A Cheeky Decision from SCOTUS

Hmmm:

The U.S. Supreme Court ruled today that police don’t need a search warrant before they open your mouth and take a swab of DNA.

The Supreme Court ruled in a 5-4 decision that DNA swabs are a “legitimate police booking procedure” that is allowed under the Constitution just like fingerprinting and mugshots.
The court’s swing voter Justice Anthony Kennedy wrote the majority opinion, which said DNA identification has become an important tool to help police identify suspects.

Supposed fascist Scalia actually sided with the liberal court on this one, pointing out — correctly in my view — that the state’s argument that they are using DNA primarily to identify people (and only investigating past crimes by coincidence) is absurd.

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 noninvestigative motive exists in this case. The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous. And the Court’s comparison of Maryland’s DNA searches to other techniques, such as fingerprinting, can seem apt only to those who know no more than today’s opinion has chosen to tell them about how those DNA searches actually work

Of course, any DNA taken is going to be used to solve crimes. That’s precisely what they did in the case of Alonzo King, who was convicted of a six-year-past rape because of a DNA match drawn when he was brought in for an unrelated crime. While I’m a bit mixed on whether DNA swabs should be allowed, the Court’s reasoning, which compares fingerprinting to jabbing a swab in someone’s mouth and running it against a crime database, seems as odd to me as it does to Scalia.

(You should also read this article about the statistical problems in blind DNA database searches. If your are matching the DNA of someone you already suspect of a crime, those one in a million stats mean something. However, the DNA databases are so massive that, for a blind search, the chance of finding a bogus match for someone’s DNA on any crime is much much higher. If you have 300,000 crimes in your database, the chance of a one in a million match to something is actually one in three.)

I’ll post more commentary as it comes in.

Comments are closed.

  1. Xetrov

    Here’s the Ruling.

    I’ve got some mixed feelings/thoughts on this.

    At first thought, I was thinking hell no, the “conservative” side of the court has their heads up their asses. But the more I think about it…

    If someone is arrested for a serious crime, they are fingerprinted immediately. If their fingerprints correlate with another crime, they are investigated for that other crime. So what is really the difference for a DNA swab?

    That being said, I’m not sure where I am on the grey area of what constitutes a serious crime. A drunk is fingerprinted when they are booked…I’m not sure I support him getting DNA swabbed. But then I try to take the fingerprint analogy into consideration, and if a drunk who’s fingerprints correlate to another crime…am I really against those fingerprints being used against him? I’d probably say no.

    It’s written into the law that was ruled on that if the person is not convicted for anything, the DNA evidence has to be destroyed/removed from the database. Whether or not it gets removed from the database is a separate matter of discussion, but the law states it should be, and that’s what the SCOTUS ruled on. If they were just collecting DNA samples from arrestees who were never convicted, I’d have a big problem with that…

    So…mixed feelings for now. Need to think more on it.

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  2. Thrill

    If someone is arrested for a serious crime, they are fingerprinted immediately. If their fingerprints correlate with another crime, they are investigated for that other crime. So what is really the difference for a DNA swab?

    That’s where I was intitially going as well. Mostly because a body cavity search is far more intrusive than taking a swab of saliva. Kennedy even noted that jailers are permitted to do very “intrusive searches” like that without a warrant. Why wouldn’t a relatively non-invasive procedure like this be permitted?

    HOWEVER, Scalia makes great points in the dissent (Thanks, Xetrov…I’m skimming now). This is one of the highlights:

    More devastating still for the Court’s “identification” theory, the statute does enumerate two instances in which a DNA sample may be tested for the purpose of identification: “to help identify human remains,” §2–505(a)(3) (emphasis added), and “to help identify missing individuals,” §2–505(a)(4) (emphasis added). No mention of identifying arrestees. Inclusio unius est exclusio alterius. And note again that Maryland forbids using DNA records “for any purposes other than those specified”—it is actually a crimeto do so. §2–505(b)(2).

