CHAIRPERSON ABRAHAMSON: We are convened. On the agenda is Professor Michael Smith, Chair, and Professor David Kaye, Reporter, Legal Issues Working Group Report and Discussion. Did everybody get a copy of the report?

DIRECTOR ASPLEN: They should have. It's this document that has the square on the front of it and it is called The Constitutionality of DNA Sampling on Arrest.

COMMISSIONER SMITH: This will be principally David's moment, I think, but I want to just frame it a bit. I'm glad you got a copy of the notes of our last meeting, the working group meeting. So I won't go through all of that.

But after our meeting in Dallas, we received a copy of the Attorney General's letter to the Chair and took it as part of our responsibility to, in pursuing the questions of privacy surrounding forensic DNA, we ought to focus initially a lot of attention on this arrest question.

We've asked David to do that. In our conversation about it, though, I should say that we also discussed a report to this Commission from our working group in which we would touch upon some of the related issues of capacity to do some of the things that have been proposed and some of the broader issues of privacy that have been suggested.

But at this point, I think we want to focus in on the frame of the Constitutional issues, and David has done that for us. I have not had a chance to read his report, so we're going to look for an oral presentation from David.

MR. KAYE: Thank you, and I guess I want to thank the Commission for giving me the opportunity to catch up on 15 years of Supreme Court cases since I've last taught criminal procedure.

But I'm going to talk today briefly -- well, we'll see -- about the Constitutional issues involved in taking DNA samples on arrest.

I'm going to try to limit my remarks really to that question; not to whether it's a good idea, not to the policy concerns, not to whether it's okay in a broad sense, but just to whether or not it is consistent with the United States Constitution.

If I were to take the three questions that Professor Trubow or the three questions that Professor Trubow raised, is it okay to take DNA from an arrestee, I would say the answer is maybe; is it okay to save the genotypical data from an arrestee, I would say maybe; is it okay to save biological samples, the bottom line is maybe.

I think these are all interconnected questions and it depends on the details of the system that's adopted, on the protections that it provides, as well, and that they're really not separable. But I'm going to try to tell you a little bit of why I come to those conclusions.

The report here, which reflects my thinking thus far, is very preliminary. I mean, it's labeled tentative draft. It has not been reviewed by anybody else, because I just finished it last night.

So it's very much open to revision and I'm hopeful that the discussion here will inform a better draft of it.

The first thing I'm going to try to do or the general thing I'm going to try to do really is discuss a legal framework for evaluating the constitutionality of DNA sampling on arrest, and, primarily, this will involve mention of a number of Supreme Court cases from the United States Supreme Court.

I want to make an important caution here, which is that state constitutions often have their own provision about searches and seizures. Those may differ as interpreted by the state Supreme Court from the United States Constitutional protections under the Fourth Amendment.

Thus far, I've only analyzed the U.S. Constitution. Now, I will say, in the convicted offender data banking cases the courts have handed down, the state courts have generally said that they see no relevant differences. But there are other cases where they turn up. So that's just not been addressed yet.

Having identified a legal framework for you, I want to talk about how that would apply to the arrest situation. I'm going to suggest that will depend on a number of facts and I don't propose to give you a definitive answer to is this constitutional, but rather to alert you to the considerations and the factual information that would determine that answer, and the Commissioners here may know more about that than I do and so I'm more interested, in a way, in trying to give you a sense of how the law approaches this question at a general level.

My approach will, I hope, be non-adversarial; that is, I'm not trying to argue for the ACLU position or for a prosecutorial position. My own background, I've been a prosecutor. I've been in private practice. I've been counsel on ACLU cases for the ACLU. I've consulted for both defense and prosecution on DNA evidence cases.

So I don't have any particular axe to grind here. I'm just a law professor and this is going to be fairly professorial.

What I find the most difficult aspect of this area of the law is figuring out the analytic framework to apply. So I'm going to give you, in essence, the perspective that an appellate lawyer would have if one tried to argue this matter before a court.

Because it takes a little while to kind of lay out that framework, feel free to interrupt me at any point in the analysis, if you have any questions.

Let me start by putting to the side certain things that are really non-issues that might occur to people as arguments against the constitutionality of creating -- of including in DNA data banks samples from people who are arrested. One might think, at first glance, for example, that the Fifth Amendment's prohibition on self-incrimination might apply; we are making someone incriminate himself by donating perhaps a sample. That's a non-issue in the sense that in recent decades, the U.S. Supreme Court has very clearly interpreted that clause not to apply to non-testimonial evidence; specifically, for example, to blood samples in a case, Schmerber v. California.

Every court to address that question in connection with DNA convicted offender data bankings has found it -- has summarily rejected that argument. So I'm not going to spend any time on that.

Due process is sometimes raised. There are cases in which the method of a physical intrusion could be so offensive as to violate the due process clause of the Fifth or Fourteenth Amendments. That, however, is clearly not going to be a problem with the kind of sampling that's done to obtain DNA, which is minimally intrusive. So, again, that's an argument that no court has bought in this context.

The more difficult question is the Fourth Amendment. The Fourth Amendment, just so we have it before us, provides that the right -- speaks of the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrant shall issue, but upon probable cause, supported by oath or affirmation and particularly describing the place to be searched and the persons or things to be seized.

So compulsory DNA sampling on arrest would violate the Fourth Amendment if, number one, it constitutes a search or seizure, that, number two, is unreasonable. It might be unreasonable because the police lack a judicial warrant to take DNA, because they lack adequate information to believe the DNA will help to prove that the suspect is guilty of the crime for which the arrest is made, or because the system of collecting and using the samples unjustifiably invades personal privacy.

Those are going to be the kinds of arguments that one has to address. So first, I want to talk about this question of really the threshold question, is the taking of DNA a search or seizure within the meaning of the Fourth Amendment.

