Is DNA sampling during arrest a search? SCOTUS to rule

[EVT1]

usnews.nbcnews.com/_news/2013/06/01/18631808-enormous-repercussions-as-court-weighs-dna-sampling-during-arrests?lite

Just when I thought most people would be against this I made the mistake of reading a few comments- every thing from Bush and Obama to political correctness to the old 'I have nothing to hide' arguments and a nice new idea- DNA profile people on public assistance (ostensible since they are are all criminals).   

Anyone at all think this is a good idea?  I can see post conviction testing, testing with a warrant, etc.  But just to put you in a database- no thanks.  Not a fan of a police state.  The 4th amendment means something in this country- and it applies to cops with q-tips IMO.

[billisonboard]

Difficult decision. 

I can see how it is akin to fingerprinting.  Why fingerprinting is acceptable and DNA not is a question I struggle with answering.  I don't see routine "post conviction testing" as reasonable if it is not okay for it to be part of the arrest routine (i.e. "Now that we got you for one thing, we are going to search to see if we can get you on anything else.")

The idea of limiting it to those arrested for certain violent crimes is appealing but creates the slippery slope argument.

Difficult decision.

[EVT1]

It does have some appeal if you trust the government and true it is not very intrusive- so if that is the route we want to go why not put everyone in the database at birth since it is more of an ID scheme?  Ends all questions of ID, paternity, etc. down the road, easier to solve crimes-etc.  Put that to a vote at least.

[billisonboard]

Jun 2, 2013 19:31:21 GMT -5 EVT1 said:

It does have some appeal if you trust the government and true it is not very intrusive- so if that is the route we want to go why not put everyone in the database at birth since it is more of an ID scheme?  Ends all questions of ID, paternity, etc. down the road, easier to solve crimes-etc.  Put that to a vote at least.

Nah, I like the idea of the Supreme Court deciding if people who have put themselves into the position of probable cause of having committed a crime should routinely give a DNA sample.

[Tennesseer]

Supreme Court upholds DNA swabbing of people under arrest

The Supreme Court on Monday upheld the police practice of taking DNA samples from people who have been arrested but not convicted of a crime, ruling that it amounts to the 21st century version of fingerprinting.

The ruling was 5-4. Justice Antonin Scalia, a conservative, joined three of the court’s more liberal members — Justices Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan — in dissenting.

The five justices in the majority ruled that DNA sampling, after an arrest “for a serious offense” and when officers “bring the suspect to the station to be detained in custody,” does not violate the Fourth Amendment’s prohibition of unreasonable searches.

Under those specifications, the court said, “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.”

Scalia’s siding with the liberals reflects his growing concern over the past five years about privacy, said Tom Goldstein, the publisher of SCOTUSblog, who teaches at Harvard Law School and is a Supreme Court analyst for NBC News.

usnews.nbcnews.com/_news/2013/06/03/18722878-supreme-court-upholds-dna-swabbing-of-people-under-arrest?lite&ocid=msnhp&pos=1

[EVT1]

Wow- what a blistering dissent.  Pretty much destroys the opinion- but that's Scalia for you.  He's a smart ass.

Good points made though.

[mmhmm]

I'm glad the SCOTUS had to make this decision and not I.  It isn't an easy one, as far as I'm concerned.  There's a lot to be gained by taking DNA samples (solving previously unsolved crimes, helping to prevent false convictions, etc.) but there's also the matter of invasive violation of privacy.  Frankly, it leaves me on the fence.  I can, however, see why the SCOTUS ruled as it did.

[Opti]

Jun 4, 2013 6:12:31 GMT -5 deminmaine said:

I have tried to see the harm in this and frankly, I don't.  I do see several advantages in having a national data base of all people's DNA, and I really do not see it as an invasion of privacy.

When we were little kids in school we all had our fingerprints taken by the police and we had our vaccination shots.  I don't really see this as being any different.

I see the harm. Since scientists have linked genetic markers with tendencies for certain health conditions even if it isn't used to discriminate against people for potential health issues in government employment its possible certain people might be forced into psych drugs only because they have a genetic tendency to mental illness per current research.

If you are a crooked cop it would now give you a huge database of possible people to frame for your crimes. You can just go visit the local drunk or spouse abuser, walk off with some DNA, plant it and you'd be good to go. While crooked cops and others have historically framed others for their crimes it would be much harder to get the real perp and prove the DNA evidence was planted.

[EVT1]

Jun 4, 2013 6:12:31 GMT -5 deminmaine said:

I have tried to see the harm in this and frankly, I don't.  I do see several advantages in having a national data base of all people's DNA, and I really do not see it as an invasion of privacy.

When we were little kids in school we all had our fingerprints taken by the police and we had our vaccination shots.  I don't really see this as being any different.

That's why I was saying start a national database at birth and vote on it if that's what we want.

