0:00:00.8 Speaker 1: We'll hear argument next this morning in case 12-207 Maryland versus King.

[music]

0:00:11.9 Leon: Hey everyone. This is Leon from Prologue Projects. On this episode of 5-4, the hosts are discussing Maryland V King. In this 2013 case, a man was arrested for one crime, his DNA was collected, and then it led to a match for another crime. In his petition to the court, the man argued that running his DNA was an unconstitutional infringement of the Fourth Amendment prohibition against unreasonable searches. The court was unconvinced.

0:00:39.2 Speaker 3: The justices rule it's okay to take the DNA of people arrested who are not yet convicted of a crime. In a 5-4 narrow decision, the Supreme Court ruled that taking of an arrestee's DNA does not constitute an unreasonable search.

0:00:52.2 Leon: The argument from the court is that collecting DNA is part of the process of identifying an arrestee, even when that person has already been identified. This is 5-4, a podcast about how much the Supreme Court sucks.

0:01:10.5 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have canceled our civil liberties like a cowardly university canceling commencement. I am Peter, and I'm here with Michael.

0:01:21.1 Michael: Hey everybody.

0:01:21.8 Peter: Rhiannon, a little too busy freeing Palestine to be with us today. Actually, I think she's just sleepy, but that's part of the work, you know?

0:01:30.6 Michael: Yeah. You gotta recharge the batteries. [laughter]

0:01:35.6 Peter: Yeah. Who needs to do your job with your best friends when you can just be napping? All right. Cut that Rach, but then send it to Rhi.

[laughter]

0:01:46.9 Peter: All right. Today's case, Maryland v. King. This is a case from 2013 about the Fourth Amendment. The Fourth Amendment, of course, protects against unreasonable searches and seizures. Usually, these cases involve police searching someone's house or car or patting you down or something. But this case involves the seizure of your DNA, specifically through a cheek swab. Maryland has a law allowing for police to collect DNA samples from anyone arrested for a violent crime. Alonzo King was arrested for assault after being identified by a witness, had his cheek swabbed, and then the DNA was used to incriminate him in a case from a few years prior. He tried to suppress the use of the DNA evidence under the Fourth Amendment saying that the cheek swab was unconstitutional because it was essentially a search conducted with no suspicion. But the Supreme Court in a 5-4 decision written by Anthony Kennedy says, no, it's fine.

0:02:56.1 Michael: All good.

0:02:57.0 Peter: It's actually okay. Michael, you're our background guy for the day.

0:03:01.3 Michael: Yeah, that's right. No Rhiannon. I'm gonna keep it brief 'cause actually it's pretty straightforward. There's not a lot to understand here. So in 2008, as Peter said, Maryland passes a law allowing for the collection of DNA samples from arrestees of certain crimes of violence or burglary. This is one of many laws around the country allowing for such DNA collection, and it's actually one of the more stringent ones. The majority of states do not require it to be a crime of violence for example. In 2009, Alonzo King was arrested on suspicion of pointing a shotgun at a group of people.

0:03:44.1 Peter: Illegal.

0:03:45.5 Michael: Yep. That is menacing innocent bystanders. One of the people standing in the group ID'ed king as the assailant, and he was charged with first and second degree assault. At the time of his arrest, pursuant to the new Maryland law, in addition to his fingerprints and his photograph being taken, law enforcement took a cheek swab for DNA analysis. As per the law requirements, they held the sample until King was arraigned three days later. After that, it made its way to the state police forensic science division two weeks later, and was mailed to a private lab for testing two months after that. Another two months after that, four months after arrest, his DNA sample was sent to the FBI to be run in their CODIS database, where it was compared to DNA samples taken from unsolved crimes. In the meantime, King pled down to the second degree assault, not the first degree. He entered an Alford plea, which doesn't require an admission of guilt. But the FBI got a hit on his sample from an unsolved rape from 2003, which led to King's prosecution and conviction for that rape.

0:05:01.2 Michael: He challenged the collection and testing of the DNA sample as an unreasonable search under the Fourth Amendment. It made its way through the Maryland courts until we arrived here at the Supreme Court. Also, I wanted to add like a little warning. This case is sort of tangentially related to sexual violence, and we are gonna talk a little bit about that in our discussion section because obviously that's a serious thing in solving those crimes as a societal good that we don't take lightly. But that doesn't change the fact that this is a crap opinion.

