Horrifying Supreme Court Ruling Lets Police Collect DNA Because You Might Just Be A Horrible Criminal
from the 4th-amendment-is-dead dept
I had a busy day on Monday, so it took a bit of time for me to finally get around to reading the full Supreme Court ruling in the Maryland v. King case, in which the court ridiculously ruled that law enforcement can take DNA samples from everyone arrested for a "serious" new crime in the hopes that it might help solve old crimes. We've discussed this issue in the past, but the reasoning of the majority ruling in the Supreme Court is rather horrifying. It's interesting to see that the court did not split along its "traditional" lines. Scalia split with Alito, Thomas and Roberts -- who often form a single voting block, while Breyer also was on the other side of his more natural allies, Ginsburg, Sotomayor and Kagan. Kennedy is the usual "swing" vote, and wrote the decision here, decimating the basics of the 4th amendment. I mean absolutely decimating it.Kennedy tries to argue that taking a DNA sample from someone arrested is a perfectly natural part of the process of identifying them, but he goes much, much further. Just the fact that he uses this line is when you know the 4th Amendment is in trouble:
To say that the Fourth Amendment applies here is the beginning point, not the end of the analysis.In other words, I'm about to come up with a bunch of rationalizations as to why we can ignore the 4th Amendment here. The basic argument is a sort of blanket "well, the police need to identify people" argument:
The legitimate government interest served by the Maryland DNA Collection Act is one that is well established: the need for law enforcement officers in a safe and accuÂrate way to process and identify the persons and possessions they must take into custody.Yes, but that's wholly different from taking a DNA sample from them to then run through a giant database of unsolved crimes to see if you (or, in some cases, a relative) might possibly be implicated. And, then think of where this quickly gets you when the majority makes the following statement:
An individual's identity is more than just his name or Social Security number, and the government's interest in identification goes beyond ensuring that the proper name is typed on the indictment. Identity has never been considered limited to the name on the arrestee's birth certificate. In fact, a name is of little value compared to the real interest in identification at stake when an individual is brought into custodyHmm. If an identity goes beyond just your name and basic stats info, then what might it include?
A suspect's criminal history is a critical part of his idenÂtity that officers should know when processing him for detentionYeah, but a person's hobbies, interests, writings, possessions, etc may also be a part of someone's identity, and yet those tend to be protected by the 4th Amendment. So what gives? As Julian Sanchez points out, couldn't the identical argument be used to say that any law enforcement should be able to also read an arrestee's email without a warrant? After all it would give them more "context" about his "identity."
This should be a hint: if your Supreme Court argument can be used to basically wipe out the entire 4th Amendment, it's probably not a very good argument.
In response, Scalia's dissent is well worth reading. It's blistering in its criticism of the majority opinion and very much on point.
The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment. Whenever this Court has allowed a suspicionless search, it has insisted upon a justifying motive apart from the investigation of crime.Scalia points out that allowing searches unrelated to a specific crime have only been allowed in very special circumstances, and this ruling blows that out of the water. Scalia notes that the whole claim that the argument that these DNA searches are just for identifying really does rip to shreds the basics of the 4th Amendment:
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.
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.Furthermore, Scalia points out that the "identifying" claim is completely bogus because no one was using DNA to better identify the arrestee. It looks at the specific case of King, and notes multiple ways in which the DNA testing would have obviously been done differently if the purpose had been simple identification. They made no rush to sample the DNA, and, in fact were forbidden to by law, until he was arraigned 3 days later. And then it took months for anything to actually be done with the DNA sample.
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.Furthermore, Scalia quotes the actual law in question, which lists out the only reasons why DNA evidence may be collected... and "identification" is not one of 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.” ... (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.Scalia concludes by pointing out the worst part of all of this: once convicted, it's established that a criminal can have their DNA sampled. And thus, this really only matters for one group: those innocent of the crime they were arrested for.
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 jealouslyAnd, finally, Scalia points out, as we did above, that the basic logic of the majority more or less justifies almost any search.
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.The 4th Amendment was already on the ropes before this. It's pretty depressing to see the Supreme Court look to give it the knockout punch like that.
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Filed Under: 4th amendment, constitution, dna, justice kennedy, justice scalia, privacy, supreme court
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1) "Your DNA isn't private, you literally leave it everywhere you go, by shedding skin cells"
- Yes, but those skin cells that flake off of you aren't in the same league of quality as a swab taken from the inside of your mouth. Random bits of DNA that are found everywhere are not used as evidence because they are so easily contaminated.
