A Visual Guide to Maryland v. King
by Colin Starger
During last month’s oral argument in Maryland v. King, Justice Alito announced that he regarded King as “perhaps the most important criminal procedure case that this Court has heard in decades.” Justice Alito’s extraordinary statement derives from the recognition that King could determine the relevance of the Fourth Amendment for the next generation. By mapping the underlying doctrinal debate in King, this Visual Guide reveals the critical Fourth Amendment choices facing the Court and illustrates the case’s potential to shape the meaning of privacy for the new age of surveillance.
The issue in King is the constitutionality of provisions in Maryland’s DNA Collection Act that permit the State to collect DNA from those arrested for, but not convicted of, certain serious crimes. Respondent Alonzo King was arrested for assault and authorities collected his DNA collected pursuant to the law. When King’s DNA profile was entered into the “unsolved crimes” DNA database, his profile returned a “cold hit” to a prior unsolved rape. Based on this database hit, King was charged with and then convicted of this rape. On appeal from the rape conviction, King persuaded Maryland’s highest court that expansion of the DNA Collection Act to include arrestees violated the Fourth Amendment. After the Court of Appeals reversed King’s conviction, the State of Maryland successfully petitioned the Supreme Court for a writ of certiorari. The Court has since heard argument and its King decision is pending.
The debate now before the Court plays out doctrinally as a competition between different lines of opinions interpreting reasonableness under the Fourth Amendment and the scope of the amendment’s warrant requirement. This Visual Guide graphically illustrates these competing lines of opinions with three different “doctrinal maps.” Map 1 represents the main lines of Court opinions supporting Petitioner Maryland’s argument that collecting and analyzing arrestee’s DNA is reasonable under the Fourth Amendment. Map 2 represents the Court precedents supporting Respondent King’s counter argument that Maryland’s DNA law violates the Fourth Amendment. Finally, Map 3 merges the first two maps and thereby represents the full complexity of the Fourth Amendment choice facing the Court.
Please note: the maps are not the territory. This Guide does not purport to represent every Fourth Amendment case implicated by the King debate. Rather, it highlights the most representative and influential opinions that define the basic contours of the essential doctrinal dispute. Instead of comprehensive survey, this Guide is a concise and practical reference. In addition, by representing King as the latest clash in a longstanding argument over the meaning and command of the Fourth Amendment, the Guide offers a dialectical perspective on Supreme Court constitutional adjudication. In any long contested doctrine, the key to understanding contemporary debates lies in identifying the competing schools of interpretation and charting their genealogies.
Map 1 represents Petitioner Maryland’s argument to uphold DNA collection and analysis from arrestees as relying on two basic lines of opinions.
The primary line originates with Terry and most recently involves Samson and Hiibel. In all of the cases in this line, a warrantless search was deemed reasonable by a Court majority. Terry, of course, is the seminal 1968 opinion that permitted warrantless searches of the street on reasonable suspicion of criminal behavior. Since the search of King’s DNA was not predicated on individualized suspicion that he had committed other crimes, the Samson, Veronia School and Von Raab opinions are particularly important to Maryland’s argument. In those cases, there was no individualized suspicion on the part of investigating authorities. Samson involved a search of a parolee on the street. Veronia School and Von Raab both concerned random drug testing – of student athletes and customs service employees respectively.
The Hiibel case also plays a strong role in Maryland’s argument. In Hiibel, a five Justice majority upheld Nevada’s law that required suspects detained during a Terry stop to identify themselves to police. Maryland uses this Terry-line case to suggest that arrestees have no right to anonymity – and suggest that past criminal actions are part and parcel of identity. The final Terry-line cases buttressing Maryland’s argument are Knights, Houghton and Brignoni-Ponce. The cases all approved warrantless searches on reasonable suspicion less than probable cause. In Knights the search was of a probationer’s apartment. In Houghton, it was of car passengers’ belongings. In Brignoni-Ponce, the searches were random border stops.
The second Fourth Amendment line relied upon by Maryland is the search-incident-to-arrest doctrine. Maryland cites to Justice Powell’s concurring opinion in Robinson to support its argument that arrestees have radically diminished privacy interests. Here Maryland is implicitly aligning itself with the constitutional tradition that embraced a very strong presumption of reasonableness for searches incident to arrest. This tradition is represented by Justice White is his dissenting opinion in Chimel, and goes back to the majority tradition represented in cases like Rabinowitz, Harris, and Marron. In Chimel, White protested the overruling of Rabinowitz and Harris, which had approved broad searches of arrestee apartment and offices after arrest. White viewed as reasonable the broad search of Chimel’s entire apartment after his arrest for burglary.
The strong view of the search-incident-to-arrest power embraced by Justice White in Chimel ultimately traces back to the 1927 Marron decision. In this prohibition-era case, the Court unanimously approved of the seizure of an incriminating ledger in a speakeasy even though the ledger was not named in the agents’ search warrant. The Court approved the search as one legitimately made incident to arrest. This was the first explicit recognition of this power in a holding and Marron initiated a period of instability and confusion in the Court’s search doctrine. This period is explored more in Map 2 below.
Map 2 represents Respondent’s argument that the suspicionless collection and analysis of King’s DNA violated the Fourth Amendment. As this map shows, Respondent also relies on two basic lines of opinions to support his argument. Unsurprisingly, the opinions in these two lines are in direct tension with the opinions in Map 1.
