SCOTUS allows DNA Collection

[Jenksismyhero]

I'm sure you liberals agree with Scalia's opinion on this one (I do for sure).

 

http://www2.bloomberglaw.com/public/deskto..._2013_Court_Opi

 

JUSTICE SCALIA, with whom JUSTICE GINSBURG, JUSTICE SOTOMAYOR, and JUSTICE KAGAN join, dissenting.

 

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 [*20] 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.

 

 

 

I

A

At the time of the Founding, Americans despised the British use of so-called "general warrants"-warrants not grounded upon a sworn oath of a specific infraction by a particular individual, and thus not limited in scope and application. The first Virginia Constitution declared that "general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed," or to search a person "whose offence is not particularly described and supported by evidence," "are grievous and oppressive, and ought not be granted." Va. Declaration of Rights §10 (1776), in 1 B. Schwartz, The Bill of Rights: A Documentary History 234, 235 (1971). The Maryland Declaration of Rights similarly provided that general warrants were "illegal." Md. Declaration of Rights §XXIII (1776), in id., at 280, 282.

 

In the ratification debates, Antifederalists sarcastically predicted that the general, suspicionless warrant would be among the Constitution's "blessings." Blessings of the New Government, Independent Gazetteer, Oct. 6, 1787, in 13 Documentary History of the Ratification of the Constitution 345 (J. Kaminski & G. Saladino eds. 1981). "Brutus" of New York asked why the Federal Constitution contained no provision like Maryland's, Brutus II, N. Y. Journal, Nov. 1, 1787, in id., at 524, and Patrick Henry warned that the new Federal Constitution would expose the citizenry to searches and seizures "in the most arbitrary manner, without any evidence or reason." 3 Debates on the Federal Constitution 588 (J. Elliot 2d ed. 1854).

 

Madison's draft of what became the Fourth Amendment answered these charges by providing that the "rights of the people to be secured in their persons ... from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause ... or not particularly describing the places to be searched." 1 Annals of Cong. 434-435 (1789). As ratified, the Fourth Amendment 's Warrant Clause forbids a warrant to "issue" except "upon probable cause," and requires that it be "particula[r]" (which is to say, individualized) to "the place to be searched, and the persons or things to be seized." And we have held that, even when a warrant is not constitutionally necessary, the Fourth Amendment 's general prohibition of "unreasonable" searches imports the same requirement of individualized suspicion. [*21] See Chandler v. Miller, 520 U.S. 305 , 308 (1997).

 

Although there is a "closely guarded category of constitutionally permissible suspicionless searches," id., at 309 , that has never included searches designed to serve "the normal need for law enforcement," Skinner v. Railway Labor Executives' Assn., 489 U.S. 602 , 619 (1989) (internal quotation marks omitted). Even the common name for suspicionless searches-"special needs" searches-itself reflects that they must be justified, always, by concerns "other than crime detection." Chandler, supra, at 313- 314 . We have approved random drug tests of railroad employees, yes-but only because the Government's need to "regulat[e] the conduct of railroad employees to ensure safety" is distinct from "normal law enforcement." Skinner, supra, at 620 . So too we have approved suspicionless searches in public schools-but only because there the government acts in furtherance of its "responsibilities ... as guardian and tutor of children entrusted to its care." Vernonia School Dist. 47J v. Acton, 515 U.S. 646 , 665 (1995).

 

So while the Court is correct to note (ante, at 8-9) that there are instances in which we have permitted searches without individualized suspicion, "n none of these cases ... did we indicate approval of a [search] whose primary purpose was to detect evidence of ordinary criminal wrongdoing." Indianapolis v. Edmond, 531 U.S. 32 , 38 (2000). That limitation is crucial. It is only when a governmental purpose aside from crime-solving is at stake that we engage in the free-form "reasonableness" inquiry that the Court indulges at length today. To put it another way, both the legitimacy of the Court's method and the correctness of its outcome hinge entirely on the truth of a single proposition: that the primary purpose of these DNA searches is something other than simply discovering evidence of criminal wrongdoing. As I detail below, that proposition is wrong.

 

 

 

B

The Court alludes at several points (see ante, at 11, 25) 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. See Arizona v. Gant, 556 U.S. 332 , 343-344 (2009); Thornton v. United States, 541 U.S. 615 , 632 (2004) (SCALIA, J., concurring in judgment). Neither is the object of the search at issue here.

