Sooo … Akhil Reed Amar and Neal Katyal confuse the IRS and TSA with the FBI. I mean … really, profs??
Update: Link at Scotus blog http://www.scotusblog.com/2013/06/wednesday-round-up-187/.
As prosecutors, police agencies and civil libertarians consider the ruling’s implications, Justice Scalia’s stark dissent — and the fact that President Obama’s two appointees to the court so far agreed with it — makes it worthy of scrutiny, even if he was on the losing side. His argument is deeply flawed, because he did not get his history quite right.
Justice Scalia summarized his scathing dissent from the bench — a rare act that signals sharp disagreement. His opinion opened with these lines: “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.”
But the Fourth Amendment’s text is not nearly so simple as he makes it out to be. It merely requires that all searches and seizures be not “unreasonable.” Its words do not distinguish between intrusions seeking “evidence of crime” and other sorts of intrusions — say, to collect revenue, or preserve public safety.
— Why the Court Was Right to Allow Cheek Swabs, Akhil Reed Amar and Neal K. Katyal, New York Times,* today
Oh, dear. Looks like we should all take the Fifth instead of filing income tax returns. Now that we can no longer take the Fourth.
The referenced ruling, whose implications prosecutors, police agencies and civil libertarians are considering, is yesterday’s 5-4 Supreme Court opinion in a case called Maryland v. King. Lyle Denniston of SCOTUSblog explains:
Treating the solution of unsolved crimes as a legitimate part of routine police station “booking” procedures, a divided Supreme Court on Monday upheld the power of government at all levels to take DNA samples from every person legally arrested for a “serious” new crime. What a suspect may have done in the past, the Court majority ruled, is a part of the profile that police may constitutionally begin to assemble at the time of arrest for a separate offense.
Justice Anthony M. Kennedy, writing for a five-four majority, insisted that the ruling in the case of Maryland v. King (docket 12-207) involved little more than what happens when police take a suspect’s fingerprints or mug shot. But Justice Antonin Scalia, writing for the dissenters, said the Court had validated the use of scientific evidence taken without a warrant not to make an identification but to gather evidence to solve cold cases — something he said the Court has never allowed before.
Whether or not Scalia got his history right, at least he, unlike these these two eminent law professors, recognizes that, as a matter of both fact and the Fourth Amendment, solving an already-committed crime is not the same as requiring the filing of tax returns or thwarting an attempt to carry out a crime. Or, well, at least until yesterday there was a difference as a matter of both fact and the Fourth Amendment. Now I guess there’s only a factual difference, not a legal one.
But these two writers think there’s no factual difference. Or maybe they just think Scalia thinks there’s no factual difference. Or maybe they just didn’t notice the words “for evidence of a crime” in that sentence they quote from Scalia’s dissent: “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.”
Hard to tell. And rather than clear up that mystery, they just go on to enhance their weird conflation of past and present, and of crime and regulatory compliance:
Justice Scalia failed to identify even one source from the founders articulating the ultraprecise rule that he claims is the central meaning of the Fourth Amendment. And his version of the Fourth Amendment would lead to absurd results.
The government, for example, permits searches at the border to prevent contaminated livestock and plants from entering the country — is such authority permitted only because these searches are not seeking “evidence of crime?” If so, if what happens if the government at some point criminalizes the intentional introduction of diseased animals and vegetables? Why should these searches magically now become unconstitutional?
The title of Denniston’s piece is “Opinion recap: Solving ‘cold cases’ made easier.” Maybe that refers to handling of refrigerated containers of meat and produce by the Border Patrol and the Agriculture Department.
What exactly is the ultraprecise rule that Scalia claims is the central meaning of the Fourth Amendment? That livestock and plants trying to enter the country should be forced to submit to a DNA swab in case they plan to violate the tax code when they file their tax returns with the IRS? That certainly is ultraprecise. Not to mention deeply flawed and historically inaccurate. As is the claim that a statement that 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 has anything to do with mandatory filing of tax returns, or airport security, or livestock and plants crossing the border. It’s also very much worth having a look at pages like https://www.newjerseycriminallawattorney.com/white-collar-crime/computer-crimes-attorney/, as they are very useful for cases like this.
My own reaction to the opinion was more along the lines of revulsion than relief that the country’s food supply will continue to be relatively safe from foreign contamination; that I won’t be planting poison tomato seeds imported from Timbuktu; and that Mitt Romney and the Koch brothers won’t have new Fourth Amendment grounds for tax avoidance. And judging from similar sentiment expressed overwhelmingly in comments threads I’ve read about it, I think this opinion will prove to be the Fourth-Amendment/criminal-law Citizens United–a watershed moment of awareness of the chasm between the Supreme Court justices who think it’s forever the days of the Reagan presidency and the substantial majority of the public who think it’s 2013.
Yes, the Fourth Amendment’s text merely requires that all searches and seizures be not “unreasonable.” Which itself is a distinction between intrusions seeking “evidence of crime” and other sorts of intrusions — say, to collect revenue, or preserve public safety. Or so I and others, including Scalia, Ginsburg, Sotomayor and Kagan, had thought.
