Last week the Supreme Court decided, based on the majority's appeal to reasonableness, that police can collect a DNA sample from people when they are placed under arrest. Scalia and three liberals formed the dissent, a strange set of bedfellows if ever there was one. Your libertarian-leaning friends are no doubt up in arms about "DNA databases" and the police state. To a great extent, hyperbolic language like that obscures the real problem with this decision.
In the majority opinion, Anthony Kennedy says:
DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure. 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.
Here is why that analogy is inapplicable and intellectually dishonest.
Fingerprinting and photographing are done for the purpose of identification. They're standard police procedure to ensure that your are Joe Blow rather than John Doe. They are not used retroactively to charge you with unsolved crimes. Contrary to what Hollywood portrays, useful fingerprint evidence is rare in criminal cases; the police don't get your picture and prints and then say, "Let's see what else we can charge this guy with." With a DNA sample, they will indeed have the ability to compare to a database of DNA evidence collected in previous cases – solved or unsolved. If you bleed all over the door handle during a home invasion in 2013 and get arrested five years later for drunk driving, the DNA evidence you provide at the time of arrest could be used with relative ease to tie you to the earlier home invasion.
So what?, most people say. Collecting DNA evidence will lead to convictions of guilty people in unsolved crimes. Good. But here's the real problem: this decision is, in essence, the end of the need for a search warrant. Let me explain.
You're suspected of a homicide. They neither have enough evidence to arrest you nor enough probable cause to get a judge to sign off on a search warrant. The police want to search your home to collect both physical and DNA evidence against you. But they can't.
Except now they don't have to. What they do instead, per this decision, is continue to keep you under surveillance as a suspect. They follow you around and wait for you to commit the most minor offense that will enable them to place you under arrest, even if they have no hope of convicting you. They collect DNA samples at the time of arrest and use that to connect you to the crime to which they couldn't otherwise connect you.
You're still not concerned, right? Because once again we're tying guilty people to crimes they committed. The problem is, law enforcement collectively has a strong incentive to collect as many individual DNA samples as possible. It is in their best interest to arrest, fingerprint, and DNA sample as many people as it can, both to resolve old unsolved cases and to provide them with a larger pool of suspects for future cases. I'm not saying that the FBI and police will be playing a game of "Find the arrestable offense" from now on. If they're smart, though, that's exactly what they'll do.
The problem here – ethically, not legally – is not that DNA evidence can be used to connect offenders to all of their past crimes. The problem is that in order for law enforcement to maximize the utility of DNA as a crime-solving tool, they need (theoretically) a sample from everyone. And there's one great way to get that, in the words of the majority opinion.
tl;dr = It is in the interest of the police to arrest you for something minor now to collect evidence that may tie you to a more serious crime in the future, as well as unsolved crimes from the past. Goodbye search warrants. You had a good 230+ year run.
Leading Edge Boomer says:
"They are not used retroactively to charge you with unsolved crimes."
Of course they are. There exists a growing federal database of fingerprints, and someone arrested and fingerprinted is routinely added to this database, and a previously unsolved crime with fingerprint evidence can be linked to a recently arrested person.
One can debate again about whether this is a good thing, but it is ongoing and has been for a long time.
Patrick says:
Wouldn't they still need a search warrant to search your home and possessions for non DNA evidence? It isn't like collection of DNA evidence is the ONLY reason to search someone's home.
And it isn't like fingerprinting led to a flood of arrests just for the purpose of building a fingerprint database.(fingerprints *can* be used to tie someone to past crimes)
Liebchen says:
They don't need to arrest you, if they suspect you. They can follow you and pick up that Starbucks coffee cup that you throw away.
middle seaman says:
The reality of total lack of privacy and at the same tome increase of government knowledge and control of individuals has become as sure and unavoidable as taxes on the poor. Since we lack the democratic institutions, e.g. congress, to protect us we are crap creek.