 

The Court hastens to clarify that it does not mean to approve invasive surgery on arrestees or warrantless searches of their homes. Ante, at 25. That the Court feels the need to disclaim these consequences is as damning a criticism of its suspicionless-search regime as any I can muster. And the Court's attempt to distinguish those hypothetical searches from this real one is unconvincing. We are told that the "privacy-related concerns" in the search of a home "are weighty enough that the search may require a warrant, notwithstanding the diminished expectations of privacy of the arrestee." Ante, at 26. But why are the "privacy-related concerns" not also "weighty" when an intrusion into the body is at stake? (The Fourth Amendment lists "persons" first among the entities protected against unreasonable searches and seizures.) And could the police engage, without any suspicion of wrongdoing, in a "brief and ... minimal" [*22] intrusion into the home of an arrestee-perhaps just peeking around the curtilage a bit? See ante, at 26. Obviously not.

 

At any rate, all this discussion is beside the point. No matter the degree of invasiveness, suspicionless searches are never allowed if their principal end is ordinary crime-solving. A search incident to arrest either serves other ends (such as officer safety, in a search for weapons) or is not suspicionless (as when there is reason to believe the arrestee possesses evidence relevant to the crime of arrest).

 

Sensing (correctly) that it needs more, the Court elaborates at length the ways that the search here served the special purpose of "identifying" King. 1 But that seems to me quite wrong-unless what one means by "identifying" someone is "searching for evidence that he has committed crimes unrelated to the crime of his arrest." At points the Court does appear to use "identifying" in that peculiar sense-claiming, for example, that knowing "an arrestee's past conduct is essential to an assessment of the danger he poses." Ante, at 15. If identifying someone means finding out what unsolved crimes he has committed, then identification is indistinguishable from the ordinary law-enforcement aims that have never been thought to justify a suspicionless search. Searching every lawfully stopped car, for example, might turn up information about unsolved crimes the driver had committed, but no one would say that such a search was aimed at "identifying" him, and no court would hold such a search lawful. I will therefore assume that the Court means that the DNA search at issue here was useful to "identify" King in the normal sense of that word-in the sense that would identify the author of Introduction to the Principles of Morals and Legislation as Jeremy Bentham.

 

 

 

1

The portion of the Court's opinion that explains the identification rationale is strangely silent on the actual workings of the DNA search at issue here. To know those facts is to be instantly disabused of the notion that what happened had anything to do with identifying King.

 

King was arrested on April 10, 2009, on charges unrelated to the case before us. That same day, April 10, the police searched him and seized the DNA evidence at issue here. What happened next? Reading the Court's opinion, particularly its insistence that the search was necessary to know "who [had] been arrested," ante, at 11, one might guess that King's DNA was swiftly processed and his identity thereby confirmed-perhaps against some master database of known DNA profiles, as is done for fingerprints. After all, was not the suspicionless search here crucial to avoid "inordinate risks for facility staff" or to "existing detainee population," ante, at 14? Surely, then- surely-the State of Maryland got cracking on those grave risks immediately, by rushing to identify King with his DNA as soon as possible.

 

Nothing could be further from the truth. Maryland officials did not even begin the process of testing King's DNA that day. Or, actually, the next day. Or the day after that. And that was for a simple reason: Maryland [*23] law forbids them to do so. A "DNA sample collected from an individual charged with a crime ... may not be tested or placed in the statewide DNA data base system prior to the first scheduled arraignment date." Md. Pub. Saf. Code Ann. §2-504(d)(1) (Lexis 2011) (emphasis added). And King's first appearance in court was not until three days after his arrest. (I suspect, though, that they did not wait three days to ask his name or take his fingerprints.)

 

This places in a rather different light the Court's solemn declaration that the search here was necessary so that King could be identified at "every stage of the criminal process." Ante, at 18. I hope that the Maryland officials who read the Court's opinion do not take it seriously. Acting on the Court's misperception of Maryland law could lead to jail time. See Md. Pub. Saf. Code Ann. §2-512© -(e) (punishing by up to five years' imprisonment anyone who obtains or tests DNA information except as provided by statute). Does the Court really believe that Maryland did not know whom it was arraigning? The Court's response is to imagine that release on bail could take so long that the DNA results are returned in time, or perhaps that bail could be revoked if the DNA test turned up incriminating information. Ante, at 16-17. That is no answer at all. If the purpose of this Act is to assess "whether [King] should be released on bail," ante, at 15, why would it possibly forbid the DNA testing process to begin until King was arraigned? Why would Maryland resign itself to simply hoping that the bail decision will drag out long enough that the "identification" can succeed before the arrestee is released? The truth, known to Maryland and increasingly to the reader: this search had nothing to do with establishing King's identity.