0:05:35.7 Peter: So let's talk about the law a little bit here. The Fourth Amendment protects against unreasonable searches and seizures, and King's claim here is very simple. He says, all right, you arrest me on an assault charge. You take my DNA, then you run that DNA against a database of unsolved crimes, but you didn't have any reason to believe that I was guilty of any of those crimes. So this is what we call in the biz a suspicion-less search, which should be unconstitutional. Anthony Kennedy writes the majority here, and what he says is basically, look, the Fourth Amendment isn't about suspicion. It doesn't matter that there wasn't any suspicion. The Fourth Amendment is about reasonableness, and that means you weigh the need of the government against the invasion of privacy. It's a balancing test.

0:06:31.5 Peter: So he starts to do the balancing test analysis. He says, on one hand, the government needs "a safe and accurate way to process and identify the persons and possessions they must take into custody." He points out that police needs to know the criminal history and potential dangerousness of the arrestee that helps with bail determinations and so forth. He compares it to photographing and fingerprinting an arrested suspect, and like other searches that police conduct when someone is first arrested. Now, before we go on, it's very important to understand what he's doing here. Everyone on the court knows that it's generally illegal to search someone for evidence of a crime without any suspicion that they committed the crime. So what Kennedy is trying to do is say, well, the DNA search is not searching for evidence of a crime, it's just trying to identify the person that they've arrested. Now, there are a couple of things here that just don't really make much sense. First, I don't think that this fits the definition of identifying a person, right?

0:07:46.3 Michael: Not at all. Think back to that little timeline I gave you, where they didn't even send the sample to their forensics lab until after he was arraigned. So what, they're arraigning a guy they haven't identified yet? It's nonsense.

0:08:00.1 Peter: He's saying that like you get the DNA test back and then you know if they've committed another crime and then you know more information about them, and that's part of identifying them. But that's not what identifying means.

0:08:14.3 Michael: No, not at all.

0:08:14.6 Peter: You already have like their name and address, you have their fingerprints, right? All of that comes through the usual processing. The DNA test is not about identifying them, you already know their identity. It's about trying to connect them to some random unsolved crimes that you have no reason to suspect that they committed. So Kennedy says it's helpful for bail determinations and assessing dangerousness, but that's just not what Maryland is doing. Like you pointed out, they don't even send the sample off until the arraignment, which is like your initial hearing.

0:08:48.5 Michael: Where you get bail. [laughter]

0:08:50.1 Peter: Right.

0:08:53.4 Michael: For the listeners, like remember under Maryland law, they can't even release the sample to like state forensics until the hearing where bail is set. So Kennedy is saying this will be helpful for bail determinations makes no sense, unless he thinks this works like snapping your fingers.

0:09:13.1 Peter: It's physically impossible.

0:09:13.2 Michael: Yeah, it's impossible. It takes weeks to run DNA. It's nonsense.

0:09:16.9 Peter: Even if it took hours, it would be physically impossible.

0:09:20.2 Michael: Right. It'd have to be instantaneous. It'd have to be like they're doing it at the bail hearing and they like released it and it's like, boom, we got it. [laughter] It's so stupid.

0:09:30.9 Peter: And then on top of that, in this case, it took four months before the sample came back with a DNA match. So it's not being used for any of this shit, it's being used for one purpose and that's to implicitly accuse the suspect of totally unrelated crimes. That has nothing to do with identifying someone. And moreover, as the dissent points out, Maryland actually gives the reason that they conduct DNA testing in the law itself. And they specifically say that it's for investigating crimes. So Anthony Kennedy just ignores that, and then like makes up his own reason in order to make this law constitutional. Also, the comparison to mugshots and fingerprinting, I don't know what the fuck he's talking about. Like only some fucking 90-year-old dipshit could look at DNA testing and be like, oh, it's sort of like taking a picture when you think about it.

0:10:30.0 Michael: Yeah. It's taking a picture of your biology.