2) "We take fingerprints already, why not DNA testing?"
- Because fingerprints and DNA are two completely different things. A fingerprint identifies you as you. That is it. DNA does that AND MORE. DNA reveals who you are and who you are related to. It can reveal whether you have a genetic predisposition to certain diseases etc.
3) "It's used to identify someone, which a cop does want to know when they arrest someone".
-As noted above, in the very court case the Supreme Court were looking at, THEY DID NOT USE DNA TO IDENTIFY. The DNA sample sat in a lab for weeks and months, long after the initial time of arrest of the perp. Identifying someone through DNA is a long and cumbersome process. It's not as simple as taking a sample and waving a Star Trek-style tricorder at it, then a photo and name pops up on the screen.
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#2 - Are fingerprints taken during arrest used to match you to unsolved crimes? My assumption is that is the current case. If so, then taking DNA for the same reasons is no different.
#3 - Same argument for #1 applies. You describe 'today' and perhaps that's valid, but it won't be all that long before star trek tricorder type tech IS available and can do what you say is impossible. Basing your objections on the state of tech rather than the actual legal arguments is rather like the Music Industry saying pre-Napster internet sharing wasn't a problem.
I just don't see the issue with checking people who've been arrested against the list of unsolved crimes.
I DO see (and have) a problem with said arrestee's information being stored forever if they're acquitted but the 2 issues are very different.
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Someone correct me if I'm wrong here, but my understanding is fingerprints are taken to enter you into a database so that if you commit a future crime they have a way to match your identity and prior criminal history rather than run the fingerprints through a database to try to connect you to unsolved crimes (though I'm sure that's probably done as well...).
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Now we just need to get Congress on board with that idea without getting them hungry and breaking for lunch...
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If you're acquitted or charges are dropped, you shouldn't still be kept in the list of people who've committed crimes.
But checking arrestees against open unsolved crimes is something I don't have a problem with whether via fingerprints or DNA.
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How about convictions?
It would be nice to live in a world where we are innocent until proven guilty again instead of having to prove our innocence.
If we really need to stop/solve all crimes, how about we start at the top where it all "trickles down" from?
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Police can't get a conviction for "disorderly conduct" or whatever they want to use to justify stop & frisk? Check their DNA in the database... ah, it seems you spit on the sidewalk back in 1992! Arrest justified!
http://www.infowars.com/florida-man-arrested-for-spitting-on-sidewalk/
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http://boingboing.net/2013/06/06/new-york-senate-makes-it-a-fel.html
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The same can be said for fingerprints.
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Thus a rapid check of fingerprints is more likely confirm the identity of the person and incidentally possibly link the person to an unsolved crime. DNA samples have only been required for convicted felons in most jurisdictions so the database has far fewer entries.
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Because you don't happen to be racially profiled. What we're creating is a massive database of people falsely convicted for crimes and then hold their DNA just in case they commit a crime.
The DNA is held for 50 years by the FBI. You add that to the NSA spying, the fusion centers, and the massive amounts of sentencing rules that are vague and put you in prison for 50 years.
You have a slave/police state. You have a racially motivated justice system that is looking for minorities to exploit instead of assist. You have imperialism going on in America against brown skinned people and it's downright disturbing that this has been allowed.
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For this to matter, your DNA would have to be at the scene of the crime. Combined with the fact that the mere presence of DNA isn't an automatic guilty sentence, but just another form of evidence, and I really fail to see the problem here.
No matter *how* racist the cop, you'd still need to have your DNA at the scene of a crime for this to hurt you; and if your DNA is at the scene of a crime, the cops *should* question you about it.
Where's the police state part come in?
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And if I have a bloody axe in my basement, the cops *should* question me about that, too. Except they shouldn't even know about it, because they shouldn't be searching my basement without a warrant just because I was arrested for something entirely unrelated. They also shouldn't be in my BODY without a warrant unless they have a good reason.
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Your analogy makes no sense. If you're arrested for burglary and your fingerprints match those found on a bloody axe from a crime 4 years ago, you shouldn't be questioned about the bloody axe?
The fact that your DNA is matched with DNA found at an unrelated crime scene is a *fact*. There can be a logical explanation for it, of course, but it's still a new piece of evidence in a crime, and should be investigated. *Exactly like fingerprints.*
Where is the police state?
