Monday, June 03, 2013

Who'd'a Thunk It?

Justices Ginsburg, Sotomayor, and Kagan agree with Scalia, and I agree with them!  The four of them dissented from the majority in a case that now allows police departments to swab arrested individuals for DNA samples.

If police can fingerprint, why can't they take DNA samples?  There are many good comments at the link above, including:
I know where you're going, a database of who and what everybody is.

Plus once your DNA is in a database it can be accessed for other databases such as insurance research etc.

It should not allow a police officer to poke around someone's DNA looking for medically relevant markers ( is this person prone to breast cancer? ) or racial ancestry ( is this person really 1/32 native american? ), just to give a couple examples of what should not be allowed.
If merely arresting a person requires a DNA record creation, then there is no 4th Amendment. Why not wait until the conviction, if any?

The National Health Service currently being called Medicare and Medicaide has the DNA test results available. I suspect it is already secretly in the database at Homeland Security.

I think the court makes the distinction that the fingerprints are being taken to identify this guy who says he's Sparticus, from the ten other Sparticus's in custody.

The DNA swab isn't easy enough to use in routine administration of the cell block, but is very useful in cold cases that have no connection to the current crime. and for which the police can make an investigatory guess, absent the swab they don't have yet. DNA allows bootstrapping...
Make DNA testing mandatory for child support and see how fast the court reconsiders this ruling. Especially if the mothers could be sued for fraud and the on going support cancelled.

Fingerprints contain information only about the tips of your fingers. DNA contains information about your health, who your relatives are, etc. That goes far beyond establishing the fact of who you are.
And my personal favorite:
My concern is that with this ability to capture DNA upon arrest, we will have people arrested just so they can get their DNA. If I suspect Joe is guilty of rape, then I can arrest him for some driving violation and get his DNA to see if he is the rapist. 
I am absolutely a "law and order" kinda guy.  The first law, though, is the Constitution, and I can find nothing wrong with Scalia's 4th Amendment reasoning or with the concerns quoted above.

Update, 6-4-13:  Senator Cruz agrees:
“Today’s unfortunate U.S. Supreme Court ruling in Maryland v. King, by a vote of 5-4, expands government power, invades our liberty, and undermines our constitutional rights,” Cruz said in a Monday evening statement. “The Court held that the police can forcibly take DNA samples from people who have been arrested — but have not been tried or convicted — of a serious offense. So now the government can capture, without a search warrant, the most personal information about an individual, and use it to search vast databases for unrelated offenses.”


MikeAT said...


I must respectfully dissent here with respect to the judgement of Justice Scalia and you, both men who's intellect I hold in highest regard. The fact I'm agreeing with Justice Breyer does make me question my sanity and wonder about possible intellectual retardation, but so be it. Some 12 year single malt may be required.

First, the facts of the case from the ruling:


After his 2009 arrest on first- and second-degree assault charges, respondent King was processed through a Wicomico County, Maryland, facility, where booking personnel used a cheek swab to take a DNA sample pursuant to the Maryland DNA Collection Act (Act). The swab was matched to an unsolved 2003 rape, and King was charged with that crime. He moved to suppress the DNA match, arguing that the Act violated the Fourth Amendment, but the Circuit Court Judge found the law constitutional. King was convicted of rape. The Maryland Court of Appeals set aside the conviction, finding unconstitutional the portions of the Act authorizing DNA collection from felony arrestees.
Held: When officers make an arrest supported by probable cause to hold for a serious offense and bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.

Now extracts from Scalia:

“The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment. Whenever this Court has allowed a suspicionless search, it has insisted upon a justifying motive apart from the investigation of crime. It is obvious that no such … motive exists in this case.”

Scalia’s dissent went back to the adoption of the Constitution, noting that the Framers objected to the British use of “general warrants,” authorizing arrest or detention not focused on a particular alleged crime. He considered it a critical limitation that whenever the Court has upheld searches without suspicion, that it was never looking for general evidence of other crimes.

Scalia specifically noted that the DNA test results are not put into the matching system for a couple days. Thus, he reasoned, it has nothing to do with properly identifying the person in custody, and is instead a wide-ranging investigation for previous crimes...

Part 1 of 2

MikeAT said...

...Scalia concludes:

“The Court disguises the vast (and scary) scope of its holding by promising a limitation it cannot deliver… Make no mistake about it: As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason…. 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… But I doubt the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.”

One, this is not a “suspicion less search” nor a “general warrant”. The suspect is arrested based on probably cause and it’s not for a misdemeanor, but for a felony. Like with fingerprints, checking this suspect from other cases is reasonable.

Two, in his conclusion, Scalia has raised multiple serious issues about the security of DNA data after it is collected. Very serious points. However the question for the court is not this, but is the collection of the DNA it “reasonable” under the 4th Amendment. Now the collection is required only for felony arrest which are generally handled differently than misdemeanors. In my county, a misdemeanor suspect must be arraigned within 24 hours of arrest. With felony arrest we have 48. And the collection will take less time than a fingerprint (although the database checking, as of now, will take longer. That will likely change.). And unlike blood it does not require piercing the skin (a search that does require a warrant).

Sorry, but this isn’t beyond the restriction on unreasonable searches.

PS: Just sent you something I think you will enjoy for your summer!

Part 2 of 2

Darren said...

DNA is much more than a picture or a fingerprint. The latter two can identify you, DNA evidence is much less individually identifiable.

This will lead to fishing expeditions for sure.

I understand giving up rights once you've been convicted, but *not* merely for being arrested.

maxutils said...

I agree. Fingerprints are enough to identify you...taking a DNA swab is at best redundant, and more likely an opportunity to search for evidence against you for a crime the government has no reason to believe you committed. Scalia was really pissed of on this one, and it both reminds me of how smart he is, and also how much it frustrates me I don't agree with him more. As a side note? I think this is the second time in history that Clarence Thomas hasn't voted the same as Scalia.