# DNA gathering legal once arrested **URL:** \ **Category:** Great Debates\ **Created:** [June 3, 2013, 5:03pm UTC](https://boards.straightdope.com/t/dna-gathering-legal-once-arrested/660046 "2013-06-03T17:03:46Z")\ **Posts on this page:** 20\ **Page:** 3
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [June 4, 2013, 9:28pm UTC](https://boards.straightdope.com/t/dna-gathering-legal-once-arrested/660046/41 "2013-06-04T21:28:23Z")
> [@LonghornDave](#): > > Scalia addresses this. I don’t think so. Scalia’s opinion goes beyond the simple “in this case it wasn’t used for identification purposes” and writes an opinion that could cover all the state’s laws that allow the taking of DNA upon arrest. Part of that is because it’s another one of Scalia’s opinions where he’s more interested in getting potshots at the group he disagrees with than with resolving an legal issue or tailoring his opinion to a case by case determination. His opinion also does nothing to attack the idea that fingerprints were taken for decades before they could be used for identification easily as they are today. Once again, he’s more interested in attacking those who disagree with him: “This bold statement is bereft of citation to authority because there is none for it” than in actually conducting legal analysis into possible attacks on his opinion. Finally, the part you quoted doesn’t actually address the issue at all. Sure it’s nice that he decides DNA testing isn’t necessary because fingerprints already are good enough for identifying people, but, as he himself has pointed out innumerable times in other opinions, the court shouldn’t be second guessing the decision of the legislature on the proper way to pursue its governmental interest (unless it’s those nasty gay people, I suppose). I found nothing in his opinion that draws a constituitonal basis between the use of mandatory fingerprinting before IAFIS and mandatory DNA swabbing now. I suppose if he had written an opinion that clearly laid out his legal analysis of said distinction, or had limited his opinion to the particular facts of this case and this case only, and had offered a discussion of the statute in question, we would be able to further dissect the issue. But, as is his wont, it seems he was more interested in snark than legal analysis. ---
**Author:** ![Ruken](https://avatars.discourse-cdn.com/v4/letter/r/f475e1/32.png) [@Ruken](https://boards.straightdope.com/u/Ruken)\ **Post date:** [June 4, 2013, 10:31pm UTC](https://boards.straightdope.com/t/dna-gathering-legal-once-arrested/660046/42 "2013-06-04T22:31:14Z")
> [@aceplace57](#): > > They said tonight on our local news that the SCOTUS ruling just reaffirms what the states are already doing. Arkansas has been collecting DNA for a couple years. There’s a state law that lists six specific felonies (Murder, Rape and a few others) where DNA is collected upon arrest and put in a state database. The SCOTUS ruling clarifies that they can continue with this procedure. I’m a very little more comfortable with the Arkansas version that restricts collection (and storage, I presume) to specific crimes. I didn’t see that the Maryland law does that. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [June 4, 2013, 10:42pm UTC](https://boards.straightdope.com/t/dna-gathering-legal-once-arrested/660046/43 "2013-06-04T22:42:06Z")
> [@Ruken](#): > > I’m a very little more comfortable with the Arkansas version that restricts collection (and storage, I presume) to specific crimes. I didn’t see that the Maryland law does that. From the opinion: > [@](#): > > The Act authorizes Maryland law enforcement authorities to collect DNA samples from “an individual who is charged with . . . a crime of violence or an attempt to commit a crime of violence; or . . . burglary or an attempt to commit burglary.” Md. Pub. Saf. Code Ann. §2–04(a)(3)(i) (Lexis 2011). Maryland law defines a crime of violence to include murder, rape, first-degree assault, kidnaping, arson, sexual assault, and a variety of other serious crimes. Md. Crim. Law Code Ann. §14–101 (Lexis 2012). Once taken, a DNA sample may not be processed or placed in a database before the individual is arraigned (unless the individual consents). Md. Pub. Saf. Code Ann. §2–504(d)(1) (Lexis 2011). It is at this point that a judicial officer ensures that there is probable cause to detain the arrestee on a qualifying serious offense. If “all qualifying criminal charges are determined to be unsupported by probable cause . . . the DNA sample shall be immediately destroyed.” §2–504(d)(2)(i). DNA samples are also destroyed if “a criminal action begun against the individual . . . does not result in a conviction,” “the conviction is finally reversed or vacated and no new trial is permitted,” or “the individual is granted an unconditional pardon.” §2–511(a)(1). The Act also limits the information added to a DNA database and how it may be used. Specifically, “[o]nly DNA records that directly relate to the identification of individuals shall be collected and stored.” §2–505(b)(1). No purpose other than identification is permissible: “A person may not willfully test a DNA sample for information that does not relate to the identification of individuals as specified in this subtitle.” §2–512(c). Tests for familial matches are also prohibited. See §2–506(d) (“A person may not perform a search of the statewide DNA data base for the purpose of identification of an offender in connection with a crime for which the offender may be a biological relative of the individual from whom the DNA sample was acquired”). The officers involved in taking > and analyzing respondent’s DNA sample complied with the Act in all respects ---