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Now, if that DNA database were shared with outside organizations, or used to determine medical health, etc, then I agree with you that this is unacceptable, but that's a problem with the database, not the act of taking DNA to identify a person.
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Did you READ the dissent? Especially around page 46, like I cited?
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DNA should not be collected without a conviction because these days the police can arrest anyone for anything. The charges may not hold water, but its a moot point once they've violated your rights and put you in a biometrics database. How can you possible be ok with this?
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Of course, by doing it this way, they're completely admitting that they aren't actually doing it to identify the person. If you were truly doing it for identification you'd want the results right away, instead of mandating that the process not even start until after the person is probably out on bail.
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This is ironic, because the Supreme Court here is trying to bend over backwards to say that this is NOT the reason. Because such a reason would not support a warrantless, suspicionless search of someone who is merely arrested.
In fact, this is the entire reason the Supreme Court is wrong here. Everyone knows the purpose of taking DNA in this case was not identification. The dissent goes into great detail on why, but I think you already know this.
"#2 - Are fingerprints taken during arrest used to match you to unsolved crimes? My assumption is that is the current case. If so, then taking DNA for the same reasons is no different."
See page 46 for how fingerprints are different than DNA.
"You describe 'today' and perhaps that's valid, but it won't be all that long before star trek tricorder type tech IS available and can do what you say is impossible."
As Scalia says on page 48:
"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."
And I leave you with tis:
"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."
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And will that extra data about who you're related to and what diseases you're more likely to get come in handy at solving any crimes? No.
Seeing as they have cops take finger prints of children when they're in elementary school for helping to solve future crimes, I don't see how DNA is much different. If DNA tracking is wrong, then so is finger printing innocent people. It doesn't make sense for one to legal, and the other illegal.
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There's no such thing as 'probably cause'.
The term is probable cause.
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Incorrect. Identifying close blood relatives can be very useful when solving crimes.
Seeing as they have cops take finger prints of children when they're in elementary school for helping to solve future crimes, I don't see how DNA is much different.
That is not why most parents have their children finger printed. They do it to that if the child is lost or abducted, or if there is a dispute over who's child it is, they can be identified correctly.
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Re: Privacy & fingerprints
1) Just because I leave DNA all over the place doesn't mean I intend to, have no interest in it, or mean it's "public". Many things are and will be technologically possible that invade my privacy - this doesn't automatically invalidate any expectations of privacy that I have. (We may have to think about new justifications for that expectation, or revise the expectation itself, given new technologies. But that's different.)
2) Fingerprinting children is done *with the consent of parents/guardians*. And though the intent of those parents isn't relevant to the consent issue, most (I'd expect) do it not to solve crimes but to recover their children in the awful circumstance of abduction, etc. (I want my children found first. Catching the criminal is a distant second.) Therefore, I see no inconsistency here.
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The issue is whether a warrant should be required to obtain involuntary DNA samples of a suspect.
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2) DNA analysis takes a lot of time and determining more specific characteristics takes even longer. Without a specific gene-determination, DNA is not that much more than a fingerprint. Determination of who you are related to is a question of getting DNA from relatives. Therefore basic DNA sequences are of only little more value than fingerprints.
3) This very court case should not in itself tell exactly if DNA is relevant or not in other situations. It is giving an idea about the need for specific procedures in storing DNA and how it should work as a limited tool. However, the precedence should be seen as a need for more procedural laws on the police or three-letter salads rather than a simple shotdown of the fourth ammendment.
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For what it's worth, Scalia points out in his dissent that the court has never really tested the question of fingerprinting. So even the assumption that it's constitutional is not necessarily settled:
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The main example that comes to mind is the Amanda Knox trial/Meredith Kercher witch hunt in Italy a few years back. Amanda Knox and her then boyfriend Raffaelle Sollecito were initially convicted and sentenced to 26 (Knox) and 25 years (Solletio) in prison for allegedly murdering British exchange student Meredith Kercher, a major part of which involved a knife allegedly found in Sollecito's apartment that had a DNA sample "compatible with Kerche's profile" on the blade and Knox's DNA on the handle (she used the knife to cook), as well as traces of Sollecito's DNA on the bra clasp of Meredith Kercher.
The two were locked up for two years until 2011 when it came out during appeal that the chain of evidence had not been followed for the case, and that the police investigation hadn't followed the international standards for DNA sample collection, allowing th evidence to be contaminated.