[laughter]

0:10:38.0 Peter: Kennedy is like, okay, well, we already compare mugshots to sketch artist depictions and we show mugshots to witnesses, which is true. The difference is that those are being used to investigate the crime that the person has been arrested for.

[laughter]

0:10:55.8 Michael: That's right.

0:10:56.6 Peter: It's not the same thing as running those photographs through like a database of like closed camera television or whatever the fuck. Same thing with fingerprinting. When cops take your fingerprint, they use it to check that you are who you say you are. They don't run it against a database of unidentified fingerprints from crime scenes. Or at least they didn't until this case. I don't know if cops are doing that now. So Kennedy is saying, well, DNA testing, it's useful to police for all of these reasons, but we still need to weigh it against the intrusion into the person's privacy. And he says that this is pretty minimal. It's a cheek swab. So it's not nothing but minor intrusion, I suppose. He also points out that people who are arrested under the law and past precedent have a diminished expectation of privacy generally, which is why like when you get arrested, you can expect to get patted down. They're gonna search your pockets, all that stuff. You have a diminished expectation of privacy.

0:11:58.3 Peter: So Kennedy then weighs these things against each other. It's like, hmm, which one's bigger? On one hand, the police have this need for the DNA. On the other hand, the test is not very intrusive, so this is fine. This is constitutional. We're good.

0:12:11.8 Michael: Yeah. UED.

0:12:13.2 Peter: So like overall, I think the majority here is getting away with a pretty aggressive sleight of hand, if you can even call it that. Like the Fourth Amendment generally means that the cops cannot conduct a search without suspicion of a crime. The majority gets around that by basically saying, well, that's not what's happening here. But that is what's happening here.

0:12:39.4 Michael: Absolutely.

0:12:40.7 Peter: Everyone knows it. Maryland law explicitly says it, but I guess five members of the court wish it wasn't true, so here we are, and that's it.

0:12:50.5 Michael: Yeah. Five members of the court are just like, well, this is good for policing and we like policing, and so we have to retroactively find a way to make this constitutional, that's it. So the dissent is authored by Antonin Scalia, he's joined by three liberals, Kagan, Sotomayor and Ginsburg.

0:13:14.0 Peter: RBG, yeah. The ladies.

0:13:16.1 Michael: This is a bad case that went the other way because our old friend Stephen Breyer joined the majority, state capacity liberal Stephen Breyer, law and order lib Stephen Breyer just loves himself the police. Fucking adult. That fucking adult.

0:13:31.7 Peter: And like, just so people know, Antonin Scalia has a libertarian streak. In the Fourth Amendment context, this is one of the main ways in which he distinguishes himself from Clarence Thomas, for example, who's just a police state fascist, right? Scalia is the type of guy who has always felt that this sort of thing is a little bit unseemly. And so you'll see him joining the libs from time to time on these cases, which would've been more impactful if it weren't for Breyer consistently switching sides.

0:14:01.5 Michael: Yep, yep, absolutely. So the dissent is pretty good because Scalia is usually pretty good when everybody else, he's riding with our libs, because one, that usually means he's right on the merits, and two, I think they sort of trim his sails in reigning a lot of his worst impulses. And he does a pretty good job of just dissecting the majority opinion and like really taking apart, especially I think the idea that this is important for identification. He meticulously goes through the timeline of the DNA sample, like transmission and working through bureaucracy and testing and all that to illustrate how absurd to think that this is being used for identification. The guy has already like been arraigned, agreed to pleas, demanded a jury trial, all sorts of stuff is happening while the DNA is being tested. It's clearly not being used for identification purposes because proceedings are going forward. The criminal proceedings are happening.

0:15:06.9 Michael: And he also makes the point that like the databases that these go into have names and like social security numbers and stuff attached to them. The key feature is that the sample is to someone who's been identified and then you're comparing it to unidentified samples. That's what's going on here. Like this isn't identification in any reasonable sense.

0:15:31.4 Peter: But I guess what Kennedy is trying to say...

0:15:33.9 Michael: Isn't everything identification?

0:15:36.2 Peter: Yeah. Right. Part of identification is just learning more about this person.