 

It gets worse. King's DNA sample was not received by the Maryland State Police's Forensic Sciences Division until April 23, 2009-two weeks after his arrest. It sat in that office, ripening in a storage area, until the custodians got around to mailing it to a lab for testing on June 25, 2009-two months after it was received, and nearly three since King's arrest. After it was mailed, the data from the lab tests were not available for several more weeks, until July 13, 2009, which is when the test results were entered into Maryland's DNA database, together with information identifying the person from whom the sample was taken. Meanwhile, bail had been set, King had engaged in discovery, and he had requested a speedy trial-presumably not a trial of John Doe. It was not until August 4, 2009- four months after King's arrest-that the forwarded sample transmitted (without identifying information) from the Maryland DNA database to the Federal Bureau of Investigation's national database was matched with a sample taken from the scene of an unrelated crime years earlier.

 

A more specific description of exactly what happened at this point illustrates why, by definition, King could not have been identified by this match. The FBI's DNA database (known as CODIS) consists of two distinct collections. FBI, CODIS and NDIS Fact Sheet, http:// www.fbi.gov/about-us/lab/codis/[*24] codis-and-ndis-fact-sheet (all Internet materials as visited May 31, 2013, and available in Clerk of Court's case file). One of them, the one to which King's DNA was submitted, consists of DNA samples taken from known convicts or arrestees. I will refer to this as the "Convict and Arrestee Collection." The other collection consists of samples taken from crime scenes; I will refer to this as the "Unsolved Crimes Collection." The Convict and Arrestee Collection stores "no names or other personal identifiers of the offenders, arrestees, or detain-ees." Ibid. Rather, it contains only the DNA profile itself, the name of the agency that submitted it, the laboratory personnel who analyzed it, and an identification number for the specimen. Ibid. This is because the submitting state laboratories are expected already to know the identities of the convicts and arrestees from whom samples are taken. (And, of course, they do.)

 

Moreover, the CODIS system works by checking to see whether any of the samples in the Unsolved Crimes Collection match any of the samples in the Convict and Arrestee Collection. Ibid. That is sensible, if what one wants to do is solve those cold cases, but note what it requires: that the identity of the people whose DNA has been entered in the Convict and Arrestee Collection already be known. 2 If one wanted to identify someone in custody using his DNA, the logical thing to do would be to compare that DNA against the Convict and Arrestee Collection: to search, in other words, the collection that could be used (by checking back with the submitting state agency) to identify people, rather than the collection of evidence from unsolved crimes, whose perpetrators are by definition unknown. But that is not what was done. And that is because this search had nothing to do with identification.

 

In fact, if anything was "identified" at the moment that the DNA database returned a match, it was not King-his identity was already known. (The docket for the original criminal charges lists his full name, his race, his sex, his height, his weight, his date of birth, and his address.) Rather, what the August 4 match "identified" was the previously-taken sample from the earlier crime. That sample was genuinely mysterious to Maryland; the State knew that it had probably been left by the victim's attacker, but nothing else. King was not identified by his association with the sample; rather, the sample was identified by its association with King. The Court effectively destroys its own "identification" theory when it acknowledges that the object of this search was "to see what [was] already known about [King]." King was who he was, and volumes of his biography could not make him any more or any less King. No minimally competent speaker of English would say, upon noticing a known arrestee's similarity "to a wanted poster of a previously unidentified suspect," ante, at 13, that the arrestee had thereby been identified. It was the previously unidentified suspect who had been identified-just as, here, it was the previously unidentified rapist.

 

 

 

2

That taking DNA samples from arrestees [*25] has nothing to do with identifying them is confirmed not just by actual practice (which the Court ignores) but by the enabling statute itself (which the Court also ignores). The Maryland Act at issue has a section helpfully entitled "Purpose of collecting and testing DNA samples." Md. Pub. Saf. Code Ann. §2-505 . (One would expect such a section to play a somewhat larger role in the Court's analysis of the Act's purpose-which is to say, at least some role.) That provision lists five purposes for which DNA samples may be tested. By this point, it will not surprise the reader to learn that the Court's imagined purpose is not among them.

