(When) Was Fingerprinting Unconstitutional

Details

Author(s):
Publish Date:
June 5, 2013
Publication Title:
PrawfsBlawg, June 5, 2013.
Format:
Blog Postings
Citation(s):
  • William Baude, (When) Was Fingerprinting Unconstitutional?, PrawfsBlawg, June 5, 2013.

Abstract

One of my main items of business during this blogging stint is to write about this month's Supreme Court cases as the term wraps up.  So the first order of business is Monday's cases.  I fear I don't have anything interesting to say about Hillman v. Maretta, the group life insurance case that a friend described as “the most preempted law ever.”  And while a lot of people have written things about Maryland v. King, I thought I'd throw in my own thoughts.
I'm more sympathetic to the dissent's reasoning than I expected to be.  When I first saw the case granted, I confidently predicted a reversal and I wasn't even sure there would be a dissent.   But I do now see why the dissent thinks this is a questionable extension of the special needs doctrine.  It's common ground that the police can't just go search your house or your off-site car or your gym locker without suspicion when you've been arrested, so it needs a story about why DNA is different.  And the claim that the DNA searches are largely for identification purposes rather than crime-solving purposes seems implausible.
That said, I don't think Justice Scalia does a good job of distinguishing DNA from fingerprints.  As I read it, the dissent actually trots out three different arguments about why its view doesn't forbid the routine fingerprinting of those who are arrested.