King thus cites the Court’s 2009 decision in Gant to answer Maryland’s cite to Powell’s concurrence in Robinson. The Gant court found the search of an arrestee’s car unreasonable when the arrestee had been handcuffed and locked in the back of a police car. The majority’s weak conception of the police’s search-incident-to-arrest power originated from Chimel, which in turn relied upon the highly influential dissenting opinions of Justice Frankfurter in Rabinowitz and Harris. Justice Frankfurter’s dissents emphasized the centrality of warrants and need to enforce robust limits on searches after arrest. Beyond his own considerable authority, Frankfurter grounded his Fourth Amendment vision in 1932’s Lefkowitz and Justice Brandeis’s classic dissent in Olmstead. Collectively, these opinions provide support for Respondent’s contention that the mere fact of arrest does not authorize open-ended searches for additional evidence of criminality.
The second line relied upon by King calls the Court’s attention to a different strand of post-Terry opinions. Rather than Samson or Hiibel, King points to cases like Ferguson and Edmond. These cases generally support the proposition that warrantless searches are per se unreasonable under the Fourth Amendment and that a general interest in solving crime does not constitute a “special need” exception to the warrant requirement. In Ferguson, the Court struck down a South Carolina hospital’s warrantless drug testing regime that forwarded the positive drug tests of pregnant women to police for prosecution. In Edmond, the Court invalidated suspicionless searches by drug-sniffing dogs at drug interdiction checkpoints. These cases themselves cite back to Prouse where the Court held that some degree of individualized suspicion of wrongdoing is required before police can stop a motorist and check his or her driver’s license and registration.
While relying primarily on majority opinions from Ferguson to Prouse, King also mounts a provocative challenge to Maryland’s proposed authority by twice citing to Justice O’Connor’s dissenting opinion in Veronia School. O’Connor’s protest at random drug testing of student athletes characterized the practice as the kind of mass suspicionless search prohibited by the Fourth Amendment. Interestingly, O’Connor’s dissent in turn cited Justice Scalia’s dissent in Von Raab in which Scalia had observed that, outside the prison context, intrusive body searches without individualized suspicion were generally suspect. For his view of the Fourth Amendment’s inherent role as an obstacle to law enforcement, Scalia in Von Raab quoted Justice Brandeis’ famous observation from Olmstead: “Experience should teach us to be most on our guard to protect liberty when the Government's purposes are beneficent. Men born to freedom are naturally alert to repel invasion of their liberty by evil-minded rulers. The greatest dangers to liberty lurk in insidious encroachment by men of zeal, well-meaning but without understanding.”
Map 3 represents Petitioner’s and Respondent’s arguments side by side. As the dense network of overlapping and conflicting lines suggests, the Court faces a complex choice in King. Both sides to the argument have potential paths to victory – but neither side can claim the clear weight of authority. Analysis of this final map in light of the Justices’ questioning at oral argument suggests a split decision is all but assured. Which side prevails depends on how swing Justices end up navigating the doctrinal tensions depicted.
The primary contested territory concerns the Court’s post-Terry doctrine concerning the reasonableness of searches in absence of a warrant. As illustrated, these decisions do not point in single dominant direction. Thus, Maryland could prevail if a majority is persuaded that DNA testing of arrestees should be viewed as a routine procedure like random drug testing of customs employees (Von Raab) or student athletes (Veronia School). On the other hand, King could prevail if a majority is persuaded that this kind of suspicionless search is more like drug testing pregnant women for potential criminal prosecution (Ferguson) or setting up random drug interdiction checkpoints (Edmond). Of course, much will ride on how the majority views the privacy interests of arrestees. Maryland is betting that a majority will view the diminished privacy interests of arrestees as sufficiently similar to that parolees (Samson) and probationers (Knights) to merit warrantless searches. For his part, King is wagering that a majority takes refuge in previously articulated limits on searches incident to arrest (Gant, Chimel).
As shown, this case really stands at the intersection of post-Terry warrantless-search doctrine and the Court’s modern search-incident-to-arrest doctrine. Indeed, it can be observed that the current uneven and conflicting nature of the Court’s warrantless-search doctrine very much resembles the similarly fractured state of the Court’s search-incident-to-arrest doctrine prior to Chimel. This hints at the reason why Justice Alito called King the most important criminal procedure case in decades. This case has the chance to resolve contradictions make a definitive statement about warrantless-search doctrine – much as Chimel made a definitive statement over four decades ago.
 See Transcript of Oral Argument in Maryland v. King, No. 12-207 (Feb. 26, 2013) at 34.
 The doctrinal maps were created using custom software designed and implemented by the author and Darren Kumasawa. For an extensive theoretical discussion of the mapping concept, see Colin Starger, Exile on Main Street: Competing Traditions and Due Process Dissent, 95 Marq. L. Rev. 1253 (2012). See also Colin Starger, A Visual Guide to NFIB v. Sebelius: Competing Commerce Clause Opinion Lines 1989-2012, 2012 Cardozo L. Rev. de novo 316 (mapping Commerce Clause doctrine from 2012 Affordable Care Act decision).
 See generally Brief of Petitioner, Maryland v. King, No. 12-207 (dated December 2, 2012).
 See, e.g., id. at 12-13, 15.
 See id. at 18-19.
 See id. at 17, n. 4.
 See generally Brief of Respondent, Maryland v. King, No. 12-207 (dated January x, 2013).
 See id. at 25.
 See id. at 22.
 See id. at 22, 42-43.