But read the dissent- fingerprints are akin to a photograph.  DNA is a part of your body that is taken away by the police- seized- and that is a 4th amendment violation all the way without a warrant.  They claim it is to ID the suspect- but as Scalia pointed out- they already know the ID- what they are really doing is trying to ID unknown DNA.  As as he also said- you can solve more crimes by searching all of the houses too.

It's worth reading- might change your mind.

[fairlycrazy23]

This is a very tricky one, it is not very intrusive, less than getting fingerprinted the old fashion way.
But it can be used for a lot more than just confirming who you are.

In a perfect world, this data would never be misused and could actually be very beneficial in research, too bad we don't live in a perfect world (well, probably in a perfect world there would be no crime or disease , so maybe I really mean , a more perfect world)

[Opti]

This is a very tricky one, it is not very intrusive, less than getting fingerprinted the old fashion way.
But it can be used for a lot more than just confirming who you are.

Exactly. Can you imagine needing to do this at the DMV and when opening bank accounts
as well?

[billisonboard]

Anyone have a link to the actual ruling and dissent?  I can't find one.

[EVT1]

www2.bloomberglaw.com/public/desktop/document/Maryland_v_King_No_12207_2013_BL_143974_US_June_03_2013_Court_Opi

Highlights:

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).

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.

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.

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

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

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.

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.


* He's a snarky one

[fairlycrazy23]

It does seem like the only reason to do swabbing at the time of arrest is to build the database; if they actually need a dna sample for the specific case itself they will have amble opportunity to get it.

I can see the not to distant future...someone gets murdered they find DNA and it doesn't match anyone, but does closely match a small subset, the police then start to look at siblings/parents of this subset who are not in the database and this eventually leads them to real murderer, the outcry to increase size of the db is overwhelming and everybody has to get dna tested, of course you can opt out, but they make it condition of air travel or car travel or public school or something, or just tax you for not getting a dna test, since having a broad database of genetic data could help address public health issues

I know that a lot (most) dna testing only samples a very few markers and even siblings who share half there dna could actually NOT share any markers, I could see that leading to more comprehensive testing

[billisonboard]

I read the majority decision and agreed with it.  Then I read the dissent and I agreed with it. 

[mmhmm]

Jun 4, 2013 16:31:10 GMT -5 billisonboard said:

I read the majority decision and agreed with it.  Then I read the dissent and I agreed with it. 

*chuckle*  Wanna join me up here on the fence, billis?  I'll skootch over.

[billisonboard]

//site blocked due to malware - dang, it is a great picture - - How about this site?

[mmhmm]

Ooowwww!  I ain't gonna sit on that one!  I got a nice one with wide, smooth wood!

[djAdvocate]

at heart i am against this ruling, but i can also see why it went the way it did.

[Sum Dum Gai]

This is going to be one of those things where if you've been the victim of an unresolved crime because the DNA collected didn't match anyone you're going to be all for it.  If not it seems like too slippery a slope.

It's a moot point for me.  I'm former military, the man has had my DNA on file since my second week in basic training.  Purely to identify remains if I were killed in action of course, and I'm sure they didn't share that database with anyone and tell the FBI or other law enforcement agencies to go eff themselves if they ask for access to it. 

[fairlycrazy23]

As a hypothetical question, would people be for collecting dna samples like this and (maybe) even extending it to collecting them at say at the dmv, if you knew 100% that the dna would only be used for identification purposes, either as an investigation of a crime or to id the body?

[djAdvocate]

Jun 5, 2013 9:09:30 GMT -5 fairlycrazy23 said:

As a hypothetical question, would people be for collecting dna samples like this and (maybe) even extending it to collecting them at say at the dmv, if you knew 100% that the dna would only be used for identification purposes, either as an investigation of a crime or to id the body?

i think that is actually the really big question.  or how about this: at the hospital, as an adjuct to your birth certificate.

this is a troublesome ruling in that in can't figure out what the "limiting factor" is.

[Sum Dum Gai]

As a hypothetical question, would people be for collecting dna samples like this and (maybe) even extending it to collecting them at say at the dmv, if you knew 100% that the dna would only be used for identification purposes, either as an investigation of a crime or to id the body?

Isn't that all law enforcement DNA databases are used for now?  I don't think they release the information to researchers or anything.

[genericname]

From: www.fbi.gov/about-us/lab/biometric-analysis/codis/codis-and-ndis-fact-sheet

Frequently Asked Questions (FAQs) on the CODIS Program
and the National DNA Index System