    He goes on to trash the majority’s analogies:

    Is not taking DNA samples the same, asks the Court, astaking a person’s photograph? No—because that is not a Fourth Amendment search at all. It does not involve a physical intrusion onto the person, see Florida v. Jardines, 569 U. S. 1, ___ (2013) (slip op., at 3), and we have never held that merely taking a person’s photograph invades any recognized “expectation of privacy,”

    But is not the practice of DNA searches, the Court asks,the same as taking “Bertillon” measurements—noting an arrestee’s height, shoe size, and so on, on the back of a photograph? No, because that system was not, in the ordinary case, used to solve unsolved crimes. It is possible, I suppose, to imagine situations in which such measurements might be useful to generate leads. (If witnesses described a very tall burglar, all the “tall man” cards could then be pulled.) But the obvious primary purpose of such measurements, as the Court’s description of them makes clear, was to verify that, for example, the person arrested today is the same person that was arrested a year ago. Which is to say, Bertillon measurements were actually used as a system of identification, and drew their primary usefulness from that task.

    It is on the fingerprinting of arrestees, however, that the Court relies most heavily. Ante, at 20–23. The Court does not actually say whether it believes that taking a person’s fingerprints is a Fourth Amendment search, and our cases provide no ready answer to that question. Even assuming so, however, law enforcement’s post-arrest use of fingerprints could not be more different from its post-arrest use of DNA. Fingerprints of arrestees are taken primarily to identify them (though that process sometimes solves crimes); the DNA of arrestees is taken to solve crimes (and nothing else).

    Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches. The Fourth Amendment must prevail.

    The most regrettable aspect of the suspicionless search that occurred here is that it proved to be quite unnecessary. All parties concede that it would have been entirely permissible, as far as the Fourth Amendment is concerned, for Maryland to take a sample of King’s DNA as aconsequence of his conviction for second-degree assault. So the ironic result of the Court’s error is this: The onlyarrestees to whom the outcome here will ever make a difference are those who have been acquitted of the crime of arrest (so that their DNA could not have been taken upon conviction). In other words, this Act manages to burden uniquely the sole group for whom the Fourth Amendment’s protections ought to be most jealously guarded: people who are innocent of the State’s accusations.

    I’m with the dissenters on this one. I don’t favor police performing warrantless searches and seizing evidence for crimes not related to the investigation at the time of the arrest. There are plenty of ways to merely identify a suspect without collecting DNA.

    Of course, I’ll bet you could make a case under Scalia’s arguments for iris scans being a highly reliable, non-intrusive method of identification (without the benefit of solving crimes). But that’s another thread…

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  3. Xetrov

    Fingerprints of arrestees are taken primarily to identify them (though that process sometimes solves crimes); the DNA of arrestees is taken to solve crimes (and nothing else.

    That’s a good distinction from Scalia. But to turn it on it’s head, don’t the States just then need to pass a law saying a DNA swab shall be used to identify a known criminal in addition to fingerprints? If so, his dissention wouldn’t apply in that case, and I’m pretty sure he’s not saying that’s his only problem with the ruling.

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  4. Hal_10000 *

    Correct me if I’m wrong, but I think that with fingerprints it works the other way around. If you have a crime, you can run the fingerprints against an extant database. But you can’t get someone’s fingerprints and then go on a fishing expedition to see what else he may have done. That, I think, is the key point here. That under this doctrine, any arrest could result in a fairly thorough search.

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  5. Xetrov

    Correct me if I’m wrong, but I think that with fingerprints it works the other way around. If you have a crime, you can run the fingerprints against an extant database. But you can’t get someone’s fingerprints and then go on a fishing expedition to see what else he may have done. That, I think, is the key point here. That under this doctrine, any arrest could result in a fairly thorough search.

    As I understand it (which could certainly be faulty), if you are arrested, you are then fingerprinted in the booking process. Those fingerprints go into a database somewhere, and are run against other fingerprints in that database, which includes those taking from crime scenes. If your fingerprints match those taken from a crime scene, they can then investigate and potentially prosecute you for that other crime. This is being seen as an extension of that, except with a DNA cheek swab.