[laughter]

0:15:41.9 Michael: Yeah, right. The thing about that is as they say, it proves too much, right? Like you could also learn more about someone by just searching their house and going through all their shit and opening their email and reading all their old email. Like, yeah, you'd learn more about them and you might get a better idea of how dangerous they are. But that shit requires a warrant. It requires probable cause and suspicion. And Scalia's very good on these points. He even has like handy little charts. It's a dissent with charts, comparing DNA samples to fingerprints to illustrate how different the two are. And there was like a quote at the end, there's a little paragraph at the end that I thought is worth reading. He says, today's judgment will, to be sure, have the beneficial effect of solving more crimes. Then again, so would the taking of DNA samples from anyone who flies on an airplane, surely the TSA needs to know the "identity" of the flying public, applies for a driver's license or attends a public school. Perhaps, the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would've been so eager to open their mouths for royal inspection.

0:16:54.9 Michael: It's pretty good. He grounds it all also in like historical, like the founders really didn't like general warrants and that stuff's correct. And the idea of just running someone's DNA in a database against every DNA sample from any unsolved crime around the country definitely feels like a general warrant. That feels appropriate, but I just don't care too much.

0:17:14.0 Peter: Yeah, me neither. Although, so people know, a general warrant was basically this old timey concept where, rather than a specific warrant where like you need to be like, judge, I want a warrant to go into that house to investigate this crime, you could get a more general warrant. Judge, I want the authority to investigate this crime or that crime. And then you could just do whatever with that warrant, right?

0:17:40.6 Michael: Right. That's sort of like why the Fourth Amendment is written the way it is, where there is a specified warrant requirement that requires probable cause and all that stuff. Because they were concerned about these specific types of warrants and this specific type of policing.

0:17:57.2 Peter: Right. I also wanna point out when this oral argument started, the Maryland lawyers thought it would be a smart idea to start off by talking about how effective this has been, this practice, and like how many crimes they have solved using this practice. And he was immediately cut off by Scalia who was like, well, yeah, if you conducted a ton of unreasonable searches and seizures, I bet your clearance rates would go up.

0:18:26.6 Michael: Yeah. Yeah.

0:18:27.6 Peter: So just right off the bat, just owned at oral argument with like the most obvious sort of logic, which by the way, hasn't stopped people from making these arguments like, well, this is a great way to solve crime. It's like, no shit, dude.

[laughter]

0:18:40.6 Michael: Yeah, exactly.

0:18:41.6 Peter: No shit. Like no one doubts that violating people's rights is an effective way to solve certain crimes in certain regards. The point is that we have those rights anyway. The point is that the violation of those rights is itself not legal. We don't wanna be dismissive of the severity of the crime alleged here. Right? This is a sexual assault case. This is a serious case. I think like the broad point is that if you allow the government to just conduct unlimited searches without warrants of your person, of your property, et cetera, they will from time to time turn up a heinous crime. That does not justify the vast intrusion upon our civil liberties. And if it did, there would be no Fourth Amendment. You would not have civil liberties. It would give the police license to do whatever the fuck they want, because sometimes they find a horrible crime.

0:19:39.5 Michael: Right. And this sort of DNA testing is particularly useful for sexual assault and murders as well. But I think that's where it's sort of in the public consciousness understood as a particularly socially valuable thing. And so I just wanna note, like the cops suck at solving crimes, like the data is very clear on this. And if you've ever interacted with them, they often do not seem to care about solving crimes. And if there's one crime they don't take seriously at all writ large, it's sexual violence. This is a policy solution that's downstream of the bigger problem. The bigger problem is cops not taking solving crime seriously, and not taking sexual violence seriously. And then wanting to just violate everybody's civil rights to make their job easier. Oh hey, well, we can just leave these rape kits on the shelf and not worry about them, and maybe in a few years we'll get a hit and we get to clear a case. It's not good for anyone, this approach.