The answer, I think, depends on the nature of the sampling, on now invasive it is. So let me tell you about the legal framework first for answering that question. A very fundamental case in the Fourth Amendment area, on which most cases interpreting what a search or seizure is, turn on is a case known as Katz v. United States.

In Katz, the government acquired key evidence to convict a defendant of interstate gambling by attaching an electronic listening and recording device to the outside of a telephone booth, public telephone booth. The Supreme Court held that the interception was a search, even though there was no physical intrusion, no trespass, the telephone booth was a public place, and the Court said the Fourth Amendment protects people, not places, and it protected the defendant because he, upon entering the telephone booth, the court said someone who shuts the door behind, the pays the toll that permits him to pay a call, place a call, is entitled to assume his conversation is not being intercepted.

The idea of what material was exposed to the public was important in that case. The public exposure and knowledge kind of issue has been applied by the court to read certain kinds of things outside of the Fourth Amendment in other contexts.

In a later case, United States v. Dionisio, the grand jury subpoenaed 20 individuals to give voice exemplars to see if one of them was on the tapes that the government made pursuant to a warrant involving interstate gambling. The Supreme Court reasoned that there was no search or seizure in making someone speak those words, because one's voice was a characteristic that was routinely exposed to the public.

So the question becomes, in the DNA context, is DNA something that is routinely exposed to the public.

In fingerprinting, a number of courts have reasoned that fingerprints are deposited in public places and, for example, the Indiana Supreme Court reasoned that warrantless acquisitions of a defendant's fingerprint during trial did not constitute a seizure forbidden by the Fourth Amendment, because fingerprints are an identifying factor available to the world at large.

Citing this voice exemplar case I mentioned, Dionisio, other courts have held that shining an ultraviolet lamp on an arrestee's skin to expose chemicals transferred from stolen money is not a search, because the fluorescent material may be compared to a physical characteristic, such as a fingerprint or one's voice, which is constantly exposed to the public.

Now, we could argue that DNA, as much as a fingerprint, which is constantly exposed to the public, I sneeze, perhaps I drool, in any event, I leave a trail, I suspect. I exfoliate cells from my skin. I leave a trail of DNA just as I leave a trail of fingerprints.

Is that enough to make the collection of that DNA something that is short of a search or seizure?

The fundamental issue, I think, is not exposure to the public. Now, this is sort of my analysis, now that I've exposed you to sort of the legal framework for a minute. The real key question in Katz should not be so much what is exposed in some vague way to the public, where there is not really public knowledge of it. It should be what's a reasonable expectation of privacy, which is a phrase that occurs in Katz, as well, and do people reasonably expect that the government is going to go around picking up little pieces of DNA and analyzing it.

I think the answer to that is no and that, therefore, one should not be able to escape the notion that there's a search or seizure just by reason of the public exposure aspect of Katz.

The invasion of the body is another issue in deciding what a search or seizure is. With blood samples, the Supreme Court has held, for example, in taking a sample of blood for a chemical analysis of alcohol level, in a case of someone who is in an accident, that it could not reasonably be argued that the administration of the blood test was free of the constraints of the Fourth Amendment. It plainly constitutes a search of persons, depends on seizures of persons within the meaning of the amendment.

But what about a buccal swab, what about swiping cells from the inside of the cheek, where there is no invasion and pulling out of blood, is that sufficiently non-invasive to be distinguished from Schmerber?

A subsequent case deserves mention here, Cupp v. Murphy. In Cupp, the defendant was suspected of strangling his wife. The police took fingernail scrapings from him, over his objections. The scrapings contained traces of skin and blood cells and fabric from the victim's nightgown. The defendant was convicted of murder. The case came before the Supreme Court on a petition for habeas corpus and the court reasoned that the removal of the material under the defendant's fingers was a search.

They wrote, unlike the fingerprinting in Davis, the voice exemplar obtained in united States v. Dionisio, or the handwriting exemplar obtained in another case, search of the respondent's fingernails went beyond mere physical characteristics constantly exposed to the public and constituted the type of severe, though brief, intrusion upon cherished personal security that is subject to constitutional scrutiny.

If scraping or cutting a fingernail to remove dried blood or other debris is a search, then I think so is the scraping inside of a cheek.

What about saliva samples? From what I have read in the press, that's how New York City would propose to obtain DNA samples of arrestees. There is no invasion of the body, there is no active scraping, and said stuff is spit out. Does that make a difference? Well, it's similar to breath sampling, in one respect, where someone breathes out for the purposes of breathalyzer.

The Supreme Court spoke to the classification of breath sampling in a case known as Skinner v. Railway Executives Association, which I want to talk about in another context, too, so let me tell you the facts.

The Federal Railroad Administration promulgated regulations that mandated blood and urine tests of employees involved in train accidents and that authorized railroads to administer breath and urine tests to employees who violate certain safety rules.

The breath and urine tests, in some cases, were authorized upon a reasonable suspicion of drug or alcohol impairment and others did not require any showing of individualized suspicion at all.

The Railroad employees alleged this system violated their Fourth Amendment rights and the Court of Appeals for the Ninth Circuit invalidated the regulations, holding that the drug testing required reasonable suspicion.

The Supreme Court reversed. It did not dispute, however, that taking breath samples is a search and the court really perceived no distinction by taking blood by puncturing a blood vessel and having a person expel air from his mouth.

On the other hand, the court did say, did refer to subjecting a person to a breathalyzer test, which generally requires the production of alveolar or deep lung breath for chemical analysis implicates similar concerns about bodily integrity as the blood alcohol test we considered in Schmerber.

So is the court saying that it's the location of the air -- in the alveoli -- rather than the mouth that matters? That's what appears in the language of the Skinner court.

That seems to me a unidimensional sort of analysis that doesn't help particularly and Skinner, I think, does not dispose of the argument then that saliva sampling, which involves no penetration of the body or its cavities, is not a search. So I think that's not an argument that can be dismissed out of hand.