    If I’m arrested, and I get fingerprinted. But then I’m never convicted, do my fingerprints stay in the database? If so, then this DNA law has one up on that for citizen protection – they have to remove your DNA from the database if you’re not convicted of anything.

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  6. Thrill

    None of this matters. As I quoted Scalia above, Maryland law only allows two circumstances for using DNA merely to identify people and identification during arrest isn’t one of them. All other uses except for the two specified are illegal.

    Scalia and the dissenters actually voted according to the law that was put before them. The majority appears to have upheld their own preferences in favor of law enforcement and at the expense of the innocent.

    Disappointing, but not surprising.

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  7. AlexInCT

    This ruling freaks me out. Leviathan already has too much power and its apparatchiks are quite content to use said power for their own agendas as the IRS and DOJ scandals show us. Things like this will make it easier for the elite to make criminals out of all of us.

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  8. Seattle Outcast

    This is one of those cases where the average person’s understanding of statistics is totally inadequate. Most people can’t even figure out the odds on simple games of chance involving dice or a roulette wheel, fail a lot of coin flipping questions (I just flipped a coin five times and it came up heads. What are the odds that it will come up heads the next time I flip it?) – do we expect a jury to understand the odds of a DNA match when TV has already told them how foolproof it is?

    Also, the tendency of any law enforcement organization is to push the limits of any court ruling and ere of the side of “Oh hey, we were just trying to catch bad guys. You don’t have anything to hide do you? Only people with something to hide would be against us doing this.” and your rights go in the gutter right next to the copy of the constitution they wiped their butt with.

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  9. Hal_10000 *

    Doug Mataconis has, as usual, a good post on this attacking the majority decision thusly:

    That’s roughly analogous to police saying that they’re going to search someone’s home sua sponte without a warrant to see if there might be evidence of other crimes there, which would clearly be impermissible. If that’s impermissible, though, it’s hard to see how suspicionless, warrentless, DNA testing can possible be permissible under a proper understanding of the Fourth Amendment.

    Scalia also pointed out that there are 23 million people arrested every year. With this decision,the Court is pretty much paving the way to a national DNA database.

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  10. Mississippi Yankee

    There are plenty of ways to merely identify a suspect without collecting DNA.

    Unless they are school aged children right?

    Of course, I’ll bet you could make a case under Scalia’s arguments for iris scans being a highly reliable, non-intrusive method of identification (without the benefit of solving crimes). But that’s another thread…

    You shameless comment WHORE!!!
    Put those tits back in your shirt you attention starved little slut…

    :-) smiley face used very sparingly here

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  11. Thrill

    Unless they are school aged children right?

    Taking DNA from school kids? Leave your hobbies out of this.

    You shameless comment WHORE!!!

    You love me, you hate me. You forget me when I’m gone.

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  12. Thrill

    The difference is that fingerprints are primarily used for identification and also used to investigate crimes in relatively rare circumstances. DNA was only used in this case to find evidence of other crimes.

    The police didn’t use it to identify the defendant. It had one purpose only: Find other crimes to tie the defendant to. Claiming it had anything to do with identification was a lie.

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  13. Xetrov

    If that’s the case, then my previous point/question still stands –

    That’s a good distinction from Scalia. But to turn it on it’s head, don’t the States just then need to pass a law saying a DNA swab shall be used to identify a known criminal in addition to fingerprints? If so, his dissention wouldn’t apply in that case, and I’m pretty sure he’s not saying that’s his only problem with the ruling.

    I think Scalia also alludes to having the same problem as the guy in the video I posted above. That being a random search into a DNA database is unreasonable in regard to the fourth amendment because it is essentially a random search trying to tie the arrestee to any crime in the database. They do the exact same thing with the national fingerprint database. So why is one ok, and the other not in regard to the fourth amendment?

    You could also make a fifth amendment argument – unwillingly giving a DNA swab that ties me to a different crime is in essence incriminating myself with my own DNA, without giving me the option of not incriminating myself.

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