Then again, Amar and Katyal must know what they’re talking about. They’re eminent law profs, after all, who by virtue of their eminence get anything they submit published anywhere they submit it.
Anything they submit. Even this.
===
*“Akhil Reed Amar is a professor of law and political science at Yale. Neal K. Katyal is a former acting solicitor general of the United States, a professor of national security law at Georgetown and a partner at the law firm Hogan Lovells.”
The Fourth Amendment does permit warrantless searches for evidence of crime, where the state’s interest in the search is high and the intrusion on privacy is relatively minimal. For example: DUI and drivers licence checkpoints, border stops (e.g., drug sniffing dogs), airport secutiry scans, and collecting DNA samples from convicted offenders (as opposed to arrestees) for criminal identification purposes. The Fourth Amendment also permits warrantless searches informed by some suspicion but not full probable cause. E.g., “Terry” pat-searches. So there is no categorical division in the Fourth Amendment between searches “for evidence of crime” and searches conducted for other reasons.
Their whole article is confused, as is the majority’s opinion. Not once did either address what Scalia rightly did (I cannot believe I am about to whole heartedly agree with AC); the argument to allow the swab is incoherent with the facts of the case. Simply put, the argument for the swabs is that it is a common booking practice like finger printing and photographing for identification purposes. However, as Scalia lays out, the identity of King was known at the time of his booking, and King was already into the discovery process of his trial by the time authorities received notice of identity from the DNA sample.
Moreover, I cannot believe how casual Kennedy is about retrieving a DNA sample–“In light of the context of a valid arrest supported by probably cause respondent’s expectations of privacy were no offended by the minor intrusion of a brief swab of his cheeks.”
So by that logic, we predicate intrusion and invasion of privacy on the means to gather information. Since when do we read the Constitution allow for that hair splitting? This is what the Court wrote not too long ago in Kyllo:
“. . .
The Government also contends that the thermal imaging was constitutional because it did not “detect private activities occurring in private areas,” Brief for United States 22. It points out that in Dow Chemical we observed that the enhanced aerial photography did not reveal any “intimate details.” 476 U. S., at 238. Dow Chemical, however, involved enhanced aerial photography of an industrial complex, which does not share the Fourth Amendment sanctity of the home. The Fourth Amendment’s protection of the home has never been tied to measurement of the quality or quantity of information obtained. In Silverman, for example, we made clear that any physical invasion of the structure of the home, “by even a fraction of an inch,” was too much, 365 U. S., at 512, and there is certainly no exception to the warrant requirement for the officer who barely cracks open the front door and sees nothing but the nonintimate rug on the vestibule floor. In the home, our cases show, all details are intimate details, because the entire area is held safe from prying government eyes.”
Suddenly a DNA analysis of a person is less than a fraction of an inch of door. Police State . . . . I welcome you with open arms.
Mike, what makes the “Terry-stop” pat-downs, the airport security scans, the border-patrol drug-sniffing dogs, and the DUI and driver’s license checkpoints, reasonable–i.e., not an unreasonable search, to use the Fourth Amendment’s language–is that their purpose is to PREVENT imminent harm (an airplane hijacking; a drunk-driving traffic accident) or other violation of the law (illegal drugs being brought into the country). It is not to solve an already-committed crime that is under investigation. That’s Scalia’s point.
Barry Friedman makes a sort of similar point on Slate today, distinguishing what he calls regulatory searches from investigative searches, at http://www.slate.com/articles/news_and_politics/jurisprudence/2013/06/dna_collection_in_maryland_v_king_the_supreme_court_fails_on_the_fourth.html. I disagree with some of what he says but not with his main point, which is pretty much the same point that I argued here: The issue is reasonableness, and attempting to prevent imminent harm by suspicionless searches is reasonable under some circumstances, whereas suspicionless searches for the purpose of cold-crime-solving is not.
Yeah, that sentence of Kennedy’s that you quote, jurisdebtor, is just stupifying. If he really believes that the intrusion is requiring the arrestee to open his mouth and be touched by a swab, rather than what information the swab touch will reveal, he’s stunningly stupid. There’s a real creepiness to the casualness with which Kennedy lies in that opinion–both about the nature of the intrusiveness and, as Scalia says outright, about the purpose of the DNA-gathering.
Should say: “If he really believes that the intrusion is in requiring the arrestee to open his mouth …”
Beverly et al
I lose heart here. As long as “we” are permitting casual intrusions of personal privacy, the fourth amendment becomes just a “paper law”.
i don’t think we will ever recover the kind of sanctity of the person, sanctity of the home, respect for the privacy of people over the “needs” of the government that may once have had, or thought we had.
don’t be too surprised when “privacy” no longer protects you from “intimate” searches … and roe v wade is reversed on the grounds that there never was a privacy guarantee in the constitution.
it’s them terrorists, you see. and of course the overwhelming need of the state to get a conviction.
Both these ivy league elitist professors probable come from countries where human rights abuses are as common as eating breakfast. The elite want a creeping totalitarianism, as to these two professors. The rest of us find the idea abhorrent. And yes, any intellectual tripe from an Ivy League professor gets first in line for media exposure.