 

Instead, the law provides that DNA samples are collected and tested, as a matter of Maryland law, "as part of an official investigation into a crime." §2-505(a)(2) . (Or, as our suspicionless-search cases would put it: for ordinary law-enforcement purposes.) That is certainly how everyone has always understood the Maryland Act until today. The Governor of Maryland, in commenting on our decision to hear this case, said that he was glad, because "[a]llowing law enforcement to collect DNA samples ... is absolutely critical to our efforts to continue driving down crime," and "bolsters our efforts to resolve open investigations and bring them to a resolution." Marbella, Supreme Court Will Review Md. DNA Law, Baltimore Sun, Nov. 10, 2012, pp. 1, 14. The attorney general of Maryland remarked that he "look[ed] forward to the opportunity to defend this important crime-fighting tool," and praised the DNA database for helping to "bring to justice violent perpetrators." Ibid. Even this Court's order staying the decision below states that the statute "provides a valuable tool for investigating unsolved crimes and thereby helping to remove violent offenders from the general population"- with, unsurprisingly, no mention of identity. 567 U.S. ___, ___ (2012) (ROBERTS, C. J., in chambers) ( slip op., at 3).

 

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 crime to do so. §2-505(b)(2) .

 

The Maryland regulations implementing the Act confirm what is now monotonously obvious: These DNA searches have nothing to do with identification. For example, if someone is arrested and law enforcement determines that "a convicted offender Statewide DNA Data Base sample already exists" for that arrestee, "the agency is not required to obtain a new sample." Code of Md. Regs., tit. 29, §05.01.04(B) (4) (2011). But how could the State know if an arrestee has already had his DNA sample collected, if the point of the sample is to identify who he is? Of course, if the DNA sample is instead taken in order to investigate crimes, this restriction makes perfect sense: Having previously placed [*26] an identified someone's DNA on file to check against available crime-scene evidence, there is no sense in going to the expense of taking a new sample. Maryland's regulations further require that the "individual collecting a sample ... verify the identity of the individual from whom a sample is taken by name and, if applicable, State identification (SID) number." §05.01.04(K) . (But how?) And after the sample is taken, it continues to be identified by the individual's name, fingerprints, etc., see §05.01.07(B) -rather than (as the Court believes) being used to identify individuals. See §05.01.07(B) (2) ("Records and specimen information shall be identified by ... [the] [n]ame of the donor" (emphasis added)).

 

So, to review: DNA testing does not even begin until after arraignment and bail decisions are already made. The samples sit in storage for months, and take weeks to test. When they are tested, they are checked against the Unsolved Crimes Collection-rather than the Convict and Arrestee Collection, which could be used to identify them. The Act forbids the Court's purpose (identification), but prescribes as its purpose what our suspicionless-search cases forbid ("official investigation into a crime"). Against all of that, it is safe to say that if the Court's identification theory is not wrong, there is no such thing as error.

 

 

 

II

The Court also attempts to bolster its identification theory with a series of inapposite analogies. See ante, at 18-23.

 

Is not taking DNA samples the same, asks the Court, as taking 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," see Katz v. United States, 389 U.S. 347 (1967). Thus, it is unsurprising that the cases the Court cites as authorizing photo taking do not even mention the Fourth Amendment . See State ex rel. Bruns v. Clausmier, 154 Ind. 599 , 57 N. E. 541 (1900) (libel), Shaffer v. United States, 24 App. D. C. 417 (1904) (Fifth Amendment privilege against self-incrimination).

 

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. 3

 

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 [*27] 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). Contrast CODIS, the FBI's nationwide DNA database, with IAFIS, the FBI's Integrated Automated Fingerprint Identification System. See FBI, Integrated Automated Fingerprint Identification System, http://www.fbi.gov/about-us/cjis/fingerpri...ics/iafis/iafis (hereinafter IAFIS).

 

Fingerprints

 

DNA Samples

 

The "average response time for an electronic criminal fingerprint submission is about 27 minutes." IAFIS.

 

DNA analysis can take months-far too long to be useful for identifying someone.

 

IAFIS includes detailed identification information, including "criminal histories; mug shots; scars and tattoo photos; physical characteristics like height, weight, and hair and eye color."