It's not clear whether we should reestablish control over Capitol Hill or whether we start a guerrilla war with political IUDs.
J. Dryden says:
On the plus side, this precedent will really be used exclusively to harass and imprison black and Hispanic men, so really there's no need to get upset about it.
amil666 says:
I think you're overestimating "most minor offense." You cannot be arrested for anything less than a misdemeanor. In other words, you cannot be arrested for a violation. (A DUI is typically considered at least a misdemeanor by the way, and not merely a traffic violation). So, basically, if the police do decide to put surveillance on you 24/7, they can't arrest you just for running a red light or littering or jaywalking. So it seems very unlikely, considering the lack of resources, unless you're suspected of a extraordinarily heinous crime. I mean it would not be worth their while to put you under 24/7 surveillance just on the off chance you decide to smoke pot in public or commit a DUI, especially considering the thousands of other more efficient ways they can go about achieving probable cause as to the important crime, e.g., by finding witnesses, rummaging through your trash, etc.
Don't get me wrong, I'm not defending this decision. But I don't think this particular concern is valid. The troubling aspect for me is that they are building a database for potential future use.
amil666 says:
So I just skimmed through the case, and it turns, they can only take a DNA when you are under arrest for a "serious offense". A serious offense is at least a felony, and includes stuff like murder, rape, and at the least aggravated assault (which is what King was arrested for). So, yeah, definitely not "most minor offense".
eau says:
@amil666 – Ed didn't say "most minor offense", he said "most minor offense that will enable them to arrest you". Bit of a difference, no?
I thought it was just 2nd Amendment fetishists that can't read all the way to the end of sentences…
amil666 says:
Eau,
The point is that it would be crazy to put you under 24/7 surveillance on the off chance they catch you committing a serious offense. The least minor offense in this case would be aggravated assault. That usually involves a gun or knife and requires serious bodily injury. That is not something that a person commonly/casually commits in public, such that it'd be no problem to catch you doing it. The tone of Ed's article suggests that he's thinking of very minor offenses like speeding, which you are almost certain to find someone doing if you put them under 24/7 offense. I apologize for not being more clear on this matter, but you may find this Wikipedia article enlightening http://en.wikipedia.org/wiki/Implicature#Conversational_implicature
Freeportguy says:
The same people who don't want to be screened by TSA in airports, have NSA check their mails and calls, or the IRS ask them for additional information to justify their tax exemption request now won't mind the government having their DNA?!?
Yeah right!!!
Xynzee says:
It's always the 2nd Amend absolutist, tyrannical government conspiracy theorist types that run out and vote in droves for just the people who will hand deliver them their dystopian fantasy.
The other issue with *both* DNA and finger printing is—despite the myth that CSI wants us to believe—whilst accurate are far from perfect. Worse yet DNA can be accidentally tainted in the lab or at collection. They don't do these tests like high school or university biology (1 at a time), its a business so they rack up a bunch of samples for processing as a batch. Mistakes happen that's life. Unfortunately this type of mistake could cost you your life.
MS says:
Although the law in question in the case that was ruled on only specified DNA collection for certain serious crimes, it's clear that the Supreme Court has authorized DNA collection any time fingerprints or photographs would be collected – any arrest.
In the future, as state budgets allow (got to close a few more elementary schools first), we can expect some states to roll out DNA collection for all arrestees.
We can also expect, as we've seen in Great Britain, increasing pressure for entire communities to submit DNA samples any time there is a unsolved ugly crime. If you have nothing to hide, why not submit your DNA to our data bank where it will be kept forever?
Big dog says:
There is another side to this issue. I have heard of many cases where DAs refuse to gather DNA evidence when they think they have a sure conviction. In many cases innocent people are convicted, some ending up on death row. It might be helpful to prove your innocence by having your DNA on file at the ready. Other than that I don't see a great deal of difference between finger printing and DNA swabbing.
amil666 says:
MS:
The Supreme Court is very careful in its wording. They know that every word will be endlessly dissected and interpreted by lawyers and other judges. Even if they were not careful, they will and must be interpreted as meaning every word they say. In the opinion, the SC repeatedly makes sure to say "serious offense".