Skin scrapings. I mean, suppose we could get DNA from exfoliating epidermal cells or by having someone press a finger down on a sticky pad that would pull off cells that could then be analyzed.

At this point, are we getting to the stage where we could say the invasion is so different, the level, it's really a surface of your body that's constantly exposed to the public and so on, that one gets into the argument that maybe it's not a search or seizure, at least by virtue of the invasiveness of the procedure.

But there is one further consideration we need to mention before leaving the issue of whether something is a search or seizure, at the outset, and that is the nature of the information that is obtained.

In fingerprinting, there is some dicta, at least in Supreme Court cases, to suggest it might not be a search or seizure, partly because it doesn't involve a level of intrusion of information-gathering of anything beyond identification, and we've already had a discussion about that.

Here, again, the Skinner case is helpful because it considered urinalysis, which also involves not direct invasion, but, again, material like saliva that comes out of the body, and in Skinner, the court observed it is not disputed that chemical analysis of urine can reveal a host of private medical facts about an employee, including whether he or she is epileptic, pregnant, or diabetic.

So the notion then is that there are, I think, private medical facts, the obtaining of which could implicate the Fourth Amendment and make this a search or seizure, not by virtue of the taking of the material, but by virtue of the subsequent analysis.

So my own guess, although I think there are arguments that might be made here, is that the courts will say and should say that taking of the material, unless it is taken in a way that is structured very carefully to make sure there can be no such revelation of private medical facts, will constitute a search or seizure that then needs to be justified under the Fourth Amendment.

So maybe -- and I'll throw this out to the Commission to sort of think about -- maybe if the police collected material, instantly analyzed it with a portable DNA analyzer, transmitted the genotypic information in digital form to the central database, and this may be the future of DNA evidence, a little futuristic, and then destroyed the sample in the presence of the defendant, maybe that would not be a search or seizure. Maybe that would be comparable to other methods of obtaining information.

It certainly seems no less troublesome than shining the UV lamp on the defendant's skin to detect material that might have been deposited from the crime, for example.

COMMISSIONER SANDERS: The only difficulty I have with everything you said about whether it's a search or seizure is every case you cited is reference to the collection of evidence of a crime.

I'm not sure I see how those cases tie into identification purposes of -- for instance, maybe the discussion of what the case law says as to the collection of fingerprints for the purposes of identification, not for investigating purposes, not for testimonial kind of collection of evidence that gets to the individual, but specifically for identification purposes.

It would seem to me like that's where I would argue that that's not a search and seizure in that regard, because every case you've quoted is a reference to the collection of evidence against an individual.

MR. KAYE: Well, I'm pretty sure that if we took a sample of blood, penetrating the skin, that would be considered a search or seizure, even if it were only for identification, because I think the court is concerned with the degree of bodily invasion, as well, and the threshold question of is something a search or seizure depends not such much on the use to which the evidence is put, although that can be a factor if it reveals private information, but more on is there a reasonable expectation of privacy either from bodily invasion or from some kind of collection of information about the person.

I do think the distinction you offer is crucial. Once we reach the level of asking -- assuming it's a search of seizure, is it one that is reasonable under the Fourth Amendment, but I don't want to say that your argument would not, in fact, prevail.

I can imagine a court saying that given the limited use for identification of this material, there is no reasonable expectation that someone could not obtain, in a fairly non-invasive way, some material which could only be used for identification.

COMMISSIONER SANDERS: A furtherance of the argument would be the fact that you've established probable cause and the purpose of the arrest.

MR. KAYE: That is very important.

COMMISSIONER SANDERS: I guess that's why this creates a difference, in my mind.

MR. KAYE: It makes a difference constitutionally, also, for the following reason. Detaining someone requires just -- seizure of the person in order to get the material requires justification. So the Supreme Court has held that it is unconstitutional for police to round up, without probable cause, all blacks in an area because of a crime in which the victim has identified a black as an assailant in order to obtain fingerprints to provide evidence -- not just for identification in that case, but to link it to a crime.

The court held that the basis for the detention has to be justified. It remarked that the fingerprinting wasn't such a problem.

So the more this is analogous to pure fingerprinting, because the technology is circumscribed, the method of invasion is no more significant, the more there is a solid argument that this is not a search or seizure.

Let me move to the second issue, which is assuming that there is a search or seizure, which is likely, I think, that most courts would conclude, assuming there is, is it one that is justified or can be deemed reasonable within the meaning of the Fourth Amendment, or is it unreasonable search or seizure.

Now, here, the difficulty is identifying the proper framework for analysis and the Supreme Court cases, I can tell you, are very confusing on this area.

So I think this would be a great examination question for my students. Here is the answer. First, there is a debate among -- there really are kind of two lines of cases. The line of cases that emphasizes that searches and seizures are kind of unreasonable, per se, if they lack a warrant, based on probable cause and so on, and there are a lot of exceptions to that. There are categorical exceptions to things like a search incident to the arrest.

For example, in Cupp v. Murphy, the case I mentioned with fingernail scrapings, there was no warrant, but the police deemed there was sufficient cause to arrest the individual at least by the time the police had observed -- had asked the individual if he could -- that they noticed the material under his fingernail, which was reddish in color, and said can we take the scraping of that, and the next thing they saw, his hands were behind his back, then they were in his pockets, there were jingling noises like keys or coins, and at that point, the court said there was probable cause to arrest.

The police could, to prevent the destruction of evidence, he was scraping the material out, proceed to take a sample. But that failed, the court said, within a well established categorical exception to the notion that there needs to be probable cause and individualized suspicion and a warrant.

So one approach that we have to consider is whether or not DNA collection from arrestees can be analogized or fit into an existing category of searches that are allowable without individualized suspicion, without a warrant.

But there is another approach that the court sometimes uses which seems to be outright balancing of interests. It seems to say that, well, the degree of invasiveness of the search and the intrusion of privacy has to be weighed against the government's interest in searching, including identification, including all kinds of things, and when one does that, that will determine whether the search is reasonable, regardless of a warrant, regardless of a lot of exceptions.