**Author:** ![YogSothoth](https://avatars.discourse-cdn.com/v4/letter/y/8edcca/32.png) [@YogSothoth](https://boards.straightdope.com/u/YogSothoth)\ **Post date:** [June 5, 2013, 1:39am UTC](https://boards.straightdope.com/t/dna-gathering-legal-once-arrested/660046/44 "2013-06-05T01:39:48Z")
> [@Marley23](#): > > On the facts, the majority blew it. > > You’re comparing a bunch of unlike things. Credit ratings are voluntary and maintained by credit card companies. The SSN is issued by the government. The government doesn’t issue your DNA. They’re voluntary for the credit companies, not for you. You cannot simply opt out of having a credit rating, or expect things will be the same for you if you try to buy a car or a house without one, or without a good one. Who decided we should have one? What if I have great credit, am never late on payments, but I refuse to use a credit card and establish a trail of credit? I’m essentially being punished because I refuse to go into debt and buy things with a card And as far as your SSN goes, everyone pretty much has one. Its something jobs will always ask for to verify your identity. You may as well have been born with one because you would have to live in the woods like some Montana freeman if you decide to live without one by yourself. I don’t think these things are that dissimilar. Essentially, I’m talking about a government database of your information. Whether that information is inborn, issued, or volunteered, its still a government database of your information. And I am not against having one of DNA. I would be very happy, and would support it 100%, if everyone’s DNA was stored, and in the future, anyone who is caught for any kind of crime, or simply detained for whatever reason, has to submit an unintrusive cheek swab and have their DNA compared to a database to see if there are any crimes they match up with. I believe the benefits to that far far outweigh the negatives ---
**Author:** ![elucidator](https://avatars.discourse-cdn.com/v4/letter/e/8edcca/32.png) [@elucidator](https://boards.straightdope.com/u/elucidator)\ **Post date:** [June 5, 2013, 2:14am UTC](https://boards.straightdope.com/t/dna-gathering-legal-once-arrested/660046/45 "2013-06-05T02:14:57Z")
> [@Marley23](#): > > …The government doesn’t issue your DNA. Soon. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [June 5, 2013, 3:50am UTC](https://boards.straightdope.com/t/dna-gathering-legal-once-arrested/660046/46 "2013-06-05T03:50:22Z")
> [@LonghornDave](#): > > I think Scalia knocks it out of the park in his dissent. > > [Maryland v. King](http://www.supremecourt.gov/opinions/12pdf/12-207_d18e.pdf) > > How can it possibly be argued that taking DNA is for identification purposes and not crime solving purposes? Agreed. With all other warrantless searches, the Court at least made a feeble attempt at justifying them for other reasons (prevent destruction of evidence, maintain safety in a jail, etc.). Here it just lied with this whole “identification” purpose and Scalia deftly called them out on it. Now we know that all of these justifications have been utter bullshit and that for years the Court has simply whittled away the Fourth Amendment to make it almost a nullity except inside a home. ---
**Author:** ![PBear42](https://avatars.discourse-cdn.com/v4/letter/p/ecccb3/32.png) [@PBear42](https://boards.straightdope.com/u/PBear42)\ **Post date:** [June 5, 2013, 6:56am UTC](https://boards.straightdope.com/t/dna-gathering-legal-once-arrested/660046/47 "2013-06-05T06:56:33Z")
> [@brickbacon](#): > > Well presumably, they already have your brother’s tested sample in the form of an unknown sample left at a crime scene. Thus, any future partial match can lead to a relative becoming a suspect. Say your brother gets arrested for stealing an expensive coat. If they take his DNA, and a subsequent test reveals it’s a partial match for a rape 15 years ago, they will start to look into his relatives. Even if you are not his only brother, you still might have cops knocking on your door. > > While the specifics are not always germane to this particular case, [partial matches](http://www.denverda.org/dna/DNA_Partial_Match_DNA_Cases.htm) lead to a lot of people being arrested. That’s how they caught BTK. The link discussed plenty of people being caught via partial matches obtained from relatives. Some of these cases include DNA partial matches from a sister whose DNA was obtained in a rape kit, a daughter whose DNA came from a Pap smear at a hospital, an identical twin arrested for burglary, etc. I think in most of these situations, justice is eventually served, but I wonder if we need to really question how much privacy we willingly cede to law enforcement. I disagree with the majority’s reasoning, largely for the reasons identified by the dissent, though I’d phrase things a little differently. The objection outlined here, though, doesn’t seem significant to me. Frankly, I don’t see how I have a reasonable expectation of privacy in the collection of DNA evidence from those in my family. They do, but not me. Importantly, if they consent, I don’t see where I have a leg to stand on. Also, FWIW, the majority took pains to note that the Maryland statute at issue doesn’t permit familial or relative matches. See link above at p.9. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [June 5, 2013, 10:12am UTC](https://boards.straightdope.com/t/dna-gathering-legal-once-arrested/660046/48 "2013-06-05T10:12:15Z")