 

CODIS contains "[n]o names or other personal identifiers of the offenders, arrestees, or detainees." See CODIS and NDIS Fact Sheet.

 

"Latent prints" recovered from crime scenes are not systematically compared against the database of known fingerprints, since that requires further forensic work. 4

 

The entire point of the DNA database is to check crime scene evidence against the profiles of arrestees and convicts as they come in.

 

 

 

The Court asserts that the taking of fingerprints was "constitutional for generations prior to the introduction" of the FBI's rapid computer-matching system. Ante, at 22. This bold statement is bereft of citation to authority because there is none for it. The "great expansion in fingerprinting came before the modern era of Fourth Amendment jurisprudence," and so we were never asked to decide the legitimacy of the practice. United States v. Kincade, 379 F. 3d 813 , 874 (CA9 2004) (Kozinski, J., dissenting). As fingerprint databases expanded from convicted criminals, to arrestees, to civil servants, to immigrants, to everyone with a driver's license, Americans simply "became accustomed to having our fingerprints on file in some government database." Ibid . But it is wrong to suggest that this was uncontroversial at the time, or that this Court blessed universal fingerprinting for "generations" before it was possible to use it effectively for identification.

 

The Court also assures us that "the delay in processing DNA from arrestees is being reduced to a substantial degree by rapid technical advances." Ante, at 22. The idea, presumably, is that the snail's pace in this case is atypical, so that DNA is now readily usable for identification. The Court's proof, however, is nothing but a pair of press releases-each of which turns out to undercut this argument. We learn in them that reductions in backlog have enabled Ohio and Louisiana crime labs to analyze a submitted DNA sample in twenty days. 5 But that is still longer than the eighteen days that Maryland needed to analyze King's sample, once it worked its way through the State's labyrinthine bureaucracy. What this illustrates is that these times do not take into account the many other sources of delay. So if the Court means to suggest that Maryland [*28] is unusual, that may be right-it may qualify in this context as a paragon of efficiency. (Indeed, the Governor of Maryland was hailing the elimination of that State's backlog more than five years ago. See Wheeler, O'Malley Wants to Expand DNA Testing, Baltimore Sun, Jan. 11, 2008, p. 5B.) Meanwhile, the Court's holding will result in the dumping of a large number of arrestee samples-many from minor offenders-onto an already over-burdened system: Nearly one-third of Americans will be arrested for some offense by age 23. See Brame, Turner, Paternoster, & Bushway, Cumulative Prevalence of Arrest From Ages 8 to 23 in a National Sample, 129 Pediatrics 21 (2011).

 

The Court also accepts uncritically the Government's representation at oral argument that it is developing devices that will be able to test DNA in mere minutes. At most, this demonstrates that it may one day be possible to design a program that uses DNA for a purpose other than crime-solving-not that Maryland has in fact designed such a program today. And that is the main point, which the Court's discussion of the brave new world of instant DNA analysis should not obscure. The issue before us is not whether DNA can some day be used for identification; nor even whether it can today be used for identification; but whether it was used for identification here.

 

Today, it can fairly be said that fingerprints really are used to identify people-so well, in fact, that there would be no need for the expense of a separate, wholly redundant DNA confirmation of the same information. What DNA adds-what makes it a valuable weapon in the law-enforcement arsenal-is the ability to solve unsolved crimes, by matching old crime-scene evidence against the profiles of people whose identities are already known. That is what was going on when King's DNA was taken, and we should not disguise the fact. 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 Court disguises the vast (and scary) scope of its holding by promising a limitation it cannot deliver. The Court repeatedly says that DNA testing, and entry into a national DNA registry, will not befall thee and me, dear reader, but only those arrested for "serious offense." Ante, at 28; see also ante, at 1, 9, 14, 17, 22, 23, 24 (repeatedly limiting the analysis to "serious offenses"). I cannot imagine what principle could possibly justify this limitation, and the Court does not attempt to suggest any. If one believes that DNA will "identify" someone arrested for assault, he must believe that it will "identify" someone arrested for a traffic offense. This Court does not base its judgments on senseless distinctions. At the end of the day, logic will out. When there comes before us the taking of DNA from an arrestee for a traffic violation, the Court will predictably (and quite rightly) say, "We can find no significant difference between this case and King." Make no mistake about it: As an entirely predictable consequence [*29] 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.

 

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 a consequence of his conviction for second-degree assault. So the ironic result of the Court's error is this: The only arrestees 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.

