, the constitutionality of DNA searches of arestees for “serious offenses” under Maryland’s public safety statute. One open question after King is how the majority’s rule would apply to other states’ DNA collection statutes, which permit DNA collection for a broader range of offenses than does Maryland’s statute.
The King majority repeatedly limited its holding to DNA searches that followed arrests for a “serious offense.” But what counts as a serious offense? This is a live question in Haskel v. Harris, the ACLU’s challenge to California’s DNA collection law (Prop. 69). According to the ACLU, California’s law would permit DNA collection for arrests on suspicion of “simple drug possession, joyriding, or intentionally bouncing a check.” An en banc panel of the Ninth Circuit is considering the case in light of Maryland v. King. If the ACLU’s characterization is correct, then California’s law may not survive intact under King’s “serious offense” limiting principle.
While the task of determining the seriousness of an offense as a triggering condition for a legal rule can be difficult–particularly in light of the patchwork of criminal laws that forms the quilt of our fifty-state, federalist system–it is not outside the province of what courts do. For instance, in Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010), the Supreme Court had to decide whether state or federal standards should apply in determining whether a person convicted of a second state drug possession offense committed an “aggravated felony” under the immigration laws, and was therefore subject to automatic deportation. (The Court ultimately held the drug possession conviction was not an aggravated felony).
Is the Fourth Amendment transsubstantive (and should it be)?
More generally, King’s “serious offense” principle raises questions about whether the Fourth Amendment is, or remains, transsubstantive. The Supreme Court has previously suggested the Fourth Amendment is transsubstantive–namely, that all other things equal, the Fourth Amendment applies the same way regardless of the severity of the underlying crime that’s being investigated. (Though I’m not familiar with the scholarship on this issue, it appears scholars agree this is the governing rule: see here and here).
Thus, in Mincey v. Arizona, 437 U.S. 385 (1978), the Supreme Court held that “the seriousness of the offense under investigation”–in that case, a homicide–does not, without more, create an exigent circumstance justifying a warrantless search. And the Court in Atwater v. City of Lago Vista, 532 U.S. 318 (2001), affirmed similar principles on the other end of the spectrum: “If an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment, arrest the offender.” The Atwater majority rejected the notion that the severity of the underlying offense being investigated (in Atwater, driving without a seatbelt) is a valid consideration in applying the Fourth Amendment’s reasonableness requirement to determine the government’s seizure authority. (See Atwater at 348; Whren v. United States, 517 U.S. 806 (1996)).
Does Maryland v. King change this? If King‘s holding is limited to suspicionless searches of individuals arrested for “serious offenses,” then King suggests that, all other things equal, the seriousness and nature of a suspect’s underlying (suspected) crime affects whether and how the Fourth Amendment applies. A similar view was recently expressed in Justice Alito’s concurrence in U.S. v. Jones, joined by three other justices, which argued the use of longer term GPS tracking for the investigation of “most offenses,” including Jones’s alleged drug trafficking, would be a search, but that persons suspected of “extraordinary offenses” (my read: terrorism) may be subject to different Fourth Amendment rules.
Put together, Jones and King suggest the nature of a suspect’s underlying (suspected) crime may be relevant to the scope of the Fourth Amendment’s limits at various stages of the government’s investigation of that suspect. To my mind, these cases suggest a move away from the transsubstantive Fourth Amendment. It will be interesting to see how the Ninth Circuit applies these principles in deciding Haskel v. Harris.
I’d love to hear whether CoOp readers think the Fourth Amendment should remain transsubstantive, or, as Professor Stuntz put it, whether the courts should “pay much more attention to the circumstances that separate some crimes, and some defendants, from others.”