[Of course, it didn't help matters that the prosecution of the case did everything it its power to assassinate the character of Amanda Knox. I kid you not, the prosecutor's initial proposal for motive was that Meredith Kercher was sacrificed as part of a "Satanic ritualistic orgy", before backing down to the slightly-less slanderous claim of the motive as "sex game gone wrong". And some people say that the American court system is messed up...]
Point is, DNA evidence is by no means absolute proof that a person is guilty of any crime. Innocent people have already suffered because of contaminated DNA evidence.
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Anyone shocked?
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Will you be locked up in a FEMA camp?
Say goodbye to your golf courses, the UN is coming for those too.
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http://www.tullahomanews.com/?p=15360
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Oh my ... how things change.
Now they are telling us to not be concerned about the potential for abuse regarding collection of dna samples. Yeah, right.
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Abuse of a system does not mean a system shouldn't be used. It means we should fix the system though the issues with post 9/11 security theater are vast.
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Who stated that? 51 seatbelt laws were passed in 50 states plus the district of Columbia. I remember when it passed in Texas--I had been driving 9 months. The law had a 4-month grace period where you would only be granted a warning, but on Dec 1 1985, everyone was told if they weren't wearing a seatbelt, they'd be pulled over and ticketed. My dad was ticketed twice within the first year of the law.
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Fingerprints?
DNA is not any more private than your fingerprints, no invasive process is required. In fact, the collecting of DNA is actually much quicker and easier than finger printing.
Scalia's arguments are a little thin here. Nobody is forcing everyone in the US to submit a DNA sample, in the same manner that people are not asked to submit fingerprints or take a mug shot just for fun. His examples suggest a broad collection of information without reason. His logic would make collecting photos and finger prints equally invasive.
Since we already know that is NOT the case, there is little left here to argue.
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Re: mugshots
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Re: Fingerprints?
Yes there is. I know, taking a cheek skin cell does not harm you in any way, but it is still literally invasive, you are being told to put something in your body. I don't care how benign it is, if something is going into my body, I and I alone am the final judge on whether or not to do it (about the only exception I can see for this would be forcing a Jehovah's Witness to accept a blood transfusion in a life threatening situation or something along those lines).
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DNA
Anyone who wants some of my DNA can have it.
What's the BFD with DNA? It doesn't hurt to give a sample. I don't have a limited supply of DNA.
It's not like the scene from Dr. Strangelove where General Jack D. Ripper was horrified that the dreaded commies would "sap and impurify" Americans' precious vital fluids.
My DNA sample might show that my sister is my sibling or that my ancestors came from eastern Europe or that I didn't leave blood or semen at a crime scene. Horrors!
I have much more to be concerned with than accurate identification.
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Used so often to justify the tyranny for false security.
Everyday we see trumped up charges, mis-carrage of justice, and destruction of peoples lives for no other reason than some one needed to make a their numbers look better.
So when you unintentitional and unexpectedly run afoul of the law should we sit back and say "good luck" or do you expect us to run to your defense because now its different, now its not some random person but you with his butt on the line?
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Well, turns out Mike is a Luddite against "technology".
This will soon become de facto at every traffic stop, even though at the moment, applies to "serious" crimes.
However, states and courts are not the last word on law. Common law as stated by the people is. Yes, there are difficulties getting our "servants" to stop extending tyranny, and more to roll it back, but it starts with simply not going along with any of this "identifying", surveilling, and tracking.
If you don't want to be invasively tracked with a DNA database, then you should even more oppose the tracking that Google does every day. It's all BAD, aimed at controlling you. Google tracks you outside of law with hidden means, but it's easily stopped with Noscript (removing Google from whitelist), and a hosts file. Take the time NOW to install those to say you're not just an economic unit for the Google-monster to munch on. ... Or, just continue to drift into police state pretending it doesn't exist.
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w0w
typically I troll TD to report idiot rantings, but out of the blue, you actually stayed on topic, had something logical to add, and didnt berate anyone in the process.
1 internets for you.
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Re: w0w
They can't make money on jailbirds, they need you to be free so they can farm you for your info. That's the price of a "free" service.
This is why Google opposes censorship, etc. The last thing they want is to have the cows flee the pasture.
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Re: w0w
I dunno. That last paragraph sounded more like tinfoil hat style anti-Google ranting to me.
