Supreme Court: DNA Samples Can Be Taken From Arrestees Without Warrant (2 Viewers)

[bclemms]

goverment is the biggest criminals. when do we get to takes DNA samples from them

Pretty sure every hooker in DC has that covered.

 

[TulsaSaint]

We, as citizens, always tend to view these things as slippery slopes . . . but I think the Court typically brings us back to the existing frameworks we already live in. Cops can't just take your fingerprints or do a drug screen based on a typical traffic stop. We already have that analysis in place based on the Fourth Amendment. So that's the answer to your question . . . they can't do that.

Not sure I agree with you. They already allow drug-sniffing dogs at routine traffic stops. They already allow roadside DUI checkpoints where they stop you without probable cause and do sobriety tests or breathalyzers. It's not far from there to DNA swabs at traffic stops.

 

[superchuck500]

Not sure I agree with you. They already allow drug-sniffing dogs at routine traffic stops. They already allow roadside DUI checkpoints where they stop you without probable cause and do sobriety tests or breathalyzers. It's not far from there to DNA swabs at traffic stops.

I am only stating how the Court reasoned. If you're right that they can have drug dogs at stops I would surmise that that drug dogs in the general vicinity of the vehicle are not considered Fourth Amendment "searches" - as I would likewise surmise that they can't just open your trunk to see if the dog reacts. And the Court also discussed the use of a single-focused test (aimed to determine one kind of context-appropriate violation) applicable to the general public in the form of roadway checkpoints - and likewise reasoned based on Fourth Amendment law that a DNA swab is different. While they can give you an FST at checkpoint, they can't take your fingerprints, under the same rationale.

 

[superchuck500]

wouldn't DNA be used the same way? If prints are okay why not the DNA?

Just curious

Yes, I think DNA would be used the same way. I'm not sure I follow what you're suggesting may be problematic.

And in fact, that was precisely what happened in the King case. A man was arrested for threatening people with a gun and they swabbed his DNA in accordance with Maryland law that makes a DNA swab part of the arrest-processing routine. They ran the DNA and it turned up in an unsolved rape case.

The Court noted that in the context of an arrested person, there is a public safety interest in determining whether that person committed other crimes. We allow this sort of examination for fingerprints and the Court didn't have a problem with viewing DNA similarly.

From the opinion:

A suspect’s criminal history is a critical part of his identity that officers should know when processing him for detention. It is a common occurrence that “[p]eople detained for minor offenses can turn out to be the most devious and dangerous criminals. Hours after the Oklahoma City bombing, Timothy McVeigh was stopped by a state trooper who noticed he was driving without a license plate. Police stopped serial killer Joel Rifkin for the same reason. One of the terrorists involved in the September 11 attacks was stopped and ticketed for speeding just two days before hijacking Flight 93.” Id., at ___ (slip op., at 14) (citations omitted). Police already seek this crucial identifying information. They use routine and accepted means as varied as comparing the suspect’s booking photograph to sketch artists’ depictions of persons of interest, showing his mugshot to potential witnesses, and of course making a computerized comparison of the arrestee’s fingerprints against electronic databases of known criminals and unsolved crimes. In this respect the only difference between DNA analysis and the accepted use of fingerprint databases is the unparalleled accuracy DNA provides.

King at 12-13.
http://www.supremecourt.gov/opinions/12pdf/12-207_d18e.pdf

 

[kfaulk99]

Actually, under the Maryland law the DNA sample doesn't go to the database until after arraignment and is supposedly "destroyed" and removed from the database if the person is acquitted.

The Court didn't really address this aspect of it in its rationale, but it is an interesting point. I suspect that, like fingerprints, a law that didn't similarly require destruction could still be upheld but this case certainly doesn't stand for that proposition.

Another interesting point about the Maryland law that the Court upheld was that it provided express limitations on how the DNA could be used. For instance, using DNA to make "familial matches" was prohibited. This seems like a well-reasoned safeguard by the Maryland lawmakers to try to recognize that it raises additional questions when you try to use the validly-obtained DNA from one person to try to convict a family member whose DNA was not obtained and that use is presumably beyond the valid purpose in obtaining the DNA initially.

