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Junk DNA, Junk Cars, and the Fourth Amendment

In 1982, Officer Joe Vega and colleagues entered the Brooklyn junkyard of Joe Burger, without a warrant or any individualized basis of suspicion, and started writing down VINs.  Surprise, surprise, some of the cars were hot, and Junkyard Joe went directly to jail.

Why were Officer Vega et al. poking around junkyards, with their notoriously mean dogs?  Not for fun.  They were looking for evidence of a crime, fencing stolen property.

New York had an administrative scheme for junkyards, but the sole purpose of the scheme was to deter and detect fencing hot cars.  Cops did the inspections, and the record that junk dealers were required to keep was even called the "police book."  The New York Court of Appeals thought that searches conducted without warrants or individualized suspicion under this statute were unconstitutional.  The US Supreme Court granted certiorari in New York v. Burger to decide "whether an otherwise proper administrative inspection is unconstitutional because the ultimate purpose of the regulatory statute pursuant to which the search is done -- the deterrence of criminal behavior -- is the same as that of penal laws...."  Six justices, including Justice Scalia, were cool with it.

Today, Justice Scalia begins his dissent in Maryland v. King thusly (emphasis added):

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.
Nope.  Not correct.
In Burger, the New York court and the Supreme Court dissenters were undeniably correct that the motive of the administrative scheme was simply to facilitate searches.  The majority said the state has a "substantial interest" in making sure that junkyards are legitimate businesses and not fencing operations.  Sure.  And doesn't the state have a "substantial interest" in locking up rapists such as Alonzo King so they can't rape any more women?  More than "substantial," IMHO.

The majority also noted that the administrative scheme provided notice as to its requirements and constraints on the inspecting officers' discretion.  So does the Maryland DNA statute.

The Burger majority says that junk dealers have a reduced expectation of privacy. To support the thesis that junkyards are a "closely regulated" business with such a reduced expectation, the majority notes that junk dealers have to register, pay a fee, and keep records.  That amounts to "closely regulated"?  That sounds like normal business regulation to me.  I have been general counsel for an alcoholic beverage company, and I know "closely regulated" when I see it.  This isn't it.

Even so, accepting Burger on its terms, the holding is that a person in a position warranting a diminished expectation of privacy can be required to submit to searches without warrants or individualized suspicion when the sole motive for the system is to deter and detect a crime.  How is that different from the DNA case?

A person who has been arrested for a crime of violence and booked into jail certainly has a much lower expectation of privacy than a person engaging in a legitimate business.  Jailers can do strip searches and body cavity searches of the prisoners, and that's about as low an expectation of privacy as you can get.

The only distinction available here would be a strained theory of consent.  Joe Burger chose to go into the junk business.  Alonzo King did not choose to be arrested.  He did choose to menace people with a shotgun, though, or at least there was probable cause to believe he did.  Does the Fourth Amendment permit the government to require people to submit to searches as a condition of engaging in a legitimate business but forbid a less intrusive search as a consequence of committing a violent crime?

There is a strange current running through Justice Scalia's dissent and, to some extent, through the whole administrative search line of cases.  That is the notion that equally intrusive searches are somehow more suspect if they are done for the purpose of enforcing the criminal law than for other purposes.  I think this notion is fundamentally mistaken.

The Fourth Amendment is not the Self-Incrimination Clause.  Its purpose is to protect people from searches, not prosecution.  The intrusiveness of a search does not depend to any degree on the motive behind it.  Security in people's "persons, houses, papers, and effects" is violated by the search itself and not by any subsequent evidentiary use of what is found.  If a government agent rummages through your private correspondence (whether "papers" or email), it should make no difference whether he is seeking to enforce a law against rape or a law against selling gasoline for too high a price.

The King majority's claim that this law has purposes other than investigation of other crimes is indeed thin, as the dissent charges.  No such claim should be necessary.  Getting rapists off the street and into prison where they belong is not a suspect enterprise, and it should not be subject to greater restriction than enforcing the myriad of noncriminal laws.

The answer to the puzzle lies not in pretense of ulterior motives but in the recognition that the "touchstone of the Fourth Amendment is reasonableness, not individualized suspicion."  The intrusiveness of the search in question here is very minimal.  The sampling process is trivial, and its intrusiveness in relation to the other aspects of being arrested is microscopic.  The analysis of the sample is limited to so-called "junk DNA," providing no information beyond identity.  It invades no privacy interest other than the privacy of getting away with a crime.

Reasonableness of searches depends not only on individualized suspicion but also on the degree of intrusiveness, expectation of privacy, and need.  It is time to drop the idea that searches for investigation of crime are subject to a different standard than searches to enforce other laws.  A search is a search.


There are not many who could outthink both Justice Scalia and the Court's majority, but Kent is one of them.

"The Fourth Amendment ... is to protect people from searches, not prosecution."

Very instructive.


I agree, Bill.

When it it comes to constitutional issues involving the criminal justice system, IMHO Kent is in a very small class of highly analytical scholars who can quickly digest complex legal concepts and reduce them to readily understandable principles in plain English. I would also put Deputy SG Michael Dreeben in that elite category.

It would have been nice if Justice Kennedy could have stated in clear language that (1) the government's sole justification for DNA swabbing of all arrestees was unambiguously to help solve cold cases and, in turn, to bring offenders to justice and prevent future crimes; (2) the intrusiveness of the procedure was insignificant, especially given arrestees significantly reduced expectation of privacy; and (3) the DNA swabbing and testing was, thus, a reasonable search.

Instead, Kennedy and Scalia get into a battle over the meaning of the term "identification." And how broadly (Kennedy) or narrowly (Saclia) it should be interpreted, i.e., does using DNA swabs to "identify" arrestees include only their name, or does it include ascertaining who it is that law enforcement is dealing with in terms of their full criminal background -- that which is already known through their RAP sheet and that which is lying hidden in cold case forensic evidence.