0:20:45.4 Peter: Right. And if you want cops to solve sexual assault cases, the solution is not random DNA tests of people who get arrested in Maryland or whatever. The solution is maybe starting to clear those rape kit backlogs that they don't give a shit about. The solution is taking survivors who come in and try to report sexual assault seriously, which they don't do. Cops truly don't give a fuck about this stuff. So I sort of bristle a little bit at the implication that they're just trying to solve crimes here. No, they're not. There are some subtle ways that this majority opinion is very disingenuous to the point where like it reads almost like bad faith. We already pointed out that Kennedy uses this bastardized definition of identifying someone and that he completely ignores the express purpose of the Maryland law. But there's also some other weird little jurisprudential nerd bullshit going on here. When you're arrested, the police can legally search you for weapons, et cetera. That is called a search incident to arrest. But the thing is that there's already a Supreme Court case saying that searches incident to arrest are limited to searches for weapons and evidence related to the crime. So Kennedy can't just say, well, this is a search incident to arrest because the DNA test is a search for evidence related to other crimes, not this crime.

0:22:16.0 Peter: So there's also a doctrine called special need which basically says you can conduct searches even without suspicion of a crime if there's a special need to do so. That's very case by case, but the quintessential example is drunk driving checkpoints. They pull you over without suspicion just to make sure you're not drunk. But Kennedy admits that this doctrine doesn't apply to the cheek swabs either. So it's not a search incident to arrest, it's not a special need. What exactly is it? Why is this legal? Kennedy never really explains this. He never really clearly states the doctrine that he's basing his decision on.

0:22:55.4 Michael: Right. And Scalia mentions like a third sort of category of suspicion-less searches that they have given the okay to. And those are specifically when the searches are not related to solving crime in police enforcement. For example, drug testing public school teachers or railroad workers for regulatory reasons because we're concerned about safety on the railroads or the bus drivers, shit like that. But this is not searching for evidence of crime, which is the exact opposite of what's happening here, [laughter] which is very explicitly and specifically searching for evidence of criminal activity.

0:23:38.0 Peter: Right. So the fact that Kennedy sort of almost deftly dodges around all this shit makes it very obvious that he sort of knows what he's doing. It's not just a sloppy opinion or something where you're like, what's the doctrine here? He's very carefully refusing to admit exactly what like the doctrine that he's supposedly applying is, or like what the rule is even. And I don't know, I think that shows like an intentionality that I didn't entirely pick up on when I first read it. But then once you sort of dig a little deeper, do some research into the cases, you're like, well, he obviously knew what he was doing here. He knew that he was fucking around a little bit, that he was just sort of making this rule like just so, so that he could say this was constitutional, even though under like every known analysis, it's clearly unconstitutional.

0:24:32.4 Michael: Right. That's right. I think you can tell that this is very intentional when you think about like the bigger context here of DNA swabs. Like I mentioned up top, Maryland laws actually was one of the more protective, that was limited to violent crimes. And King took a guilty plea here, and he didn't admit culpability, but he did plead guilty to assault. So there were a lot of off-ramps for the court here to rule narrowly that only in some circumstances DNA is appropriate, like for arrest for violent crimes or after somebody has pled guilty. And so this was sort of like an inevitable discovery sort of thing in the Fourth Amendment context. Instead, this is like explicitly written to make sure that all these other laws, these much broader laws are constitutional too. They've got their eye on California and all the other states that are swabbing everyone they arrest and saying, yeah, we don't even want to hear challenges about that.

0:25:39.1 Michael: So it's pretty obviously disingenuously written. And I think another hint that this is disingenuous is Kennedy loves to talk about dignity, personal dignity, and it's a big feature of his jurisprudence actually. And in this, he just sort of shrugs it off as like, well look, this isn't any more undignified than like the normal indignity of arrest essentially. And I'm like, [laughter] I don't know man, like someone sticking something in your mouth or up your nose or drawing your blood does actually seem a little more of an imposition on dignity. Not to mention that like, yeah, okay, maybe clipping someone's nails and hair isn't that undignified and maybe a cheek swab isn't that much of an impingement on your personal dignity, just one vial of blood and on and on. But you add all that up, [laughter] and all of a sudden it's a big impingement on your dignity. You're being poked and prodded and treated like a fucking lab rat.