The Court did not really go into this aspect either.

I remember in Baton Rouge, when the police were trying to find the serial killer, who wound up being Derrick Todd Lee(or whatever his name is), they asked for individuals to come in voluntarily to the police station to give DNA samples. Many, many people complied with that request.

They "promised" that if you were not a match, your sample would be destroyed. Then they caught the guy.

Guess what, the police decided that instead of destroying all that DNA, they'd make a database. These are individuals who were innocent and only tried to help the police and look at how their assistance was "appreciated". I do remember that there was a lawsuit to get these samples destroyed, but I do not remember how that turned out.

Point is, I don't trust cops in the least bit. They straight up lied to the general public, who were simply trying to help. That, and a couple of other instances, tell me everything I need to know about cops. And that is trust should never just be blindly given to some jackhole with a badge.

I do not like this ruling at all.

 

[insidejob]

Actually, under the Maryland law the DNA sample doesn't go to the database until after arraignment and is supposedly "destroyed" and removed from the database if the person is acquitted.

The Court didn't really address this aspect of it in its rationale, but it is an interesting point. I suspect that, like fingerprints, a law that didn't similarly require destruction could still be upheld but this case certainly doesn't stand for that proposition.

Another interesting point about the Maryland law that the Court upheld was that it provided express limitations on how the DNA could be used. For instance, using DNA to make "familial matches" was prohibited. This seems like a well-reasoned safeguard by the Maryland lawmakers to try to recognize that it raises additional questions when you try to use the validly-obtained DNA from one person to try to convict a family member whose DNA was not obtained and that use is presumably beyond the valid purpose in obtaining the DNA initially.

The Court did not really go into this aspect either.

That's all good and well but just seems stupid to me. Why go through all the trouble of collecting, analyzing and then storing if there's the possibility of it having to be destroyed? Also, to believe that it will actually be destroyed puts some serious faith in the criminal justice system as a whole that I simply don't have. And what happens in Maryland if your charges get accepted and you beat them in court? Or take a plea that reduces the charges to something that would never have justified the collection of your DNA in the first place? Why jump the gun in the first place by collecting the DNA of anybody whatsoever when they have not been found guilty of anything yet? Wouldn't it just be easier to collect it once a verdict is reached or a plea entered?

I also don't buy for one minute that any DNA will ever be destroyed. I think it will be stored and used in later investigations while never being disclosed that it was in fact used. It's simply too easy for them to pass up. "Hey, we've got DNA that we know we can't use because we aren't supposed to have it, but now we know who's our guy...let's go find something we can use as probable cause." You and I both know this is already taking place in police departments everywhere with wire tapping, racial profiling, illegal searches, etc. It's not too big a leap to think that they'll be just as dishonest concerning this as they already are. They don't care about violating people's rights, only violating people's rights on the record.

Not to mention the rampant incompetence in places like the criminal clerk's office, Sheriff's Office, etc. (I can only speak of Orleans Parish and other offices in the metro area.) Case and point: I know someone who was arrested in July 2006 for simple possession of marijuana only to have it thrown out at arraignment but two and a half years later was arrested after being pulled over for running a stop sign for an open attachment (failure to appear) for that earlier arrest. This person was then held the max 21 days in OPP waiting to go to court where the judge told him, "This was nolle prossed in 2006. What is he even doing here?" This is the one case that I know of personally, so I'm sure there are thousands more out there with more being added to the stack by the minute. **** like this does not give me faith in these same people being responsible for anyone's genetic friggin code.

 

[JimEverett]

wouldn't DNA be used the same way? If prints are okay why not the DNA?

Just curious

What you are talking about - fingerprints being used to search for other crimes without any probable cause or warrant to do so - has not been okayed by the SCOTUS. Scalia points this out in the dissent.
Courts have long held that you cannot just willy nilly search people without a warrant, which requires probable cause, or some exigent circumstance to do so.
This ruling clearly goes against it which explains why the majority wants to characterize the DNA swab/testing as a method of identification as opposed to a search. Even though there is little to no basis in fact to do so.