Here is their ruling:
"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" [emphasis added].
Later, they even suggest why they single out serious offenses:
"And, as noted above, actual release of a serious offender as a routine matter takes weeks or months in any event. By identifying not only who the arrestee is but also what other available records disclose about his past to show who he is, the police can ensure that they have the proper person under arrest and that they have made the necessary arrangements for his custody; and, just as important, they can also prevent suspicion against or prosecution of the innocent."
To summarize: it's important, the Court's opinion, to take a DNA sample because the "actual release of a serious offender as a routine matter takes weeks or months" and they need to know (a) who exactly it is they have and (b) that they aren't locking up an innocent for so long.
Note that this rationale would not work for a non-serious offense.
They later go on to add:
"So the Court has insisted on some purpose other than “to detect evid
ence of ordinary criminal wrongdoing” to justify these searches in the absence of individualized suspicion. Edmond,
supra, at 38. Once an individual has been arrested on probable cause for a dangerous offense that may require detention before trial, however, his or her expectations of privacy and freedom from police scrutiny are reduced. "
Chris says:
You are right. You've written just what I was thinking after hearing the news. Thank you.
Tim says:
The other problem with trying to use DNA to link to old crimes is that the DNA evidence doesn't always equal your perpetrator. Same is true with fingerprinting. In many cases, especially serious ones, the primary goal is to 'solve' the case. That doesn't necessarily mean they try to discover what happened; just that they put together the best case available on the person who matches DNA/fingerprints as well as preconceptions.
It really swings both ways. These kinds of forensic evidence can exonerate you, or make you the prime suspect even if you were tangentially attached to the crime/victim.
amil666 says:
Tim,
DNA evidence has been admissible evidence for a very long time. This ruling doesn't change that, though I'm not sure if you meant to suggest that.
In any case, judges have a duty to inform the jury of the inherent limitations of DNA evidence, and a competent criminal defense lawyer will usually try to raise reasonable doubt about the DNA evidence by showing that the DNA was unreliably gathered or tested, or that it's incomplete or otherwise inconclusive. That's not to say that the system is fool proof. Obviously wrongful convictions are still possible (though so are wrongful acquittals). And sadly, the poor will more likely have an imcompetent lawyer than wealthy defendants like OJ.
You could argue that DNA evidence tends to unduly prejudice juries, in that they tend to make it seem more reliably than it may be. But I think it would be a very bad idea to exclude DNA evidence. If you deny the prosecution's right to enter DNA evidence, you have to also deny the defendant's right to do the same, since there's no principled reason not to in that case. There are many, many cases of people being acquitted because of DNA evidence. Moreover, there is nothing inherently unfair about DNA evidence, unlike evidence of a prior conviction, which is generally excludable. Evidence of a prior conviction unfairly disadvantages someone who happens to have a criminal record, and it denies the defendant's agency. Whereas nothing about DNA evidence makes it inherently more favorable to one side or the other, and it is no different, in terms of fairness, from hair or blood samples, which isn't to say that it doesn't have problems that those types of evidence don't.
Xynzee says:
@Amil: massive testing/"evidence" collecting has already occurred.
http://www.wired.com/politics/law/news/2000/04/35727
Knowing people from (yes it does exist) Wee Waa and someone on the DNA test team there were a few questions raised over the "program". Effectively every male was "asked" to provide a sample. Some how it became "known" who had refused to comply. They were subjected to societal suspicion as to "what they had to hide" until the suspect turned himself in. However, in a community this size, committing this kind of crime is stupidity on a grand scale. It was more a case of getting the suspect to realise he was far safer in police custody and prison than in public. The community pretty much knew it was him already, and the lads were prepared for an "accident" to happen.
