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“Opening Our Mouths for Royal Inspection”

Posted on: August 13th, 2013 by Judge Shapiro

That was the essence of justice Scalia’s originalist dissent in Maryland v. King, 133 S. Ct. __ (June 3, 2013).  In King, the Court held, in a majority opinion written by Justice Kennedy and joined by three of the conservatives plus Justice Breyer, that a cheek swab for the purpose of collecting DNA from a mere arrestee (as opposed to a convict) for a serious crime did not violate the Fourth Amendment’s prohibition on unreasonable searches and seizures.

In 2009, King was arrested on first-and second-degree assault charges. Booking personnel took an involuntary cheek swab, and King’s DNA tied him to an unsolved 2003 rape, of which he was later convicted based in large part on the DNA match. The trial judge denied the motion to suppress the cheek swab in the rape case, and the Supreme Court ultimately affirmed him. Justice Kennedy wrote that a cheek swab for the purpose of collecting DNA evidence, for an arrest supported by probable cause, is a legitimate booking procedure akin to fingerprinting and photographing.

Justice Scalia, joined by three of the Court’s four relative liberals, dissented. Because the Framers despised British use of so-called “general warrants,” Justice Scalia  “doubt[ed] that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.”

“But the Reasonableness of a Search is Only Skin Deep”

While the cheek swab in King may have been constitutional, a blood draw in Missouri v.  McNeely, 133 S. Ct. __ (April 17, 2013), was not. In her plurality opinion, with Justice Kennedy concurring in the judgment, Justice Sotomayor wrote that the mere natural dissipation of alcohol in the blood was not, by itself, an exigent enough circumstance to justify a warrantless intrusion into a putatively drunk motorist’s vein with a needle.  The Court distinguished Schmerber v. California, 384 U.S. 757 (1966), which permitted such an intrusion based on the special circumstances of that case, including the need to investigate an accident and transport an injured suspect to the hospital.

The Court did not give much bright line guidance to law enforcement in McNeely. Although the natural dissipation of alcohol could not by itself support a warrantless blood draw, the court will continue to decide on a case-by-case basis what will be enough exigency to justify police in dispensing with a warrant before having a DUI suspect’s blood drawn. Justice Kennedy’s concurrence, which is necessary to the opinion of the Court, promises a bright line test in the future when a more suitable case arises. Thus, the plurality’s totality of the circumstances analysis now may become a bright line test in the future.

“In the Doghouse”

Normally, a dog sniff is not even a search within the meaning of the Fourth Amendment. See, e.g., Illinois v. Caballes, 543 U.S. 405 (2005) (dog sniff of a car not a search); United States v. Place, 462 U.S. 696 (1983) (dog sniff of luggage at an airport not a search). But when a trained narcotics dog comes traipsing onto the curtilage of someone’s home with its handler, it is.

Florida v. Jardines, 569 U.S. ___ (March 26, 2013).

Interestingly enough, Justice Scalia’s majority opinion did not rest on the “reasonable expectation of privacy” articulated in the seminal  case of Katz v. United States, 389 U.S. 347 (1967). Rather, it rested on the property rights inherent in the Fourth Amendment. A canine handler bringing a trained narcotics dog up to the front door, where the dog can sniff out marijuana being grown inside, is beyond the customary license anyone is given to approach a home. A man’s (or woman’s) home is his (or her) castle. That home, including its curtilage, has the highest level of Fourth Amendment protection. The state of Florida violated the Fourth Amendment by searching the home with a trained narcotics dog.

Unfortunately, the Court’s Fourth Amendment jurisprudence has remained notoriously unpredictable. Justices Kennedy (not surprisingly) and Breyer (surprisingly) have emerged as the critical swing votes in most of these cases.




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