And you find recently statements by Justice Scalia in cases which would say unless there is a well established sort of common law restriction, we just balance. In a way, I think that debate is not a big issue here. The reason is that even if you say you look for a categorical exception, it's always open to argue that there should be a new exception, and that requires balancing.

So I'm just going to talk for a moment about the categorical exceptions that exist and which will require us to turn to balancing anyway and not worry about whether you do ad hoc balancing in Fourth Amendment cases.

There are, I think, two major categorical exceptions that might be applied here. I want to, again, put to the side one that doesn't apply, which is the incident to arrest exception. As illustrated in Cupp v. Murphy, that applies where the search, where the police need to search because they need to secure to be sure that the arrestee has no weapons that might then be used against the police, to be sure the arrestee -- to protect evidence from being destroyed, those kinds of limited searches incident to arrest are allowed.

But that's not going to help here, because we're not talking about a search to avoid the destruction of evidence or for weapons. The DNA that the individual has is going to be available for as long as the individual is alive.

All right. So what are the exceptions that are might apply? There are two. There is one that goes under the rubric of special needs exception, and let me -- and the other is one that's not explicitly recognized in Supreme Court cases, but which I think is of great -- is easy to argue for and lower court cases, in effect, recognize it, which I will call an identification exception.

Now, the special needs exception is one that has engendered considerable debate in some of the convicted offender database cases that have come to the courts on Fourth Amendment grounds. The Massachusetts case, Landry v. Attorney General, that was decided a few weeks ago, for instance, by the Supreme Judicial Court of Massachusetts upholding the constitutionality of the database for convicted offenders, was one in which, at least the briefs I looked at, argued that this DNA data banking couldn't be fit under the special needs cases.

So what are these special needs cases? The Supreme Court, in a case, Treasury Employees v. Von Raab, which dealt with the collection of -- which dealt with drug testing of Customs -- of individuals in the U.S. Customs Service as a condition for promotion or for serving in certain positions where they carried firearms, the court upheld that and in doing so it made it clear -- well, let me read you what the court said; while we have often emphasized and reiterate today that a search must be supported, as a general matter, by a warrant issued on probable cause, our decisions in Railway Labor Executives -- that's the Railway case with drug testing I mentioned -- reaffirms the longstanding principle that neither a warrant nor probable case nor indeed any measure of individualized suspicion is an indispensable component of reasonableness in every circumstance.

As we noted in Railway Executives, our cases establish that where a Fourth Amendment intrusion serves special governmental needs, beyond the normal need for law enforcement, it is necessary to balance the individual's privacy expectations against the government's interests to determine whether it is impractical to require a warrant or some level of individual suspicion in the particular circumstance.

Now, Von Raab uses this phrase "beyond the normal need for law enforcement," but it uses it, I think, not to define every circumstance in which balancing should be used, but rather to label a whole bunch of cases in which the Supreme Court has held it's okay to dispense with a warrant or it's okay to dispense with individualized suspicion.

What are those cases? They have involved administrative inspections in closely regulated businesses, stops for questioning or observation at a fixed border patrol checkpoint, or at a sobriety checkpoint, routine or random blood testing and urinalysis of employees, student athletes, but not, by the way, candidates for public office, random shakedown searches of prison cells, and even visual, anal or vaginal examination of pre-trial detainees, people who are not convicted.

In each case, the court has considered the importance of the government's interest, the practicality and value of securing a warrant, and requiring individual suspicion and the gravity of the privacy invasion.

Judges have disagreed as to the applicability of the special needs exception in the convicted offender database cases, by the way.

My own view on this is that it is applicable; that this is the kind of situation in which the warrant protection, in which individualized suspicion is not crucial. Why is that? Because we're not asking the question of is there probable cause to think that this individual has committed a crime and that we will now obtain some evidence of that crime by virtue of a search.

The collection of this information is based on quite a different rationale which doesn't require individualized examination, but simply involves identity, the collection of information for certain purposes, where we don't really care anymore whether there is that individualized suspicion, because the information is still useful and valuable, the argument goes, regardless of that.

It can be used to check this individual against the database of crimes in which there is DNA evidence that already exists, for instance, and it can be used for purposes, for purely administrative purposes of having a record of who the individual is, which makes it much more likely administrative search case in which this special needs exception developed.

That case, by the way, Camara v. Municipal Court involved housing code inspections in which the inspector would go out to all kinds of premises and an individual who was living in an apartment said you can't inspect my premises without a warrant, and the Supreme Court said, well, okay, the judges can issue a general warrant to search the entire neighborhood because it's reasonable, they don't need individualized -- they don't need detailed suspicion about that there is a housing code violation at an individual house; after all, this can lead to important discoveries of violations to protect the public health and so on.

So that's the line of cases and I think they can be applied here, and we can talk then about the balance that applies in special needs cases. So now we come to the difficult question, I think, which is, okay, does the balance of interest then justify the search, does it make it reasonable.

So what are those interests? Well, there's the individual interest in privacy and, again, how troublesome that is depends on the method of collecting the data, how intrusive is it, is it blood sampling, is it buccal swabs, is it saliva, is it something else.

The more it looks like fingerprinting, the less the individual interest and the more a government interest will, therefore, trump the individual's interest here.

Well, what are the government's interests, however? The detection and prosecution of serious crime, and that's a compelling interest. But the further question is how much does this arrestee collection and data banking advance that interest.

How useful is it to collect samples from individuals on arrest rather than conviction? With the road block cases, for example, and the stopping of individuals, the court could say that even though there are very -- there's a very small percentage of people who were found at the stops to be driving while intoxicated -- it's about one and a half percent in the particular case before the Supreme Court -- it really didn't matter. After all, in Camara, the case involving the housing code inspection, how many housing code inspections actually lead to violations? A very small percentage.