Jane says:
Here in Sweden, blood samples are taken from every newborn. They weren't supposed to be used in crime detection, but when our foreign minister was knifed to death, they found the perp through the blood sample taken when he was a newborn.
I don't suppose immigrants necessarily give DNA, but then you get your iris scanned, your face photographed and your fingerprints taken for a passport, so… there is not much of anywhere to hide.
not that it matters with the NSA and google etc.
LK says:
The issue the way I see it is a matter of statistics: if you have a DNA match with one-in-a-million chance of being wrong, but you have a hundred million samples on file, you will get the wrong answer much more often than if you only had a couple of million samples. This means that as your database grows (and this ruling promises to grow it much faster than ever before) your risk of false evidence grows. At some point you will have two matches for two different people with the same DNA sample from a single crime-scene. Unless our DNA matching technology vastly improves, this database bloat is a real risk.
Hazy Davy says:
I wonder what "unreasonable search and siezure" search warrants were meant to counter. [I honestly wonder, and will have to read up on it, later today…]
Somehow, in my mind, it was designed (originally) to prevent:
– Theft
– Planting of evidence
– Use of frequent search as a means of harassment of suspected guilty
Perhaps it's the last one, in which case search warrants would be needed so that you're not *frequently* arrested and swabbed. (Unless you're non-white.)
c u n d gulag says:
And here, I thought Scalia and I would never agree on anything!
I shudder at saying this, but, "He's right."
Usually, it 'He's too far right!'
MS says:
Federal law says straight up that any arrestees may have their DNA taken. Full stop.
http://www.law.cornell.edu/uscode/text/42/14135a
So this idea that DNA collection is going to be restrained to "serious offenses" has already flown out the window.
And no, DNA is never going to be used to exonerate anyone and release them from custody. If you're in custody and your DNA hasn't been taken yet, by definition the police think they have enough other evidence to convict you. If your DNA doesn't match the crime scene, that just means you didn't leave any DNA at the crime scene when you did it.
Major Kong says:
Sigh.
So I guess I'm just going to have to spend the rest of my life walking around in full MOPP 4 (chem gear) so I don't accidentally leave any DNA near a potential crime scene.
Big dog says:
Who is to decide what the " serious" part of serious offense means? The arresting officer? Give me a break!
amil666 says:
MS,
I was talking about what the ruling allows, not all of the the legislation already on the books (outside of Maryland). This ruling should limit such legislation. The DOJ acknowledges that this may happen. In an old DOJ memo, authored by Eric Holder, after discussing the various challenges to this and similar laws, he writes:
"In a district in which there is an adverse decision by a district judge that has not yet been
corrected on appeal, investigative agencies must suspend DNA sample collection from arrestees
in that district in the absence of a supporting court order for collection in a specific, individual case. This will protect investigative agents in that district from accusations and potential lawsuits charging that they have violated the alleged right of arrestees to be free of DNA sample collection, as declared in the adverse decision. "
http://www.justice.gov/ag/ag-memo-dna-collection111810.pdf
Stay tuned however. Holder is sure to write another memo soon discussing the DOJ's interpretation of the King ruling. Such policy memos are common, particularly after an important SC ruling. Often a defense lawyer will ask the DOJ what its new policy is in light of a recent ruling, and the DOJ will come out with a new memo.
Also, here is a statement from the ACLU in light of the recent decision:
"At the same time, it's important to recognize that other state laws on DNA testing are even broader than Maryland’s and may present issues that were not resolved by today's ruling."
http://www.aclu.org/criminal-law-reform/aclu-comment-maryland-v-king-decision
And what you said about DNA never exonerating is patently untrue. See http://www.innocenceproject.org/Content/DNA_Exonerations_Nationwide.php . Note: I'm assuming you know that exoneration means "being cleared of charges post-conviction." You may not have meant this since you only mention custody. If you just mean "being found not guilty", that is "even more" patently untrue. It's not just the police who can request a DNA sample. So can the defendant or his defense lawyer. And they very often do, when it tends to show innocence.
