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Wednesday, June 05, 2013

(When) Was Fingerprinting Unconstitutional?

One of my main items of business during this blogging stint is to write about this month's Supreme Court cases as the term wraps up.  So the first order of business is Monday's cases.  I fear I don't have anything interesting to say about Hillman v. Maretta, the group life insurance case that a friend described as "the most preempted law ever."  And while a lot of people have written things about Maryland v. King, I thought I'd throw in my own thoughts.

I'm more sympathetic to the dissent's reasoning than I expected to be.  When I first saw the case granted, I confidently predicted a reversal and I wasn't even sure there would be a dissent.   But I do now see why the dissent thinks this is a questionable extension of the special needs doctrine.  It's common ground that the police can't just go search your house or your off-site car or your gym locker without suspicion when you've been arrested, so it needs a story about why DNA is different.  And the claim that the DNA searches are largely for identification purposes rather than crime-solving purposes seems implausible.

That said, I don't think Justice Scalia does a good job of distinguishing DNA from fingerprints.  As I read it, the dissent actually trots out three different arguments about why its view doesn't forbid the routine fingerprinting of those who are arrested.

  1. Fingerprinting is not a search. ("The Court does not actually say whether it believes that taking a person’s fingerprints is a Fourth Amendment search, and our cases provide no ready answer to that question.")  Possible, but Justice Scalia seems unwilling to actually commit to this argument, he just mentions it and moves on.

  2. Fingerprinting really is for identification purposes. ("Fingerprints of arrestees are taken primarily to identify them (though that process sometimes solves crimes); the DNA of arrestees is taken to solve crimes (and nothing else).")  Possible, but this argument relies heavily on computer databases that were only created in the late 1990s, and fingerprinting has been around for a lot longer than that.

  3. Fingerprinting was unconstitutional for a long time (and maybe still is?). ("The 'great expansion in fingerprinting came before the modern era of Fourth Amendment jurisprudence,' and so we were never asked to decidethe legitimacy of the practice ... but it is wrong to suggest that this was uncontroversial at the time, or that this Court blessed universal fingerprinting for 'generations' before it was possible to use it effectively for identification.") Justice Scalia's views about the IAFIS database would seem to imply that routine fingerprinting was unconstitutional until it became part of an identification system.  But he is oddly non-commital.  The Court didn't "bless" it, and it was not "uncontroversial," but was it actually wrong?

As best I can tell, the dissent's view is a combination of 2 and 3, with 1 mentioned but not seriously contended.  If so, that's somewhat surprising.  At the oral argument in Hollingsworth v. Perry, Justice Scalia pestered Ted Olson with the question:  "When did it become unconstitutional to exclude homosexual couples from marriage?" and seemed incredulous that the constitutional answer could have changed more recently than the enactment of the 14th Amendment.  It seems fair to ask him the same question about the constitutionality of fingerprinting.

[CORRECTION:  I originally mistyped "affirmance" instead of "reversal" above.]

Posted by Will Baude on June 5, 2013 at 12:15 PM in Constitutional thoughts, Criminal Law | Permalink


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I don't agree with you about what Jones was "ultimately about." The "Opinion of the Court" turned on the trespass of the transponder, not the "computational search." What you're describing is the reasoning of the concurring opinion. (Justice Sotomayor wrote separately to note that she agreed with the concurring opinion, but she decided to make Justice Scalia's the opinion of the court and in her separate opinion she reaffirms that the trespass test "suffices to decide this case.")

In any event, I think there's good reason to believe that Justice Thomas would think that the swab is a search, and that he wouldn't join an opinion saying that it wasn't.

Posted by: William Baude | Jun 9, 2013 1:13:35 AM

That's interesting about Jones and Jardines, but Jones was ultimately about--for lack of better terminology--the "computational search" of knowing a suspect's every movement, rather than the invasiveness of sticking the transponder on his car. And, while I agree that it would be hard to reconcile the notion that a drug sniffing dog at your front door is a search (Jardines) while swabbing your mouth somehow, is not, it's at least possible given the different loci: the home vs. county jail booking.

Again--this is not to say I think these are good arguments. They're not. But they at least appear to me to be better crappy ones, if the ultimate thing the Court is concerned about is a relatively fail-safe method of catching actual criminals.

Posted by: Jake Sherkow | Jun 8, 2013 8:16:08 PM

I'd speculate that declaring a bucal swab not to be a search is 1, inconsistent with Justice Thomas's views about physical intrusions, as reflected in Jones and Jardines, and 2, would give the Court less excuse to supervise the details of the process, such as by constitutionalizing some of the statutory limits on how the data is used.

As for whether fingerprints are a search or seizure, if forcing somebody to put his finger on the inkpad is a seizure, wouldn't it also be a seizure to force him to stand still for the Bertillon measurements or for a mug shot?

Posted by: William Baude | Jun 6, 2013 3:34:47 PM

Scalia's dissent is interesting--and possibly correct--but the route the majority chose to "constitutionalize" buccal swabs is pretty fascinating. It indeed "taxes the credulity of the credulous" to assess warrantless pre-conviction swabbing under an identification theory. But why chose *that* route? Why not just say it wasn't a "search"? A crappy argument, to be sure, but at least more grounded in factual if not legal reality than declaring probable-cause-less swabs to be for identification purposes.

I wonder if this is simply a case where the overwhelming public policy considerations--identifying people who are absolutely, factually guilty of heinous crimes--put the Court in a bind to chose one of two miserable Fourth Amendment interpretations. I'd be curious, for those with more SCOTUS knowledge than I, to know whether they think this is what happened behind the scenes.

Posted by: Jake Sherkow | Jun 6, 2013 11:18:09 AM

Scalia should have gone with #1, I think. Perhaps the harder problem is that fingerprinting will normally require a seizure -- controlling the person to get the prints -- which then raises the question of whether taking a cheek swab is a seizure, too. It gets complicated quickly, and the issue wasn't briefed, which may be why he didn't say much about the question.

Posted by: Orin Kerr | Jun 5, 2013 8:55:46 PM

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