So the argument that very few people on arrest are going to prove hits on the database is not dispositive, or is it? Because part of the argument in these other cases is that there is a deterrent effect to the system, that people will not be as inclined to drive while intoxicated, their housing codes, their houses, the premises will be kept to code because they know they'll be inspected.

Well, is anybody really going to say I'm not going to commit a rape or a murder because when arrested for some unrelated offense, my DNA might be searched.

That becomes much harder to see the interest there as being comparable. The individuals, if they are convicted, can have the DNA typed later anyway, so the question, in a way, becomes or might become what's the marginal value, the extra, incremental value of taking DNA samples on arrest.

Let me point out an interesting fact here, too, where it could actually backfire on law enforcement to start taking samples on arrest. The police, one of the reasons for not worrying about the warrant requirement is that the warrant is designed to interpose the judgment of a neutral magistrate on discretionary subjective decisions. You find that language in a lot of cases, right?

Well, the decision to arrest involves a certain amount of -- a great amount of discretion and indeed subjectivity.

That doesn't mean a warrant is always required, but certainly probable cause is required, and if an arrest is made without probable cause and a search is made incident to that arrest, wouldn't the material obtained in that search be suppressed in a trial?

So one could imagine then an argument being made that, well, we've got a hit now from an arrestee, but it turns out the arrest didn't have probable case when viewed later by a court, and so what can be done. Almost anything might be a fruit of that illegal arrest.

So there is a real risk, in a way, of DNA sampling on arrest that doesn't occur with DNA sampling on conviction. But my point is more that the interest here, if you really define it narrowly, is the marginal value of taking the DNA samples from an arrestee and not waiting until there is a conviction becomes more limited. Now, it's not to say there is no value. One might, for example, find somebody who is -- find a case in which there is a hit, with an arrestee, and it's a case in which someone else is being tried at that very moment and could be convicted.

So we're not just talking about finding people to prosecute. We're also talking about exonerating the innocent when we talk about using these databases.

But, again, even if that person is convicted, if there is adequate post-conviction remedies, won't the material be discovered upon conviction? Well, again, that's not a full answer, I suppose, because the individual might not be convicted who is arrested, and yet we would still have had a beneficial effect from sampling upon arrest.

So I'm not going to claim there is no government interest or that it's completely minimal, but it is reduced if we already have in play the convicted offender databases and fingerprinting and everything else.

Now, there's another state interest besides the prosecution of crime, or it's related, but comes in in a very different way, and that's identification, having adequate record on somebody. But I think that's better, and that would go into the balance under the special needs test, too, how important it is to have DNA, like fingerprints, for keeping track of who people are.

But I want to treat that a little bit separately because I think one can describe basically an identification exception that we see now and in order to understand that exception, I want to go back to cases that were decided much earlier when fingerprinting first came on the scene and even before fingerprinting, when courts struggled with the question of, on arrest, do people take -- could police take pictures or biometrics measurements to use in the Bertillon system, which existed before measurement -- before fingerprinting, to identify individuals by the sizes of their extremities and things like that.

Those were challenged on Fourth Amendment grounds, as well. Over a century ago, in an Indiana case, an arrestee sought damages from the sheriff for taking plaintiff's picture and including it in the local rogues gallery, and the Indiana Supreme Court held that the sheriff was acting within his legal authority.

Now, why? It would seem, therefore, if, in the discretion of the sheriff, he should deem it necessary to the safe keeping of a prisoner and to prevent his escape or to enable him to more readily retake the prisoner if he should escape, to take his photograph and a measurement of his height, to ascertain his weight, name, residence, place of birth, occupation, the color of his eyes, hair and beard, as was done in this case, he could lawfully do so.

In 1932, in a 2nd Circuit case involving three of the greatest judges in American history, Learned Hand, Augustus Hand, and Judge Swan, the 2nd Circuit applied that same logic to fingerprinting cases, saying that such means for the identification of prisoners so that they may be apprehended in the event of escape, so that second offenders may be detected for purposes of proper sentence where conviction is had, and so that the government may be able to ascertain, as required by the National Prohibition Act, whether the defendant has been previously convicted, are the most important adjuncts in the enforcement of criminal laws.

The slight interference with the person involved in fingerprinting seems to us one that must be borne in the common interest.

So today, most courts take it for granted that fingerprinting on arrest is okay. But the rationale, if you go back in history, had to do with this idea of knowing for sure who the person you have is. It wasn't to compare fingerprints with a data bank of fingerprints to see if the person was involved in other crimes.

So I see the identification exception as really being a purely kind of administrative matter that's important in the administration of law enforcement, but it's a much narrower interest than might exist, and we've talked about the other interest already with DNA databases.

So can the identification exception justify arrestee fingerprinting here?

Well, the thing that bothers me about it is the idea that the police already can take fingerprints, which, in one respect, is better than DNA in identifying an individual; namely, even identical twins have distinct fingerprints. They're not going to have distinct DNA patterns.

So for purely knowing is this person the person who he says or she says he or she is, really do we actually need DNA on arrest, in case the person escapes, to reidentify them later, or those other items that are mentioned by the Kelly Court, the 2nd Circuit.

I think that's a hard argument to make. It's not to say there is not a state interest in identification information for other purposes, for the intelligence-gathering, for linking to other crimes, but that's better analyzed under the special needs case as part of the balancing, and then we have to ask how much the balance favors the government there.

Well, that's the legal framework that I suggest to you makes the most sense in asking the question is it constitutional to take DNA samples on arrest, to analyze them, to store them in a database.

As I say, a great deal may depend on the precise details of the system, how invasive it is of privacy, and how compelling an argument can be made for the benefits of doing this on arrest as opposed to waiting until conviction.

So I leave you at least with my preliminary analysis, which hasn't been run through the work group, hasn't been debated in any other way, so as being that the answer to the question is, well, there are arguments that constitutional lawyers can make on both sides of this question.

I can tell you how I would decide the case on what I know so far, if I were a Justice, which I am not, and I don't know everything that would occur in a brief, but I think this is the way one needs to think about that question.