LK: that is not how statistics work.
amil666 says:
Big dog:
"Serious offense" is a technical legal term. It has a fairly specific meaning in common law, and state statutes tend to give more specific definitions. It never includes misdemeanors or violations.
Rosalux says:
Have to disagree with you here Ed, not only because I think you're wrong about the effect of this ruling, but also on the core issue of its constitutionality.
The fourth amendment protects only against "unreasonable" searches and seizures. That's it. It's vague. Where someone is in custody for a purported felony, I simply don't think a cheek swab is unreasonable for the purpose of seeing if they've committed any other crimes, or identifying them, etc. It's quick and non-intrusive – not like an anal cavity search or swabbing the cheek of someone who's not in custody, or searching a car without reasonable suspicion, etc. Call me unreasonable. There are plenty of other areas where I think the 4th amendment has been terribly eroded, but this ain't it.
negative 1 says:
I'll defend it, somewhat. I don't really care and it doesn't affect me, honestly, and the one time someone searched a fingerprint database it was to identify the guy who broke into my house and startled my wife when she came home. I'm glad they did it. On an intellectual argument level, is this open to abuse? Yes, Ed detailed how. Do any of us really think that's going to happen? Are my local Keystone Kops going to conduct a city-wide 'arrest them all' program to steal our DNA? That is Fox News-level paranoia masquerading as analysis. Amil666 and Rosalux above me are correct, the parameters are detailed in the decision. So far you can swab folks who've been arrested, and though it's possible that this leads to the black helicopters it's unlikely. Is it the wrong decision by the court? Yes, but on the list of problems this country has (unemployment, income inequality, serious poverty) this is way low on the list.
sluggo says:
Just another frame of the slow-motion film.
Ever have an accident, everything slows down in your mind, like everything is in slow motion.
We are marching to the police state, and I see the small isolated moments flipping by picture by picture. Warrant-less wiretaps, storm troopers on campus, pepper spraying Occupy Wall Street, now DNA samples and it will go on and on and on………
Slow motion train wreck.
amil666 says:
I think a lot of "reasonable" people are unduly dismissing concern over a DNA database as a conspiracy theory/tinfoil hat kind of worry. But there are very good reasons to be concerned about such databases that have nothing to do with jack-booted thugs, but rather with unfairness.
For example, if you have ever been arrested for a serious offense, and your DNA is entered into a database for future use, your DNA may be checked as to all future crimes, regardless of whether you were innocent of the crime for which you were arrested. This thereby increases your chances of being arrested again for a serious crime you similarly didn't commit.
And DNA evidence is more problematic than fingerprints, precisely because of its perceived reliability and how much easier it is to query a database for it. It may be that you can be indicted even though the prosecution has little more than DNA evidence against you, whereas I doubt fingerprints can be so heavily relied on. Though DNA may often be very reliable, it can sometimes be very unreliable. But it takes expert witnesses and defense lawyers to show why this particular DNA evidence is unreliable. Moreover, it's much easier to raise reasonable doubt about bad DNA evidence–which is what it takes to be convicted–than it is to show that the DNA isn't probable cause that you committed the crime–which is what it takes to be indicted usually.
And even if you are acquitted, it sucks to charged for a serious crime and to have to defend yourself, and it sucks even to be arrested. It's very expensive, time-consuming and nerve-racking to have to defend yourself in court. And even if you aren't charged, you can spend weeks or months in jail until you are released, not to mention the social stigma that is attached to anyone who is ever even falsely accused of a crime–and not just a social stigma. For example, when applying for naturalization/citizenship, you are asked not only about crimes you were convicted for, but about crimes you were arrested for, regardless of whether you were even indicted let alone convicted. It's bad enough to have to admit to the USCIS that you've been arrested once for a crime you didn't commit, but to have to admit to being arrested multiple times makes you seem much more suspicious. As the USCIS isn't bound by a reasonable doubt or even probable cause standard, this can lead you to be denied naturalization.