 

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 Transportation Security Administration 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 have been so eager to open their mouths for royal inspection.

 

I therefore dissent, and hope that today's incursion upon the Fourth Amendment , like an earlier one, 6 will some day be repudiated.

[Soxbadger]

Yeah that is surprising from Scalia.

[Balta1701]

Yeah that is surprising from Scalia.

Really?

[farmteam]

I'm with Scalia on this one. Cold day down south for sure.

 

Taking DNA just to tie them to either unsolved or yet-to-be-committed crimes sounds like a general warrant, which is pretty much the exact thing the 4th Amendment is supposed to protect against.

[Jenksismyhero]

I'm a huge fan of this line: "Against all of that, it is safe to say that if the Court's identification theory is not wrong, there is no such thing as error."

[Soxbadger]

That he would go after the guys he is generally on the same side, especially as his opinion is extremely narrow as he explicitly states in this dissent that after the defendant was convicted it would have been absolutely fine to do the DNA test.

 

So basically he calls out all of his friends over a procedural difference of opinion.

 

Group A: You should be able to DNA test after arrest.

 

Group B: You should be able to DNA test after conviction.

 

In either scenario you are allowing for a general search based on a completely unrelated crime.

 

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 a consequence of his conviction for second-degree assault. So the ironic result of the Court's error is this: The only arrestees 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.

Edited June 5, 2013 by Soxbadger

[Jenksismyhero]

That he would go after the guys he is generally on the same side, especially as his opinion is extremely narrow as he explicitly states in this dissent that after the defendant was convicted it would have been absolutely fine to do the DNA test.

 

So basically he calls out all of his friends over a procedural difference of opinion.

 

Group A: You should be able to DNA test after arrest.

 

Group B: You should be able to DNA test after conviction.

 

In either scenario you are allowing for a general search based on a completely unrelated crime.

 

That's a pretty important distinction though, no?

 

 

[cabiness42]

I'm with Scalia on this one. Cold day down south for sure.

 

Taking DNA just to tie them to either unsolved or yet-to-be-committed crimes sounds like a general warrant, which is pretty much the exact thing the 4th Amendment is supposed to protect against.

 

I'm against allowing the state to take DNA for any arrest, or even for any arrest in specific categories, so I would strike down the Maryland law (and any similar law) as worded.

 

However, I am willing to consider that in this specific case, the state needed his DNA in order to prosecute the case he was originally arrested for (they were Assault1 and Assault2, so DNA could have been involved) and allow this specific collection of DNA to remain admissible.

[Soxbadger]

That's a pretty important distinction though, no?

 

Not really. If a general warrantless search is such a grave offense then it shouldnt matter.

 

In both scenario A and B, they have no evidence to connect me to any other crime, they are putting on complete fishing expeditions.

 

So its okay to fish, but only after the person has been convicted of a crime. Guess Im not really seeing a huge victory for the 4th amendment. If he is such a protector of the 4th amendment, perhaps he should argue that a fishing expedition like that is never allowable.

 

 

[farmteam]

That's a pretty important distinction though, no?

I would say so.

[Soxbadger]

I would say so.

 

Not if you are truly a defender of the 4th amendment. Because back in ye olden times when the 4th amendment was written, the simple way around this would be to convict someone on a small bogus charge and then run their DNA after.

 

If you really are trying to protect against govt intrusion, fishing shouldnt be allowed at all.

 

You can always get a warrant if there is reasonable suspicion.

 

IE:

 

This man is being accused of assault. We have another old case(s) with a similarly described man. We would like to test his DNA against those cases.

 

Its a throw away argument.

[Balta1701]

So I guess my question(s) as the big government guy here are...

 

If the only thing this database is used for is "matching up the DNA of people arrested for crimes with people who are being hunted by authorities" (not used for other research or anything like that...)

 

And having such a database winds up being an effective law enforcement tool to help solve unsolved serious crimes like the 400,000 rapes with untested kits sitting around...

 

Why should I get up in arms about this?

 

The reasons to get angry about it seem to me to be based upon the database being used for something else other than its intended purpose. I'll grant that ain't good, but spell out the downside for me if that doesn't happen?

[farmteam]

Not really. If a general warrantless search is such a grave offense then it shouldnt matter.

 

In both scenario A and B, they have no evidence to connect me to any other crime, they are putting on complete fishing expeditions.