Questions?

CHAIRPERSON ABRAHAMSON: Thank you, Professor Kaye. That was very helpful.

COMMISSIONER SMITH: We're glad we asked, right?

MR. KAYE: More than you wanted to know about the Fourth Amendment.

CHAIRPERSON ABRAHAMSON: Any questions?

COMMISSIONER CLARKE: Actually, I want to thank Professor Kaye obviously for the wonderful work he's done on this. I almost feel like a Congressman thanking Alan Greenspan.

MR. KAYE: Yes, but the stock market will not go down because of what I said.

COMMISSIONER CLARKE: But I think you took it in a step-by-step fashion very well. I'm going to throw in kind of my two cents. I think there is almost three parts to this, as I was sitting here thinking about it and dreaming back to my days when I spent all of my time on Fourth Amendment issues when I used to work for a local trial clerk.

It brought back a lot of memories of a lot of cases. But one element that I think we will need to look at at some point is there may be statutory enactments. We know there are statutory enactments in terms of the current convicted offender profile databases and there may be, and I'm not familiar with if there is any movement towards that already, actual statutory enactments to declare this is the point of the proceedings at which we want, as a state legislature, or at the Federal level perhaps, samples to be taken.

That may -- well, it will impact, if there is such legislation, obviously, on ultimately judicial decisions on constitutionality and so forth. So I think we'll just have to wait and see if that occurs.

But I think you've distilled it down to the real issues. First of all, is this a search, and that obviously enters into the discussion of is it reasonable versus unreasonable, which will ultimately require an analysis of the methods that are used, just like you said. Is it currently, for example, a blood drawing using an intravenous device or is it going to be something simpler than that, less intrusive, like a saliva collection or even these devices that are, while technically an invasion of the body, the use of these lancing devices that we've heard about, or literally, as I understand it, with little or no sensation on the part of the person whose sample is collected, that a blood sample is obtained and collected in a fairly rapid fashion.

That will obviously enter into the reasonableness versus the unreasonable nature of the search.

But lastly, if we can truly grab a crystal ball and determine what's going to happen, I think you've hit it on the head, it's going to be a public policy question, and you immediately brought -- or when you mentioned, I was thinking immediately of where I'm from, southern California, where we are fairly dramatically impacted obviously by border searches, searches at the border.

But perhaps more importantly, searches that don't occur on the border, where, at 40 miles north of our border, we have what's been declared to be an absolute lawful stop with no suspicion whatsoever of individuals crossing Interstate 5 to determine if there is any involvement of illegal aliens and so on.

And even in the liberal days, I'd say quite liberal days of our California Supreme Court, back in the 1980s, we had no difficulty whatsoever with upholding those particular right of suspicion searches. So I think ultimately that's what -- that's my position -- that's what it's going to come down to and I don't think our courts are going to have a lot of difficulty with that, assuming that the collection is not as intrusive as it may appear to those who don't like having needles stuck in their arm and methods are developed to deal with that particular issue.

I think the only area I really do disagree is the value of arresting collection scenario. Although obviously at this point it's been perhaps nothing more than a little bit above anecdotal, certainly the comments of the Commissioner were at least instructive in terms of determining how often people are out there committing the crimes that, frankly, don't have offenses in their background, they could qualify for collection under the current scheme, what would qualify under an arresting scheme.

At this point, again, we're dealing with anecdotal information more than anything, but hopefully we can obtain more studies or at least greater research determining how many people really are out there that an arrestee collection scheme would, indeed, identify individuals before they commit further attacks, obviously, on the victims in our society.

But I do want to thank you again. I think that's an excellent analysis.

MR. KAYE: May I offer two comments in relation to that? One is, Louisiana, I believe it is, has a statute to go into force in September that does provide for taking DNA samples of sex offenders on arrest. There are bills pending, I believe, in at least one other jurisdiction. We'll see how much they actually do with that authority.

Also, in that connection, the case I mentioned from the 2nd Circuit about finger-printing, the 1932 case, Kelly, the argument was made in that case that it mattered whether there was a statute that approved of the fingerprinting or not, because there wasn't one in the case of Barr, and the 2nd Circuit said it doesn't matter. It's a common law notion that you can take these -- that you can take identifying information upon arrest. We don't need a statute to authorize it and it's still constitutional.

So I'm not saying it wouldn't help to have a statute, but there is some argument about that.

COMMISSIONER CLARKE: It's actually, in a way, dealing with the statutes dealing with, in some states, the admissibility of DNA type. Frankly, in some states, they played a role in the court's decision and in other states, they played no role in the court's decision.

MR. KAYE: And there was another point you had which I've now forgotten my comment about. So I'll move on.

CHAIRPERSON ABRAHAMSON: Sheriff.

COMMISSIONER KENNARD: Professor, this was very well done. I appreciate your efforts in this regard, too. I get back to your special needs exception on page 17, and you suggest here how useful it is to collect samples from individuals on arrest for other than conviction, particularly for minor offenses. As a law enforcement officer, we refer back to the broken window syndrome, where those who are doing the minor offenses are the ones that are going to have a high propensity for committing these other crimes, and you hit it right on the head, suggesting how are we going to determine what my crime prevention is doing and how can I articulate and quantify how much crime I have prevented by my crime prevention.

It's near impossible to do that, but that doesn't mean we stop doing it. And I believe it's in the government's best interest that we do this with the very issue of the small criminal escalates to the bigger criminal.

MR. KAYE: On Monday, I spoke with David Raritt about providing some statistics from England on just that matter of how much the minor crime collection is helpful in their system.

I'd add only one thing to what you say, because -- and that is, the question on arrest perhaps has to be focused even further to then do people who commit minor crimes go on to commit major crimes, because surely many do.