 

[superchuck500]

What you are talking about - fingerprints being used to search for other crimes without any probable cause or warrant to do so - has not been okayed by the SCOTUS. Scalia points this out in the dissent.
Courts have long held that you cannot just willy nilly search people without a warrant, which requires probable cause, or some exigent circumstance to do so.
This ruling clearly goes against it which explains why the majority wants to characterize the DNA swab/testing as a method of identification as opposed to a search. Even though there is little to no basis in fact to do so.

Let's make sure we're consistent with our terms and contexts. I don't think the opinion stands for the proposition that DNA can be taken without probable cause. The majority clearly prefaces the endorsement of the practice only in the context of processing an arrest - and the Court (perhaps too liberally) presumes probable cause already exists based on the arrest. In other words, I think the holding could be read to mean that the "search" that is the DNA swab in the context of arrest processing has probable cause co-extensive with the probable cause supporting the arrest (and ergo, if the arrest is found to lack probable cause the swab would likewise have been improperly taken).

But the other point - using any sort of identifying data against a criminal database of unsolved crimes - does appear to be endorsed by the majority but it does so with no citation and it appears to be dicta . . . simply recognizing this common law enforcement practice.

So based on this discussion and knowing my learned friend in Tennessee orange knows this area well better than I, it leads me to ask whether the Court's apparent acceptance of the idea that identifying data taken from an arrested person (e.g. fingerprints or DNA) can be legally compared against identifying data from unsolved crimes is not actually the case and that the practice has been held to violate the arrestee's rights?

 

[JimEverett]

Let's make sure we're consistent with our terms and contexts. I don't think the opinion stands for the proposition that DNA can be taken without probable cause. The majority clearly prefaces the endorsement of the practice only in the context of processing an arrest - and the Court (perhaps too liberally) presumes probable cause already exists based on the arrest. In other words, I think the holding could be read to mean that the "search" that is the DNA swab in the context of arrest processing has probable cause co-extensive with the probable cause supporting the arrest (and ergo, if the arrest is found to lack probable cause the swab would likewise have been improperly taken).

But the other point - using any sort of identifying data against a criminal database of unsolved crimes - does appear to be endorsed by the majority but it does so with no citation and it appears to be dicta . . . simply recognizing this common law enforcement practice.

So based on this discussion and knowing my learned friend in Tennessee orange knows this area well better than I, it leads me to ask whether the Court's apparent acceptance of the idea that identifying data taken from an arrested person (e.g. fingerprints or DNA) can be legally compared against identifying data from unsolved crimes is not actually the case and that the practice has been held to violate the arrestee's rights?

The opinion says that a DNA search can be taken without regard to any individualized suspicion - which in effect means without any probable cause for criminal behavior.

As far as the question - I am not sure. I have not really read the opinion or dissent just glanced, but the latter looks really interesting because from what I read it seems to suggest that using fingerprints in a general search for other criminal behavior might not be allowed. Although Scalia notes there is a big difference between fingerprinting and DNA - that fingerprinting is used almost immediately to actually identify a person, while DNA takes weeks - which tends to weaken the argument that DNA testing is done for identification purposes.

 

[moe1967]

Actually, under the Maryland law the DNA sample doesn't go to the database until after arraignment and is supposedly "destroyed" and removed from the database if the person is acquitted.

The Court didn't really address this aspect of it in its rationale, but it is an interesting point. I suspect that, like fingerprints, a law that didn't similarly require destruction could still be upheld but this case certainly doesn't stand for that proposition.

Another interesting point about the Maryland law that the Court upheld was that it provided express limitations on how the DNA could be used. For instance, using DNA to make "familial matches" was prohibited. This seems like a well-reasoned safeguard by the Maryland lawmakers to try to recognize that it raises additional questions when you try to use the validly-obtained DNA from one person to try to convict a family member whose DNA was not obtained and that use is presumably beyond the valid purpose in obtaining the DNA initially.

The Court did not really go into this aspect either.