0:26:42.0 Peter: One thing I hate about these cases is that they're always like, well, it's just a little cheek swab or whatever, but that's not the full extent of the indignity. Part of the indignity is that they're taking that DNA and implicitly accusing you of potentially having committed another crime with no reason to believe that you did. That's the indignity. It's the fact that they are being like, we arrested you for something, so maybe you committed other crimes and we're gonna go find out even though we have no reason to believe that. That's part of the indignity and that's part of the violation of your privacy. But the court never fucking talks about it like that. I don't really know why the court sort of refuses to accept that that is in fact a bad thing, [laughter] that it is a bad thing to just implicitly be like, well, you might have committed a crime.

0:27:32.1 Michael: Yeah. Like the underlying logic of this is anybody who's arrested, anybody who's arrested for this law, anybody who's arrested for a violent crime, but for other laws like California's [0:27:44.4] ____, it's just literally anybody who's arrested is automatically suspect for legitimately any crime for which they have a DNA sample on file, across the country. Legitimate. That's it. Like you've been arrested for any reason, we believe we have good reason to think you committed some other crimes here or elsewhere in the past. That's the logic behind this. And yeah, that is actually quite a hit on someone's dignity, especially when you know how easily some populations get arrested. I mean, if the standard for you can have your DNA taken and put into a database where it will rest forever and be checked against any crime that ever has or ever will have DNA collected from it, the standard for that is just you've been arrested, that's a pretty low standard because it's very easy to get arrested. Like that's not a, it's not a hard thing.

0:28:41.4 Peter: Yeah. We arrested for protesting and Michael for serial assault or whatever.

[laughter]

0:28:45.2 Michael: For carrying a beer in public and for disorderly conduct at a homecoming bonfire [laughter] where I ran up and I touched the bonfire, I slapped the bonfire. [laughter] Two out of three hosts of the podcast have been arrested and our total arrests average up to one arrest per host.

[laughter]

0:29:05.0 Peter: So Scalia talks about the violation of like the body in a way that I don't quite vibe with. Like I, you know, when we were prepping, I think I mentioned it feels like almost a little bit religious. I don't quite view it like that, but I do think it makes sense to draw a bit of a line. Putting a Q-tip into your mouth or whatever, I sort of agree, not a huge deal, but there is a real risk of slippery slope here. Like, what's a little blood draw? What's a slightly bigger blood draw? What's being strip searched? All of these things are sort of violations of your physical person and I don't think we should just let them fly under the radar so readily as if they are nothing. I think it's important to draw a firm line and someone saying, hey, I don't think the cops should be able to place something into your body, I don't think that's a crazy line to draw.

0:30:03.8 Michael: And, you know, the Fourth Amendment offers good guidance here. The right of the people to be secure in their persons, first in line before houses, papers, and effects, against unreasonable searches and seizures shall not be violated. Like yeah, right there. Why not? That's as good a place as any to draw the line. They can't just treat you like a little lab rat. And I do think a lot of this is technology sort of obscuring what's happening here. If a cop had to take a little printout of your DNA genetic markers and compare it visually to other DNA samples and go down to the evidence locker and specifically request cases to look at one-on-one to compare them, I think it would be very quickly apparent and obviously salient what was happening here. Which is they were saying, oh, we think this person might have been involved in this other crime. But because this is all done digitally in a database where we just input the sample and then press a button and say, CODIS, are there any hits? And then CODIS says yes or no, that makes it seem like what's happening here is a small intrusion and not a big deal. But that's not it at all. Like what's happening here is technology has streamlined that process of visual comparison of your genetic material, your genome. But just 'cause it's streamlined doesn't mean it's any different from someone going through their evidence locker and visually comparing them one at a time.

0:31:41.6 Peter: No, I mean, the implication here is that if you are arrested, cops can take your DNA sample and just one by one compare it to the DNA samples in tens of thousands of other cases. I think you're right that if that process involved like, I don't know, five minutes of work each.

0:32:02.3 Michael: Yeah. [laughter]

0:32:04.2 Peter: I mean, yes, it would be impossible. But would a court really approve of that? Of like the police department making all of those comparisons? No, I think they would see it for what it was. And yeah, I think that technology just sort of obscures how much of a violation this actually is and obscures the obvious intent of the cops here, which is clearly not to identify this guy, it's to see if he committed other crimes.