That is, if -- that argument, it seems to me, is a good argument for expanding the scope of crimes in the convicted offender database, for sure, right? And it's an issue I believe I heard talked about by David Coffman in Florida, that by expanding their database, it's becoming much more effective because they can get into these other crimes.

That's with the convicted offender database. So the question with the arrestee issue is, okay, do you catch enough people in the period between committing -- being arrested for the minor offense and being convicted for a minor offense that could be included in a convicted offender database.

Is that improvement sufficient to justify the invasion or privacy? Now, it might be. It would be helpful, before this is litigated, to try to develop whatever information one can on that point. But, of course, how can you do that if you don't start doing it by arresting people.

So maybe Louisiana, if it does that, but they're not doing arrests for minor matters. They're only doing arrests for sexual crimes.

DIRECTOR ASPLEN: But don't they -- if you are arrested for something, but ultimately cleared, the record of your arrest stays on your rap sheet, doesn't it, in most instances?

COMMISSIONER CLARKE: Unless you expunge it.

DIRECTOR ASPLEN: Unless you have it expunged, and as such, we may well be able to do that kind of study if we look at rap sheets of individuals who are, in fact, convicted and go back and look at how many times they were arrested and when they were arrested.

So it seems to me that between the numbers from the United Kingdom and what could be some studies here in the United States, we could essentially get a good analysis of what the benefit would be.

MR. KAYE: The reason I think that might be very helpful is that you do find in the convicted offender cases, the database cases there, statements from at least the dissenting judges or concurring judges. It's not the case that every judge that looks at these convicted offender databases thinks they're constitutional. Often, one finds in the dissents, or sometimes, statements to the effect that, well, look, we'd never approve data banking in everybody in the population.

Well, I think that's a more open question and something the work group is going to be talking about. But to the extent that one can say this is a problem where it's more likely that when you use this information with a person who is arrested for a minor offense, you will find useful information; that a member of the general public, it becomes much more palatable to judges.

If a defendant can argue that, look, you've picked on me, I was never convicted, you're still hanging on to my DNA. I'm like anybody in the general public, I'm like one of the judges on this court. That argument will carry more weight.

If the answer to that is, well, no, as a class, arrestees do pose more likelihood of being implicated, then the constitutional argument becomes stronger for the arrestee data banking.

COMMISSIONER DAVIS: To add a little note of levity to this, for many decades, we have fingerprinted dead bodies that come in routinely and we get the rap sheets and so forth. One I made a copy of that I use in my police lectures as the focus slide is Mr. Marcus, who was arrested in 1931. The charge on the rap sheet is, and I quote, "general principals."

CHAIRPERSON ABRAHAMSON: Dr. Adams.

COMMISSIONER ADAMS: I guess the only comment I would like to make is to ensure that everyone understands, CODIS has its name for a very important reason. It begins with convicted, and with the DNA Identification Act of '94, it did expressly give legislation that says the national system, as it stands, can only include convicted felons.

And even if Louisiana is to go about and collect from arrestees, they could not be inputted into the national system.

COMMISSIONER SMITH: But I take it you could run an arrestees' DNA against the case samples, right?

COMMISSIONER ADAMS: Not out of the national system.

COMMISSIONER SMITH: You could not? For comparison, we couldn't do that?

DIRECTOR ASPLEN: Can I not check my arrestees against the CODIS base and determine that this guy was just released, a minor offense?

COMMISSIONER BASHINSKI: Not on the national system, and you can't in our state, no. Some states you can, but not in our state. In fact, in our state, you cannot search a suspect -- we can't have a suspect file at all in California right now. We lost that capability.

MR. KAYE: Aren't there two different questions? One is, can you put the arrestee's file into the CODIS database? The answer to that is no. But can you run the crime scene database against the suspect under CODIS?

COMMISSIONER BASHINSKI: We can't.

MR. KAYE: And that could be an arrestee.

COMMISSIONER BASHINSKI: We can't.

MR. KAYE: You can't?

COMMISSIONER BASHINSKI: No, not against our state database. Only at the local level, which there are ways to do it, but state, we can't.

DIRECTOR ASPLEN: But not at the national level.

MR. KAYE: So the answer is that if a local authority said we have someone who is suspected of a crime, who has been arrested, and we have his DNA, could you run it against your crime scene database, samples from crime scenes that are in CODIS, the answer would be no.

DIRECTOR ASPLEN: David, why don't you jump in here?

MR. COFFMAN: Basically, first of all, the way CODIS is set up, let's get this clear first, you cannot send suspect samples or arrestee samples to national.

Let's go down one level. Now you're at the state level. Each state is going to be different, depending on the way their laws read. I know California, they cannot search suspects or even if they were doing arrestees, they couldn't do that at their state level.

In Florida, however, we have a Supreme Court decision at our state level that says we can have a suspect file at our state level. But that suspect file does not go any further.

So it really depends on the state. And to answer your question, in our state, if someone says we have an arrestee and we collected a -- they, for whatever reason, have a DNA sample, we could search the cases within our state, but that's where it stops.

CHAIRPERSON ABRAHAMSON: But if you had a DNA sample and it was coded, you cannot send it to CODIS and find out whether they've got a match?

MR. COFFMAN: Not the way the Federal rules are set up for CODIS.

COMMISSIONER BASHINSKI: Not unless the person is a convicted --

DIRECTOR ASPLEN: How about the DNA that was taken in Manhattan --

CHAIRPERSON ABRAHAMSON: Then how can you get ahead, so that you know who the guy is? I mean, that's the purpose of having the --

COMMISSIONER BASHINSKI: What you do is you search the evidence against the file. You have an unsolved case with no suspect at all. You search that, which isn't related to anybody, against a file of convicted offenders, and then you find out of that pool who may have been responsible.

CHAIRPERSON ABRAHAMSON: Then the answer to the second question is yes.

COMMISSIONER BASHINSKI: For example, I could search the profile. If I had a suspect that I had identified in an unsolved case, I could search the profile in that case against other unsolved cases, but I cannot take that individual's profile and put it in a database in California and search it against others.