We put up hard barriers against arrests and indictments in this country for a reason.
And this problem is made worse by the fact that a poor or non-white person is much more likely to be a arrested for a serious crime he/she didn't commit than a wealthier white person.
This ruling doesn't say DNA databases are okay, and Maryland doesn't seem to even have such a DNA database. But this ruling does make it all the easier to build such a database, and people should be concerned about that for very real, legitimate reasons. And these reasons in no way depend on the bad faith or malicious intent of police or government agents or fantasies about 24/7 surveillance, but on the inherent unfairness of the type of legal system that naturally grows from such a database.
giri says:
This amil666 guy pretty much nailed it, on all ends.
just me says:
Liebchen Says:
June 10th, 2013 at 7:34 pm
They don't need to arrest you, if they suspect you. They can follow you and pick up that Starbucks coffee cup that you throw away.
They can, but they won't be able to use it.
MS Says:
June 11th, 2013 at 9:51 am
And no, DNA is never going to be used to exonerate anyone and release them from custody.
That's so patently ridiculous it doesn't even bear refuting here.
just me says:
(post cut in half!)
amil666 Says:
June 10th, 2013 at 8:42 pm
Don't get me wrong, I'm not defending this decision. But I don't think this particular concern is valid. The troubling aspect for me is that they are building a database for potential future use.
This. Precisely this.
Really? says:
The constitution protects against unreasonable search and seazure. What is unreasonable about a cheek swab? Getting DNA tested no longer requires blood samples, needles, or anything remotely invasive.
It is not unreasonable for the police to make getting a biological sample part of booking when those biological samples are by far the best kind of evidence we know how to process. DNA is the closest we have to silver bullets for criminal justice.
Honestly, the issue with DNA evidence is not that the police are to gung ho about finding ways to get it, its that the police in many areas do not want to go to the expense of actually testing DNA.
I have a much greater concern about cities/counties/states that don't want to spend the money on DNA testing because they think that other more circumstantial evidence should be sufficeint for conviction.
The CSI effect is not a bug of our system, its a feature.
Tosh says:
@Really
You truely missed the point; it's not the collection, it's how and to why end that collection is applied. Pay attention…
Tosh says:
@Just Me:
MS is accurate. The State, to the best of my knowledge, has never used GM to release a convicted person; this has generally been the purview of interested third parties. Just last month, a man on Death Row in Miss was denied a DNA test that could have exonerated him by the State.
Also, it is interesting to note, the success rate of those interested third parties: I believe the percentage is quite high…
just me says:
@Tosh
I think it probably quite rare that The State would seek to overturn one of its own convictions unless at the behest of some interested third party. And I don't think MS intimated as much either.
Her/his statement was:
And no, DNA is never going to be used to exonerate anyone and release them from custody. If you're in custody and your DNA hasn't been taken yet, by definition the police think they have enough other evidence to convict you. If your DNA doesn't match the crime scene, that just means you didn't leave any DNA at the crime scene when you did it.
Which, as I read it, is inaccurate. DNA evidence police didn't take or didn't use at the time of the original investigation has, to the best of my knowledge, been used to exonerate a few hundred people in custody.
Benny says:
If you're ever arrested and booked, your mugshot will be kept and possibly shown to crime victims in the future in an effort to solve a future crime. Is that a reason not to take mugshots?
DNA matching is far more accurate than fingerprint matching. And (contrary to OJ Simpson's defense team) mishandled/degraded DNA doesn't turn into someone else's DNA – it's just unusable for matching purposes.
listsevery listskilith says:
Thank you, I have just been looking for information about this subject for a long time and yours is the best I have came upon till now. But, what about the conclusion? Are you certain in regards to the source?|What i don't realize is actually how you're no longer really a lot more well-preferred than you may be right now. You're very intelligent.