 

So its okay to fish, but only after the person has been convicted of a crime. Guess Im not really seeing a huge victory for the 4th amendment. If he is such a protector of the 4th amendment, perhaps he should argue that a fishing expedition like that is never allowable.

But in many areas of the law we treat those who have been convicted of a felony different than those who have not been convicted felony. It's a very important distinction. People who have been convicted of a crime (should) have a different expectation of privacy than those who have been merely arrested.

 

Orin Kerr said on Volokh after this came down that this opinion isn't terribly interesting to academics, but it does have a lot of practical effects.

[Jenksismyhero]

Not really. If a general warrantless search is such a grave offense then it shouldnt matter.

 

In both scenario A and B, they have no evidence to connect me to any other crime, they are putting on complete fishing expeditions.

 

So its okay to fish, but only after the person has been convicted of a crime. Guess Im not really seeing a huge victory for the 4th amendment. If he is such a protector of the 4th amendment, perhaps he should argue that a fishing expedition like that is never allowable.

 

After conviction you're a criminal and lose some of your rights anyway, so I don't see a problem taking your DNA and comparing it to a national database. At least one hurdle (conviction of a crime) has been met. Here there is no hurdle. Presumably an arrest is required, but who knows where the cases will take us from here. Prior to a conviction you're not a criminal but someone who is 100% innocent. You shouldn't lose your 4th amendment rights before that.

 

What's worse is that the Court committed severe judicial activism by reading into an otherwise purposefully written statute to come up with the justification for this exception.

 

[Jenksismyhero]

So I guess my question(s) as the big government guy here are...

 

If the only thing this database is used for is "matching up the DNA of people arrested for crimes with people who are being hunted by authorities" (not used for other research or anything like that...)

 

And having such a database winds up being an effective law enforcement tool to help solve unsolved serious crimes like the 400,000 rapes with untested kits sitting around...

 

Why should I get up in arms about this?

 

The reasons to get angry about it seem to me to be based upon the database being used for something else other than its intended purpose. I'll grant that ain't good, but spell out the downside for me if that doesn't happen?

 

I think it's not only that we're relying on the government to keeps their promise for the use of the database, but also the potential for this sort of warrantless collection in other areas of society. As Scalia points out, if identification is an acceptable justification, why not take the DNA of all airplane passengers so that we can identify who is traveling? Why not take DNA of kids in school to keep track of who is in the public school system?

 

Think of what the dirty, immoral republicans could do if immigrants were forced to submit to DNA collection before entering the country!

[southsider2k5]

I want to go on record and predict no less than 400 posts in this thread.

[Soxbadger]

Balta,

 

That is why this entire ruling and argument is nonsense. At the end of the day you can get warrants for DNA. The person has been arrested/convicted, its simply going in front of a judge and saying:

 

"Your honor this person is a violent offender, we have reason to believe they may have committed other offenses and would like to do a search against outstanding crimes."

 

Judge says okay, and we move on. But that way there is some protection against the govt doing whatever it wants, there is a person who has to decide "okay that is reasonable."

 

That way we do not get a DNA search based on a parking ticket conviction.

 

Farm and Jenks,

 

And I simply do not believe that the 4th amendment was created so that previously convicted criminals would have less right to unreasonable searches. In fact historically speaking, these would likely be the people who would have been most needing of protection.

 

What good would it have been to have a 4th amendment, if the King can search your house every day because 1 time you were arrested for speaking out against the King?

 

The entire point of a warrant is to ensure that it is reasonable. I see no good reason why DNA (before or after conviction) has to be done without a warrant. Will DNA ruin? No Will it disappear? No Will it change? No

 

So there is basically 0 reason to skip the warrant step, except that its a hassle. And Im sorry but the 4th amendment shouldnt be completely eroded just because it hassles the govt.

[Balta1701]

I think it's not only that we're relying on the government to keeps their promise for the use of the database, but also the potential for this sort of warrantless collection in other areas of society. As Scalia points out, if identification is an acceptable justification, why not take the DNA of all airplane passengers so that we can identify who is traveling? Why not take DNA of kids in school to keep track of who is in the public school system?

 

Think of what the dirty, immoral republicans could do if immigrants were forced to submit to DNA collection before entering the country!