CHAIRPERSON ABRAHAMSON: So that if you know that it's me, Abrahamson, I'm not arrested, but my DNA is at the crime scene. So if you know it's Abrahamson, you don't have to search it against anything, because you know who it is. But now you have my DNA. It's not identified.

Can I search it against CODIS?

COMMISSIONER BASHINSKI: Yes.

CHAIRPERSON ABRAHAMSON: Okay.

COMMISSIONER BASHINSKI: But the flip is not true. I can't put you in there to search against all these unsolved cases.

CHAIRPERSON ABRAHAMSON: I understand that, because I'm not convicted.

COMMISSIONER BASHINSKI: So the question I would have is let's say we were able to collect samples from arrestees and suspects in California to search against. Let's say we get a sample, because we have probable cause to believe this person is guilty of a particular case, and we determine that he's not. What's the constitutional status of taking that information, forget the statute in my state, and using that information to check other crimes? This person is an arrestee and there is no necessarily particular probable cause to think that he committed these other crimes.

MR. KAYE: So to make it even more concrete, suppose that you take the suspect's fingerprints on arrest and there is a database, NEFIS, would AFIS take the fingerprint and say we'll run it against it?

COMMISSIONER BASHINSKI: Sure.

MR. KAYE: And then the person is later not convicted. There's two things. One, I don't know of any cases specifically on that kind of a question or on the question of -- but I would think that the assumption remain -- well, with conviction, there is the argument that the conviction lowers the expectation of privacy. With arrest, I think, maybe you can make an argument. My guess is that like finger -- this is the question of retaining it as opposed to returning it, the identifying DNA information.

I guess it, too, turns on the outcome of this balancing test and I guess I'm a little concerned with the argument that this individual, having not been convicted, is now, for legal -- the argument would be -- this is what you would hear the ACLU say, and with some justification, the individual is really like anybody else in the public. You can't randomly pick somebody up and take their DNA and now we have someone not convicted of a crime and you want to hold on to the information indefinitely.

But, of course, you can do it for fingerprinting, the argument goes, so why can't you do it here, too.

COMMISSIONER BASHINSKI: Let me refine this a little more. I have a person that walks into the police station with a severed body part in his hand and he is implicated in four serial murders where he has dismembered people. It's probably going to be five years before that person is ever convicted of a crime that would allow me to put him in the data bank.

Would you say then that I should be able to use his sample to search other crimes that I have no other reason, other than they're just unidentified bodies, to find out if he might have been involved in those crimes?

MR. KAYE: That helps take this from the sort of overall statistical question that we're talking about of are people who were arrested sufficiently distinguishable from the population, to have a higher probability of successful hits, that we feel we can do that much of a minimal invasion of the privacy, to a graphic case where you might think you know this guy is much more likely to be implicated in some other horrible case, and then you might say, well, maybe the balance of interests clearly cuts in favor of the government. That's how I think about it.

COMMISSIONER BASHINSKI: That's a real case.

MR. KAYE: And then you're looking at -- so one is sort of the categorical exception for all arrestees and the other is that, well, maybe some subsets of cases, you -- I don't think the courts will actually go down that line and draw things quite that finely. I think it's likely that a simple rule that doesn't require police discretion of figuring out whom to arrest, whom to take DNA from and whom not, is in some ways perhaps preferable, and therefore, that might be where we'd end up.

But that's a good example which I think the report needs to deal with to put the question in focus of how strong is the government's interest.

CHAIRPERSON ABRAHAMSON: Chief Sanders has been very patient. So you have a question, and then we're going to cut it, but we can come up. Professor Kaye, will you be here tomorrow morning?

MR. KAYE: Yes.

CHAIRPERSON ABRAHAMSON: So write your questions down. We'll come back, or we'll come back at the end of the day, if there is time left, if that's all right, because I want to get to post-conviction issues before lunch. Chief Sanders.

COMMISSIONER SANDERS: Thank you. I'm not sure I've got a question, as much as I've got a frustration. I'm really confused about the benefit now of DNA testing on all arrestees if you can't compare it with any kind of database. With the cost of what it's going to do and this, that and the other, I'm really not sure why we'd even want to consider that.

I guess the second part of that is I thought that case in California, where they had the guy under arrest and they checked his DNA against the database, is suppose it would be able to work on a local level maybe or on the state level, but I thought that's what they did. They had the guy in custody, I can't remember his name, and then they found out that he killed those other four people and they related all these cases, while he was an arrestee. I didn't think it was a conviction.

Let me finish, or I'll forget what I was saying. I know we had a case in Chicago where the guy was arrested reference to a sexual assault, where, if you remember, where the eight, nine-year-old was charged with the brutal murder of the eleven-year-old girl and actually it turns out that the guy that was in custody, and he wasn't convicted, he was in custody, but I don't know where they took the DNA.

But I'm just saying, to me, I thought that's what this was all about, was to be able to -- maybe that's where the search and seizure will come in, because of the fact that if it's strictly for the purpose of identification, then it seems to me that -- I mean, fingerprints are the best way, and at least there we can run it in AFIS. I can arrest you and put your fingerprints in AFIS and if you're wanted somewhere else or you've committed some other crime, or if it's been collected, except for the argument that DNA evidence is easier to collect than fingerprint evidence.

I've been a policeman 30-something years and I think five cases that I've been personally involved in, if we got fingerprint evidence, that we could convict somebody on it. But the way you guys talk about this DNA stuff, I almost thought I was a detective again.

COMMISSIONER REINSTEIN: The DNA Act of '94 was very specific as to what files could be created at the national system or national level. Those files were unsolved cases and convicted offenders.

COMMISSIONER BASHINSKI: But every state is different.

CHAIRPERSON ABRAHAMSON: We'll come back to this. Maybe somebody can type that up, so we're all clear as to what can be matched against CODIS.

Okay. Thank you, Professor Kaye.

[Applause.]

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