DNA, crime fighting and the Fourth Amendment

By Associate Professor Kevin Lapp

On Feb. 26, 2013, the U.S. Supreme Court heard oral argument in Maryland v. King, a case that Justice Alito called "the most important criminal procedure case this Court had had in decades." The case involves the constitutionality of warrantless, involuntarily DNA collection from individuals who have been arrested for a felony, but not yet charged or convicted. It is uncontested that DNA collection constitutes a search for purposes of the Fourth Amendment. This case asks whether compelling such searches in the absence of a warrant, and the absence of a criminal conviction, is reasonable.

Maryland, together with 27 other states and the federal government, has statutorily mandated law enforcement to collect a DNA sample from certain individuals upon arrest. The DNA extraction happens not because the state has any articulated suspicion whatsoever that the search will produce evidence of criminality. Were that so, the state could get a warrant to compel a DNA sample. Instead, the law requires arrestees to submit to DNA collection (typically by a buccal swab) based merely on the fact of the arrest. It is done so that law enforcement can analyze the DNA sample and compare it to the thousands of DNA profiles already in state and federal databases, in the hopes that the arrestee's DNA will match as-yet unidentified DNA evidence related to unsolved crimes.

Such "suspicionless" searches are generally unreasonable. Indeed, they are precisely the kinds of searches that the Fourth Amendment was intended to stamp out when the Founding Fathers made it part of the Bill of Rights. But the lure of an effective crime-fighting technology has proved irresistible to many courts asked to rule on the constitutionality of compelled, warrantless DNA collection from individuals upon arrest.

A new era for exigent circumstances

By Professor Marcy Strauss

This is the first in the Summary Judgments summer series, "The Headline Club," in which Loyola Law School professors will discuss legal issues ripped from the front page.

The Supreme Court's 8-1 decision in Kentucky v. King has been described by some bloggers, pundits and scholars as being a serious blow to the Fourth Amendment and its protection of the privacy of the home, and by others as a narrow, fairly insignificant decision. The truth, as it often does, may lie somewhere in between predictions of doom and irrelevancy.

The issue in King was one that the lower courts had grappled with: does the "exigency exception" to the warrant requirement apply when the police "create their own exigency?" (and what does it mean to create the exigency?). In King, police officers pursued a suspected drug dealer into an apartment complex, briefly lost sight of him, but detected the very strong odor of burnt marijuana coming from behind one of the doors. At this point, the officers had several options. Instead of pursuing one option -- staking out the apartment and going for a warrant -- the officers banged on the door and announced their presence. Hearing "people moving and things being moved" led the officers to believe that drug-related evidence was about to be destroyed, and thus, the police made a warrantless entry into the home. As a result of that entry, they didn't find the man they were looking for originally (he had, in fact, gone in a different apartment), but did find marijuana and cocaine.

The lower state courts had found that exigent circumstances justified the warrantless entry. Traditionally, police officers cannot enter a home without a warrant, no matter how strong the belief that evidence or contraband was contained within the home, subject to a few narrow exceptions. One exception is exigent circumstances. On a very basic level, the exigent circumstance exception to the warrant requirement makes perfect sense: If there is no time to get a warrant, it should not be required that the police obtain one. The simple example I give my students is this: If a police officer is walking the beat, and hears gunshots fired from an apartment, surely we want that officer to rush into the apartment rather than head for the precinct to procure a warrant. But once you get beyond an example like this, tough questions abound. One of the most widely litigated issues among the lower state and federal courts was whether the exigency exception applies when the police "created their own exigency." For example, it was argued here, and the Kentucky Supreme Court agreed, that the police cannot deliberately create exigent circumstance with the bad-faith intent to avoid the warrant requirement, and moreover, even without bad faith, the police cannot rely on exigent circumstances if it was reasonably foreseeable that the investigative tactics employed by the police would create the exigent circumstances. Applying that standard, the Kentucky Supreme Court held that although there was no bad faith here, it was reasonably foreseeable that the occupants would attempt to destroy evidence when the police officers chose to knock on the door and announce their presence. Hence, the police created their own exigency and the warrantless entry was, therefore, unconstitutional.