CODIS
Q: What is CODIS?
A: CODIS is the acronym for the “Combined DNA Index System” and is the generic term used to describe the FBI’s program of support for criminal justice DNA databases as well as the software used to run these databases. The National DNA Index System or NDIS is considered one part of CODIS, the national level, containing the DNA profiles contributed by federal, state, and local participating forensic laboratories.
CODIS DNA Databases
Q: How do these DNA databases using CODIS work?
A: For example, in the case of a sexual assault where an evidence kit is collected from the victim, a DNA profile of the suspected perpetrator is developed from the swabs in the kit. The forensic unknown profile attributed to the suspected perpetrator is searched against their state database of convicted offender and arrestee profiles (contained within the Convicted Offender and Arrestee Indices, if that state is authorized to collect and database DNA samples from arrestees). If there is a candidate match in the Convicted Offender or Arrestee Index, the laboratory will go through procedures to confirm the match and, if confirmed, will obtain the identity of the suspected perpetrator. The DNA profile from the evidence is also searched against the state’s database of crime scene DNA profiles called the Forensic Index. If there is a candidate match in the Forensic Index, the laboratory goes through the confirmation procedures and, if confirmed, the match will have linked two or more crimes together. The law enforcement agencies involved in these cases are then able to share the information obtained on each of the cases and possibly develop additional leads.
Q: What happens after there is a hit in the DNA database?
A: CODIS was designed to compare a target DNA record against the DNA records contained in the database. Once a match is identified by the CODIS software, the laboratories involved in the match exchange information to verify the match and establish coordination between their two agencies. The match of the forensic DNA record against the DNA record in the database may be used to establish probable cause to obtain an evidentiary DNA sample from the suspect. The law enforcement agency can use this documentation to obtain a court order authorizing the collection of a known biological reference sample from the offender. The casework laboratory can then perform a DNA analysis on the known biological sample so that this analysis can be presented as evidence in court.

I don't know about the ruling. It seems invasive on one hand, but on the other I know that everyone is constantly leaving DNA samples behind through shedding skin, contact DNA, etc. Obtaining DNA is not like taking a blood sample, and it isn't like taking a fingerprint. It's somewhere in between. Is it a search once you are in custody, or is it merely obtaining biographical data? Seems the SCOTUS likens it to biodata. I will have to think on it more before I can agree with either side.

[fairlycrazy23]

Jun 5, 2013 11:29:05 GMT -5 Sum Dum Gai said:

As a hypothetical question, would people be for collecting dna samples like this and (maybe) even extending it to collecting them at say at the dmv, if you knew 100% that the dna would only be used for identification purposes, either as an investigation of a crime or to id the body?

Isn't that all law enforcement DNA databases are used for now?  I don't think they release the information to researchers or anything.

Would you be ok if they did release all the dna data to researches, obviously without names attached. (i don't actually think the currently existing CODIS database would be very useful for any research, simply because of the limited amount of data collected).

[AgeOfEnlightenmentSCP]

The question isn't whether or not it's a search- of course it is. The question for me is- what happens to it? I'm fine with this- if all they do is check it against the existing database. However, a mere "arrest" shouldn't be enough to ADD it to the database. That should happen when it is relevant to a CONVICTION.

[Sum Dum Gai]

Would you be ok if they did release all the dna data to researches, obviously without names attached. (i don't actually think the currently existing CODIS database would be very useful for any research, simply because of the limited amount of data collected).

Like I said, I'm already in the DoD DNA database and I don't particularly care if they did release the information to researchers as long as they scrubbed the identity of the donors first.  I would say I don't mind that either but I don't want my health insurance company to find out I have a 90% chance of developing Alzheimers or something and preemptively dropping my coverage.

[AgeOfEnlightenmentSCP]

Jun 6, 2013 1:19:41 GMT -5 Sum Dum Gai said:

Would you be ok if they did release all the dna data to researches, obviously without names attached. (i don't actually think the currently existing CODIS database would be very useful for any research, simply because of the limited amount of data collected).

Like I said, I'm already in the DoD DNA database and I don't particularly care if they did release the information to researchers as long as they scrubbed the identity of the donors first.  I would say I don't mind that either but I don't want my health insurance company to find out I have a 90% chance of developing Alzheimers or something and preemptively dropping my coverage.

Wouldn't you agree that a case could be made that your insurance company is entitled to know about legitimate issues that would effect the desirability of underwriting a given risk?  Wouldn't you say that it might be argued that concealing this information might constitute insurance fraud?  It's a brave new world- and one that's probably coming.  I'm just posing the question.

[EVT1]

Question answered- you ever see Gattaca?

You think our health care system is shitty and expensive now- let insurance companies use DNA profiles in their underwriting.  Just that many more people they would love to toss onto the government.  Is it fair- sure- if your goal is to tailor insurance prices individualy and price the majority of the country out of the market, to end group plans and negotiation.  Of course it would also be fair for insurance companies to reassess those policies- say annually or after any 'adverse event' too, would it not?  If you really want a government take over that would be a good step in making it a reality.

[Sum Dum Gai]

Wouldn't you agree that a case could be made that your insurance company is entitled to know about legitimate issues that would effect the desirability of underwriting a given risk?  Wouldn't you say that it might be argued that concealing this information might constitute insurance fraud?  It's a brave new world- and one that's probably coming.

No.  The whole point of insurance is to pool risk.  If we have super super tailored individual plans there's literally no point to insurance.  You know up front roughly how much your health needs going to cost.  Whatever the insurance company is charging to cover you, minus their profit margin.  At that point you might as well pay out of pocket.