Surely you are not naive enough to believe this. I can assure you, no DNA sample will ever be destroyed.

 

[superchuck500]

The opinion says that a DNA search can be taken without regard to any individualized suspicion - which in effect means without any probable cause for criminal behavior.

I don't think it says that. I says that a DNA swab can be taken as part of processing of an arrested person. The probable cause for the search is co-extensive with the probable cause for the arrest.

 

[superchuck500]

Surely you are not naive enough to believe this. I can assure you, no DNA sample will ever be destroyed.

That's what the Maryland law expressly provides. If you want to believe that Maryland law enforcement isn't going to follow an express provision of the law, that's fine - I'm not going to tell you you're wrong. I have no opinion on what I think they're going to do, so it isn't a question of who is naive - I was simply stating the law.

 

[JimEverett]

I don't think it says that. I says that a DNA swab can be taken as part of processing of an arrested person. The probable cause for the search is co-extensive with the probable cause for the arrest.

The only way they could get to the holding is either using an individualized suspicion standard - which would require probable cause - or to use a reasonableness standard, which is what they used hence the discussion over identification.

 

[superchuck500]

The only way they could get to the holding is either using an individualized suspicion standard - which would require probable cause - or to use a reasonableness standard, which is what they used hence the discussion over identification.

Well, have you read the darn thing yet? They do indeed use the reasonableness standard based on the body of law applicable to the processing of arrested suspects - where probable cause arose in the context of the arrest and is therefore not necessary to independently support a search in the context of processing that arrest. So the entire rationale is premised upon the fact that the person subject to the DNA swab is already in police custody pursuant to an arrest . . . and because probable cause is a question tied to the arrest and not to the subsequent processing, that processing need only be reasonable.

So it isn't accurate to state that the Court held that law enforcement can take a DNA swab without regard for individual suspicion (and lack of probable cause).

From the opinion (at 10-11):

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 accurate way to process and identify the persons and possessions they must take into custody. It is beyond dispute that “probable cause provides legal justification for arresting a person suspected of crime, and for a brief period of detention to take the administrative steps incident to arrest.” Gerstein v. Pugh, 420 U. S. 103, 113–114 (1975).

Also uncontested is the “right on the part of the Government, always recognized under English and American law, to search the person of the accused when legally arrested.” Weeks v. United States, 232 U. S. 383, 392 (1914), overruled on other grounds, Mapp v. Ohio, 367 U. S. 643 (1961). “The validity of the search of a person incident to a lawful arrest has been regarded as settled from its first enunciation, and has remained virtually unchallenged.” United States v. Robinson, 414 U. S. 218, 224 (1973). Even in that context, the Court has been clear that individual suspicion is not necessary, because “[t]he constitutionality of a search incident to an arrest does not depend on whether there is any indication that the person arrested possesses weapons or evidence. The fact of a lawful arrest, standing alone, authorizes a search.” Michigan v. DeFillippo, 443 U. S. 31, 35 (1979).

The “routine administrative procedure at a police station house incident to booking and jailing the suspect” derive from different origins and have different constitutional justifications than, say, the search of a place, Illinois v. Lafayette, 462 U. S. 640, 643 (1983); for the search of a place not incident to an arrest depends on the “fair probability that contraband or evidence of a crime will be found in a particular place,” Illinois v. Gates, 462 U. S. 213, 238 (1983). The interests are further different when an individual is formally processed into police custody. Then “the law is in the act of subjecting the body of the accused to its physical dominion.” People v. Chiagles, 237 N. Y. 193, 197, 142 N. E. 583, 584 (1923) (Cardozo, J.). When probable cause exists to remove an individual from the normal channels of society and hold him in legal custody, DNA identification plays a critical role in serving those interests.

 

[JimEverett]

Searches at time of arrest are analyzed under a reasonableness test as opposed to a suspicion test. Granted, an arrest requires probable cause but each "search" does not.
It is incorrect to say that a search of a person's pockets at time of arrest is based on some suspicion of a crime or even the probable cause of the arrest. It is a standard of reasonableness given the context, protection of police, type of search, etc.

At least that is how I read it.