0:32:32.8 Michael: Right. The key feature of this is that they've already identified him and now they want to use that identification to see if it matches up with like evidence from other crimes.

0:32:41.7 Peter: Yeah. I mean, it's so easy to talk yourself in circles with this case, but like the bottom line for me is the Fourth Amendment says that you cannot conduct an unreasonable search. What's more unreasonable than a search that you have no evidence for? Like they don't have any reason to believe that this man committed any of those other crimes and yet they are running his DNA to see if he committed them. That's gotta be a fucking violation of the Fourth Amendment. If that's not... How could that be a reasonable search? What is your reason for doing it other than the fact that you might just get a random hit every now and then. That has to be the crux of the Fourth Amendment. But here we are acting like that doesn't even fucking matter. Anthony Kennedy basically being like, yeah, suspicion, that's not really part of the Fourth Amendment.

[laughter]

0:33:34.5 Peter: Yes it is, dude, it's gotta be the whole fucking thing.

0:33:39.1 Michael: Yeah. Just like the very premise that like, no, it's reasonableness and suspicion of a crime doesn't play a role at all in the reasonableness determination. Taking that logic to the extreme is like, yeah, well, we could just, as long as it's minimally intrusive, we could just take everybody's DNA.

0:34:00.4 Peter: Yeah. Why not?

0:34:01.1 Michael: Why not?

0:34:01.2 Peter: I mean, we're talking about technological advances. Kennedy is saying you don't need suspicion to conduct a search as a general matter. Instead it's all about balancing the government's interests with the invasion of privacy. So you could imagine a theoretical invasion of privacy that's small enough that anyone could be searched. Like, so let's imagine that there's a machine one day that can analyze the DNA of someone just by looking at them. You point it at them and it has their DNA, no cheek swab, nothing, takes your DNA and then runs it across a database. Under Kennedy's rubric, that's fine. And you could just blast that machine at everyone. You could just be running that against random crowds of people because there's no invasion of privacy. So it's reasonable. Totally fine. I mean, that can't fucking be what the test is.

0:34:53.1 Michael: No.

0:34:54.3 Peter: I don't think that that's what any actual sane person thinks the Fourth Amendment allows. You need to have some fucking suspicion of a crime. It's like the most obvious fundamental feature of the Fourth Amendment. It drives me fucking insane even having to talk about this.

0:35:11.0 Michael: If the Fourth Amendment doesn't prevent the sort of establishment of a genetic police state essentially, then it doesn't do anything at all. Like if it doesn't prevent this sort of massive database in generalized searching, then it doesn't do anything at all. I don't even know how to say it any more than that. Like it's...

0:35:31.8 Peter: Right. At one point the majority is like, FYI, like this would not apply to like invasive surgeries. And Scalia is like, well, like the fact that you even had to clarify that.

0:35:45.5 Michael: Right. Is more damning than anything I can write. Yeah.

0:35:48.1 Peter: Right. And it's true because when you remove suspicion from the equation, all of a sudden if the government need to do something or the utility to the government of doing something is large enough, they can infringe on your privacy very freely. And I don't think that any person thinks that that's how the police should work. That like, well, if it's really useful for us, then yeah, we can violate your rights. No, that's not... That's like the opposite of what the Fourth Amendment should mean.

0:36:19.0 Michael: This case fucking sucks, man.

0:36:21.0 Peter: Dude, this case blows ass.

0:36:23.7 Michael: Fucking Breyer, man. Fucking Breyer.

0:36:26.9 Peter: What a fucking loser. You know, he gets sucked in by a balancing test.

0:36:29.1 Michael: Yeah. He sees a balancing test and gets very, very erect. [laughter]

0:36:33.7 Peter: Ooh, I like that. Like Clarence Thomas literally does not give a shit about the Fourth Amendment. So this makes sense. He's like, whatever is best for the cops. Like the Maryland's lawyer gets up there and Thomas is saluting. And Alito, whatever. Same basic deal. But Breyer, come on man. You got... What the fucking do you think the Fourth Amendment is? What do you think it is? Like I understand these pseudo fascist justices don't give a shit, but if you are even remotely liberal minded, I don't know how you let this slip past you.