Google may or may not be doing all these things that Blue is postulating, but it's immaterial. Google is opt-in. If you don't like what they are doing, don't use them.
It's almost like Blue has fallen for the false axiom that "Google equals the internet". It's not "the internet" any more than AOL or Yahoo was in their heydays.
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im not a tinfoil hatter, but I do respect my own privacy, and take considerable measures to ensure my anonymity is anonomous. not for paranoid reasons, but because i believe information is mine to divulge, not to be extracted.
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Anyone who wants some of my DNA can have it.?? !!
Then when it becomes illegal to have red hair, or some gene that no one will insure (parkinsons or religious gene or whatever) you are dooming them. Your DNA will be sold to medical insurance companies who will adjust their insurance.
SO this is not about YOU its about all your descendants!
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Re: Anyone who wants some of my DNA can have it.?? !!
...including the ones you didn't know you had until the DNA proof! :)
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Sad to say
Actually it is worse.
Firstly you get your DNA collected if arrested on suspicion of any recordable offence.
Second, the police can (and do) arrest for almost any reason they can think of.
Thirdly, the new laws in this country are made such that almost any offence is recordable. i.e. Two years in prison for selling a bicycle without a bell.
Your DNA is kept even if you are aquitted of any offence, or not even charged with any offence. About the only means of getting your DNA off the database is to prove the arrest was illegal.
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Identical twins do not have the same fingerprints which is why they are superior in many respects for identification.
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That would be awfully stupid, since people can change what's on the strip. (But on second thought, that doesn't mean they aren't doing it that way...)
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Bad decision
The majority claims that the DNA can be taken without a warrant for purposes of identifying the person arrested. Scalia shows how that could not POSSIBLY be the reason in this case:
"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."
In case you missed that: The law authorizing the taking of DNA specifically forbids it be taken for any purpose not stated in the law (actually making it a crime to do so), and identification of an arrestee is not listed as a purpose.
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This will be revisited...
Actually now that I think about it, states can actually do that themselves. This decision doesn't invalidate state laws that could be passed against it. It merely states that it is not a constitutional issue. If the Maryland Supreme Court had decided their case based on some other reasoning other than it being a violation of the 4th amendment, there would be no reason for it to go to the Federal Court for reversal.
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4th
> the decision here, decimating the basics of the
> 4th amendment. I mean absolutely decimating it.
Well, at least that means we still have 90% of the 4th Amendment left...
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Prints
Why would one be constitutional and the other not? Both searches operates on the same level of probable cause, so I'm not sure why Scalia (and Mike) object to the latter but not the former.
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Re: Prints
- Can you avoid leaving fingerprints at a crime scene?
- Can you avoid leaving DNA?
And for the slow among you the answers are yes to the first and no to the second.
If you are unable to understand the difference, then you are the reason why the USA is going down the tubes with regards to civil rights.
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Re: Re: Prints
> taking fingerprints with DNA!
Sucks to be you, then, since you can't do anything to stop it.
> A couple of questions for you:
> - Can you avoid leaving fingerprints at a crime scene?
Yes.
> - Can you avoid leaving DNA?
Yes.
> And for the slow among you the answers are
> yes to the first and no to the second.
Weird, that there are so many crime scenes from which no suspect DNA is recovered.
You're full of crap.
> you are the reason why the USA is going down the tubes
> with regards to civil rights.
And you're apparently the reason why the USA is bottoming out in basic education and common sense.
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Eh.
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Yeah. Not sure.
Right now, DNA testing is slow and expensive, but we need to count on the possibility that it will become fast and cheap in our living future.
And yes, this is an advance of tyranny in the name of security, but it's not a big advance. And given that plenty of death-row convicts have been exonerated by DNA testing, this has the potential of making our system more just.
I as much as the next guy don't like the coppers in my home and in my phone unless they have a damn good reason (and a tidy warrant that specifies what they're searching for). But we also depend too greatly in the courts on witness accounts which are notoriously unreliable. The sooner we get to CSI where our courts depend on robust material evidence, and no witness accounts, the better.
Yeah, our cops and DoJ are owned by powers other than the people, but it wasn't always so, nor will it always be so, and this is well within the advancements that I'd want any law-enforcement service to have.
Not sure in these circumstances, though.
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Re: Yeah. Not sure.
I think you're totally confused here. If there's skin under the victim's fingernails and you already have enough other evidence to arrest someone, it will be trivial to get a warrant to get his DNA. But that is NOT what we are talking about here. We are talking about cases where not only is there no warrant, there is not even a suspicion that the DNA will be helpful in the case.