Kennedy gets the right result. But he gets there in such a wishy-washy way that his arguments and flowery language are subject to being torn apart by Scalia.

My question (to Kent & Bill): Reading Kennedy's opinion in King in light of his concurrence in McNeely, where does he stand on Fourth Amendment search jurisprudence:

Does he adhere to (1) reasonableness balancing in all/some search cases, or is he (2) still willing to apply the principle that all warrantless searches are pre se unreasonable absent a recognized exception? He uses the former doctrine in King but signs on to the later in McNeely.

If he is willing to use both (1) and (2), what is the distinguishing factor(s) that govern his selection? The degree of intrusiveness; the level of expectation of privacy of the person subjected to the search; and/or the need (i.e., government's justification for the search)?

I am convinced that the trepidation about dna swabs of arrestees isn't about instrusiveness (it isn't) or the relative importance of solving crimes. It is the fear that the government is using the DNA for other purposes and whether they only really collect the "junk". Personally, given the shennigans recently at the IRS, I can't say those doubts are unfounded - but that is another issue for another day.

And for what it is worth, when I am deployed to the Balkans back in 2001, my DNA was sampled in the event my corpse or something portion of it was unindentifiable. I wonder if my DNA made it into CODIS? Does anyone know?

This is a fascinating post and thread. I am not sure that Scalia is wrong on this:

"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."

Obviously, Scalia cannot be talking about the motives in individual cases for the reasons well-described in Kent's post. What I think he's talking about (and the context of the dissent seems clear enough) is are classes of searches that are ok or not ok. Clearly, the state can do suspicionless and warrantless searches all day long so long as the class of search is one allowed either as an exception to the warrant requirement or simply not covered by Fourth Amendment in the first place. Once it has been established that the class of search is ok, then anything found in the course of such a search is fair game (this is why, btw, Gorelick's wall was so ridiculous). (I think it was Buie where the concept of an officer being lawfully present being able to take what's contraband or where the incriminating character is apparent.) I think the idea of an administrative search can go too far. Just because a junkyard can be searched, does it follow that the police could dig up the owner's yard looking for the owner's missing wife.

I also think that Burger can be distinguished in other ways. Obviously, the state is looking to detect third party criminal behavior and the criminal behavior of employees, i.e., those without a privacy interest to be protected vis-a-vis the junkyard.

Obviously, in the context of arrestees there is a diminished expectation of privacy. But does that mean anything goes? I am not so sure--and I don't think the issue is the swab itself, but rather the fact that it is untethered to what is necessary to make ensure the orderly administration of a jail.

I haven't formed an opinion about where I come out. A lot of food for thought. Hopefully, I've contributed more than Nutraloaf to the buffet.


If my memory serves me correctly, I believe that I read in one of the amicus briefs filed in King that the DNA samples that were (and are) compelled from military personnel such as yourself could not be included in CODIS or could never be compared to the CODIS database. I believe the amicus brief discussing this issue was filed by a veterans group in support of King. If you are interested, go to www.scotusblog.com or the American Bar Association web site to pull up the amicus brief that I am referring to.

Good luck. And thank you for your military service!

Ah, progress. In my day they took my footprints, on the theory that feet in boots were the parts most likely to survive a crash and burn. Lovely thought.

All who are interested, read Yale Prof. Amar's NYT's op-ed published June 3. He literally destroys Scalia's claim that the Founders would have been abhorred by the government's taking and analyzing DNA from in-custody, "serious"-crime arrestees. And, like Kent, he does it with very few words.

Ok, so this leads to another question:

What is the criteria to be added to CODIS? Is this a constitutional issue as well?

I didn't know leather personnel carriers had a sufficiently distinctive footprint to help identify.

federalist touches on an important point. Simplicity has its virtues but maybe it isn't telling the whole story.

The 4th Amendment provides that warrants shall "particularly describ[e] the place to be searched, and the persons or things to be seized."

Maybe we don't need to care why that limitation on warrants is in place; we follow it because it's in the Constitution.

federalist suggests a similar limitation in the absence of warrants: that the police presumably couldn't dig up the yard looking for the owner's wife. Kent accepts the stutory limitations in apparently the same vein.

But why not simply pass a law permitting digging at a junkyard? As Kent suggests, the VIN law really is about criminal investigation after all.

Read Scalia's words again:
"Whenever this Court has allowed a suspicionless search, it has insisted upon a justifying motive apart from the investigation of crime."

Kent says "Nope. Not correct."

Except, that's not true, Kent! In Burger, there was a justification of business regulation. We may view is as flimsy as the identification excuse in King, but there was a justifying motive apart from the investigation of crime.

Maybe the Court gives excessive deference to the flimsy rationales being offered by the government.

I agree with Kent that a search is a search. But the justification matters immensely. The justification defines the permissable scope. That is a level of reasonableness not captured by subjective notions of expectations of privacy and substantial interest. And it is an element that pervades 4th Amendment jurisprudence.

As federalist rightly observes, the DNA test was "untethered to what is necessary to make ensure the orderly administration of a jail."

In my view (and the view of the Burger dissent and the New York Court of Appeals, FWIW), the sole justification for the business regulation was the deterrence and detection of a crime.

Business regulation is not, or at least should not be, a justification for suspending the Fourth Amendment any more than branding speech as "commercial" should strip it of First Amendment protection.

It all comes back to whether a search is "reasonable." That is vague, and Justice Scalia prefers bright line rules, but the Fourth Amendment is vague on its face. The Court abandoned bright-line rules for an "all the circumstances" approach to probable cause in Illinois v. Gates after experience with the rules proved them inadequate.

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