0:37:08.6 Michael: Yeah. It's 2013 too at this point. We've had a decade of war and terror. How do you not know at that point about like the dangers of like indulging the government surveillance whims? Like how fucking up your own ass do you have to be, and I guess so far up your own ass that like in 2023 or whatever, you have to be like, wait, there are still habeas cases for Gitmo? [laughter]

0:37:32.3 Peter: Right, right.

0:37:35.7 Michael: Like, or whatever it was.

0:37:36.4 Peter: There's an element in the majority, and maybe I'm inferring too much, but there's an element in the majority of being like, this is the miracle of technology.

[laughter]

0:37:47.9 Michael: Yeah. Yeah. It's making it so much safer. This is great.

0:37:51.1 Peter: Right. Like what a cool opportunity. It's like, have you ever fucking watched a science fiction movie?

0:37:56.3 Michael: I was gonna say, these are people who have never, Breyer at the very least, have never actually absorbed and understood the moral of like any work of speculative fiction at all. Like at all.

[laughter]

0:38:11.9 Peter: Kennedy and Breyer are watching like I Robot or whatever and definitely not reading it. So I'm using watching very specifically [laughter], but they're watching I Robot and they're like, next time we gotta program the robots better.

[laughter]

0:38:29.0 Peter: That's the lesson.

0:38:29.5 Michael: Breyer's like, big brothers are nice. I love my brother. [laughter] They take care of you. They watch out for you. They protect you from the bullies. [laughter] I love big brothers.

[laughter]

0:38:41.8 Peter: God, what a bunch of fucking schmucks. This is such a good example of how fucking run down the Fourth Amendment is, where like this case doesn't get that much attention outside of academic circles. But the idea that the Supreme Court could just hand down a ruling being like, yeah, you don't need any suspicion to support a Fourth Amendment search.

0:39:05.8 Michael: To just check your DNA against tens of thousands if not millions of samples across the country.

0:39:12.3 Peter: God. Kennedy, what a fucking loser.

[laughter]

0:39:13.9 Peter: Alright. Well, unfortunately we couldn't have Rhi on to explain to us whether she would've appreciated or hated a cheek swab or what when she was arrested, she did tell us however that she was not swabbed.

0:39:28.9 Michael: Yeah. She said they were too overwhelmed by the volume of arrests.

0:39:33.4 Peter: Which is good.

[music]

0:39:38.5 Peter: Alright. Next week, Arizona v Navajo Nation case from not too long ago about water rights for native tribes. We'll do that of course, unless Donald Trump gets convicted, in which case maybe we'll do that instead.

0:39:56.3 Michael: A big everything you need to know about Donald Trump being a felon.

[laughter]

0:40:01.4 Peter: Yeah. And then of course, as always, if Donald Trump passes away of natural causes, we will do a special episode on that too.

0:40:09.5 Michael: Correct.

[laughter]

0:40:11.6 Peter: And, oh yeah, if you wanna see 5-4 live this summer, we will be at the Hamilton in DC on July 12th. Tickets for that will be live in the next couple of days. And we will be at The Bell House in Brooklyn on July 15th. Tickets are available now. Follow us on social media @fivefourpod. Subscribe to our patreon, patreon.com/fivefourpod for access to premium episodes, special events, access to our Slack, all sorts of shit. We'll see you next week.

0:40:48.8 Michael: Bye everybody.

0:40:50.7 Michael: 5-4 is presented by Prologue Projects. Rachel Ward is our producer, Leon Neyfakh and Andrew Parsons provide editorial support. And our researcher is Jonathan DeBruin. Peter Murphy designed our website fivefourpod.com. Our artwork is by Teddy Blanks @chipsny, and our theme song is by Spatial Relations.

0:41:22.9 Michael: I'm just imagining the bail hearings turning into like Jerry Springer, like, oh, we're running the DNA, [laughter] did we get a match? Did we get a match?

0:41:33.1 Peter: Right.

0:41:34.5 Speaker 6: You are not the perp.

[laughter]

0:41:39.1 Michael: Sorry. I'm sorry. I just have the, now I have this image in...

0:41:41.2 Peter: Like a wheel of crime?

[laughter]

0:41:44.8 Michael: It's linear.

[laughter]