Justice Anthony Kennedy seems to be carving out his place as the Supreme Court justice who doesn’t “get” identity. Maryland v. King was the case issued today that shows that.
His opener was the 2004 decision in Hiibel v. Sixth Judicial District Court of Nevada, which ratified laws requiring people to disclose their names to police officers on request.
In that case, Deputy Lee Dove of the Humboldt County (NV) Sheriff’s Department had received a report that a man had slugged a woman. He didn’t know the names of the alleged perpetrator or the victim, but Dove found Larry Hiibel standing next to his truck at the side of the road talking to his seventeen‐year‐old daughter seated inside. Dove didn’t check to see if they were having a dispute, or if anyone had hit anyone. He just started demanding Hiibel’s ID.
“Knowledge of identity may inform an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder,” Justice Kennedy wrote, approving Hiibel’s arrest for refusing to show his papers:
On the other hand, knowing identity may help clear a suspect and allow the police to concentrate their efforts elsewhere. Identity may prove particularly important in [certain cases, such as] where the police are investigating what appears to be a domestic assault. Officers called to investigate domestic disputes need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.
Even if he had gotten Larry Hiibel’s ID, that wouldn’t have told Dove any of these things. Dove would have had to stop his battery investigation to investigate Hiibel’s background, which he didn’t do until after he had arrested Hiibel – and after his partner had thrown Hiibel’s distraught daughter to the ground. (There’s your battery.)
In Maryland v. King, Justice Kennedy did it again. He wrote the decision approving DNA identification of arrestees. Like demanding Hiibel’s ID, which had no relation to investigating battery, Maryland’s practice of collecting DNA has no relation to investigating or proving the crime for which King was arrested, and it does nothing to administer his confinement. This Justice Scalia made clear in a scathing dissent.
The Court alludes at several points to the fact that King was an arrestee, and arrestees may be validly searched incident to their arrest. But the Court does not really rest on this principle, and for good reason: The objects of a search incident to arrest must be either (1) weapons or evidence that might easily be destroyed, or (2) evidence relevant to the crime of arrest. Neither is the object of the search at issue here. (citations omitted)
Justice Kennedy appears to think there are certain behaviors around detention and arrest that law enforcement is allowed without regard to the detention or arrest. Here, he has sanctioned the gathering of DNA from arrested people, supposedly presumed innocent until proven guilty, to investigate the possibility of their connection to other, unknown crimes. His logic would allow searching the cell phone of a person arrested for public drunkenness to see if they have participated in an extortion plot.
There is plenty of time to run DNA identification data past cold case files after conviction, and all parties agree that’s what would have happened in King’s case. Given that, the Supreme Court has upheld DNA‐based investigation of innocent people for their connections to cold cases because they happen to have been arrested. That’s the strange result of Maryland v. King.