Imagine, for example, someone who is arrested for filming a cop with his cell phone. DNA is not going to do a single thing to help or hurt that case. You're only taking it to see if there's something ELSE you can get him for, without so much as a suspicion that he did something else.
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Re: Yeah. Not sure.
You mean they can't just drop it in a test tube, stick it in the centrifuge, let it run for a few minutes and then the results instantly pop up on the computer screen? CSI lied to us???
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I don't think the 4 Justices who voted for this really thought this through.
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It's crap like this, is why guns and ammunition are flying off the shelves in the US.
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i am not seeing the problem here......
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What if it's not kidnapping but "sedition"?
If it were only used to solve crimes like murders and kidnappings, then we might have a point, but our law enforcement does have a nasty habit of arresting people on non-laws and then looking for things that they can pin on you. And as was pointed out in a prior article law enforcement is more into just nabbing collars for points than seeing actual justice done.
Limitations on law enforcement exist partially because some laws are stupid, but also because there's a tendency to arrest and trump for non laws, e.g. driving while black, or contempt of cop.
In the meantime the arguments for and against taking a DNA swab as standard booking procedure would also apply to fingerprinting, which we tolerated because we believed it was law. What the Hell? Is this a matter of us ignoring a problem because we're used to it?
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Re: i am not seeing the problem here......
Arrest != Criminal. Peaceful protesters who are often arrested are a prime example of that.
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Re: Re: i am not seeing the problem here......
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Re: i am not seeing the problem here......
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I find Scalia's page 46 unpersuasive
DNA sampling could be made more like fingerprinting if all samples were classified by a standard profile of alleles, then destroyed, keeping only the profile as a kind of "DNA fingerprint". This would increase privacy by making it impossible for anyone to get hold of a DNA sample and analyze it for any purpose other than identification. Of course, it would also preclude future use on those samples of more-sophisticated DNA analysis techniques, whose reliability will probably be greater than today's.
The one feature of DNA fingerprinting that is fundamentally different from actual fingerprinting is the possibility of identifying familial partial matches. It is hard to imagine how this could be prevented in general, although such matches could, and probably should, be made inadmissible in court. It is also conceivable that they could be treated as fourth amendment violations, causing the results of any investigations based on familial matches to be inadmissible, as well.
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Re: I find Scalia's page 46 unpersuasive
Once you have the DNA sample it's permissible to use it. But they were not taking it for a constitutionally permissible reason.
If an officer wants to talk to you he's allowed to pat you down for weapons, even without probable cause, because it's a safety issue. If he happens to find drugs during that patdown, that can be used against you. But the officer is not allowed to pat you down for the REASON of looking for drugs. That would be an illegal search. Even though both searches are of the same person and have the same result, one is allowed and one is not.
It's sort of the same here. It's obvious that Maryland is not taking DNA for identification purposes. If they were, they wouldn't wait until after the arraignment to even start doing anything with it. No, they are taking it for the purpose of criminal investigation. And that PURPOSE makes it an illegal search.
There's also the fact the DNA is not replacing fingerprinting. Once you've photographed and fingerprinted someone, you have their identity. You have both what they look like and an unchangeable unique identifier that they can't get rid of. Adding DNA on top of that provides nothing new in terms of identity. Furthermore, the government has the responsibility to use the least intrusive way of doing things, when dealing with warrantless searches.
I think you would have a point if identification was one purpose among many for this DNA testing. I think it's clear that under this law, identification is not a purpose AT ALL. We likely would have started using fingerprints to identify criminals even if they were not sometimes useful in investigations. We would NOT have started this DNA testing EXCEPT that it is useful in criminal investigations.
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Re:
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And if Masnick had of been raped by this guy
Would it be ok then, do you think the lady who was raped by this dirtbag agrees with you ?
What if you were raped Masnick ? you would not want him caught and punished for it ? or would you invite him back the next night ?
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Re: And if Masnick had of been raped by this guy
@everyone else: Does anyone around here have some brain-bleach?
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Mike should stick to making policy arguments of what he believes the law should be. It his is strong suit.
When he spouts erroneous assertions of what the law is, he does his advocacy a disservice.
As for the decision, the solution appears to be to push for protections under state statutes or state Constitutions, much like occurred after the Kelo decision on imminent domain.
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