Based on my reading so far, the response would be that in the case of someone arrested for something you have a higher level of suspicion...but really, my other response is that I've stopped buying slippery-slope arguments. It seems much more reasonable to collect DNA samples for testing in the case of someone currently in custody than it does to test schoolchildren because it seems highly unlikely that there's a reasonable suspicion a schoolchild would be in that database.

 

I'm not sure that a DNA test for a criminal match prior to citizenship would be the worst idea either. Again, it depends on what its being used for, if the law says you want to keep people with a certain background out of the country that's not a very good use, but hell, our immigration quota system already does that without the DNA test.

[Balta1701]

That way we do not get a DNA search based on a parking ticket conviction.

I'm still unconvinced about why this is obviously a bad thing.

[Soxfest]

Think of what the dirty, immoral republicans could do if immigrants were forced to submit to DNA collection before entering the country!

They would cry foul to high heaven.

[EvilMonkey]

I'm still unconvinced about why this is obviously a bad thing.

I thought there was a provision for just that in one of the many immigration bills proposed not too long ago.

[Soxbadger]

I'm still unconvinced about why this is obviously a bad thing.

 

Because ultimately you either trust the govt or you do not. Historically govts have never been kind to my people. How much easier would it have been for the Nazi's to catch Jews if they had a DNA database and could search for "Jew genes."

 

Its not obviously a bad thing. I think most people like the idea that DNA will catch criminals. I think people like that fingerprints catch criminals.

 

But what happens when the govt uses those tools against us?

[EvilMonkey]

Because ultimately you either trust the govt or you do not. Historically govts have never been kind to my people. How much easier would it have been for the Nazi's to catch Jews if they had a DNA database and could search for "Jew genes."

 

Its not obviously a bad thing. I think most people like the idea that DNA will catch criminals. I think people like that fingerprints catch criminals.

 

But what happens when the govt uses those tools against us?

Like IRS records?

[Balta1701]

Because ultimately you either trust the govt or you do not. Historically govts have never been kind to my people. How much easier would it have been for the Nazi's to catch Jews if they had a DNA database and could search for "Jew genes."

 

Its not obviously a bad thing. I think most people like the idea that DNA will catch criminals. I think people like that fingerprints catch criminals.

 

But what happens when the govt uses those tools against us?

Like I said, I'm the big government person here, so I'll say again..."to do what?"

 

What would the government do with this information that is so inappropriate?

 

You could obviously come up with some answers, but DNA doesn't tell who you are, it doesn't tell what I'm thinking right now, it doesn't tell when I'm going to decide to go home. The government already is probably collecting this post and having it combed through for keywords at the NSA facilities and that tells a helluva lot more about me than my DNA.

 

The thing that I would really oppose is having the results of DNA tests available to health insurance companies. I'll grant that one, but you're not necessarily going to sequence an entire person's genome to do a criminal test match (in fact that ought to be really unnecessary).

[Jenksismyhero]

Balta,

 

That is why this entire ruling and argument is nonsense. At the end of the day you can get warrants for DNA. The person has been arrested/convicted, its simply going in front of a judge and saying:

 

"Your honor this person is a violent offender, we have reason to believe they may have committed other offenses and would like to do a search against outstanding crimes."

 

Judge says okay, and we move on. But that way there is some protection against the govt doing whatever it wants, there is a person who has to decide "okay that is reasonable."

 

That way we do not get a DNA search based on a parking ticket conviction.

 

Farm and Jenks,

 

And I simply do not believe that the 4th amendment was created so that previously convicted criminals would have less right to unreasonable searches. In fact historically speaking, these would likely be the people who would have been most needing of protection.

 

What good would it have been to have a 4th amendment, if the King can search your house every day because 1 time you were arrested for speaking out against the King?

 

The entire point of a warrant is to ensure that it is reasonable. I see no good reason why DNA (before or after conviction) has to be done without a warrant. Will DNA ruin? No Will it disappear? No Will it change? No

 

So there is basically 0 reason to skip the warrant step, except that its a hassle. And Im sorry but the 4th amendment shouldnt be completely eroded just because it hassles the govt.

 

Well, let's be fair, the drafters never knew about DNA testing so I dunno about what they thought really matters here. At the end of the day we're talking about a precedent being set that a specimen from your body can be taken after an arrest solely for the purpose of identifying you. It's simply not the same as photos or fingerprinting which are to identify you as a specific person for the purposes of the present arrest.

 

But I agree that ideally you should have to get a warrant for both situations.