Let me ask this. Suppose the government really decides to go for it on setting up a DNA database and requires everyone to submit a DNA sample. Would you feel that was reasonable? It would no doubt identify some criminals who might not otherwise be found so it would serve a valid purpose. But I think a lot of people would be uncomfortable with this idea. We’re repelled by the idea of being treated like a criminal. So the issue is at what point can the government begin treating you like a criminal? At one extreme, there’s the idea that you hold your full rights up the point where you’ve been convicted of a crime. At the other extreme is the idea I just presented where the government can collect evidence on everyone on the basis that some unknown percentage are criminals. And the issue the court had to decide was where does being arrested fall on that spectrum? Offhand, I’d side with the dissent opinion on this one. I don’t think being arrested for one specific crime is sufficient grounds to justify you being made subject to a general investigation. ---
**Author:** ![Smapti](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/smapti/32/17938_2.png) [@Smapti](https://boards.straightdope.com/u/Smapti)\ **Post date:** [June 5, 2013, 10:34am UTC](https://boards.straightdope.com/t/dna-gathering-legal-once-arrested/660046/49 "2013-06-05T10:34:56Z")
> [@Little\_Nemo](#): > > Let me ask this. Suppose the government really decides to go for it on setting up a DNA database and requires everyone to submit a DNA sample. Would you feel that was reasonable? > > So the issue is at what point can the government begin treating you like a criminal? I’m already obligated to inform the government of where I live, what I work, how much money I make, what kind of car I drive, how much I weigh, how tall I am, what color my eyes and hair are, whether I own property, who I may be married to and who my children may be, and a bevy of other personal details about myself. I don’t consider any of this “being treated like a criminal”. ---
**Author:** ![Der\_Trihs](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/der_trihs/32/233_2.png) [@Der\_Trihs](https://boards.straightdope.com/u/Der_Trihs)\ **Post date:** [June 5, 2013, 10:54am UTC](https://boards.straightdope.com/t/dna-gathering-legal-once-arrested/660046/50 "2013-06-05T10:54:43Z")
> [@Little\_Nemo](#): > > Let me ask this. Suppose the government really decides to go for it on setting up a DNA database and requires everyone to submit a DNA sample. Would you feel that was reasonable? > > It would no doubt identify some criminals who might not otherwise be found so it would serve a valid purpose. > > But I think a lot of people would be uncomfortable with this idea. We’re repelled by the idea of being treated like a criminal. The flaw in that argument is the assumption that having your DNA on file is being “treated like a criminal”. If everyone’s DNA is on file it’s no more being treated like a criminal than having a birth certificate or Social Security number is. And a lot of the arguments against it show how warped our society is in ways that have nothing to do with law enforcement. Like fears of losing your job or of insurance problems because some medical condition is discovered. Not “Hey, this might save my life!”; no, our society is so _warped_ that potentially life saving information needs to be kept hidden. ---
**Author:** ![Little\_Nemo](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/little_nemo/32/3120_2.png) [@Little\_Nemo](https://boards.straightdope.com/u/Little_Nemo)\ **Post date:** [June 5, 2013, 11:09am UTC](https://boards.straightdope.com/t/dna-gathering-legal-once-arrested/660046/51 "2013-06-05T11:09:01Z")
Considering that the sole purpose of collecting DNA would be for criminal investigations any argument that collecting somebody’s DNA isn’t treating them like a criminal is ridiculous. Enforcing the law and apprehending criminals are good things. But we can’t simply decide that anything that furthers those goals is therefore justified. If we do then why have a Fourth Amendment at all? I can guarantee you that if the police had the power to enter any residence at will, they would catch more criminals. But we place limits of police powers because we realize that catching criminals can come at too high a price. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [June 5, 2013, 12:11pm UTC](https://boards.straightdope.com/t/dna-gathering-legal-once-arrested/660046/52 "2013-06-05T12:11:54Z")
> [@jtgain](#): > > Agreed. With all other warrantless searches, the Court at least made a feeble attempt at justifying them for other reasons (prevent destruction of evidence, maintain safety in a jail, etc.). Here it just lied with this whole “identification” purpose and Scalia deftly called them out on it. And pre-1999 fingerprint collection? Were those state and lower court rulings finding the pre-1999 collection of fingerprints constitutional all wrong? And all those cases where a criminal was caught based on fingerprint evidence that was kept on file? All thrown out? ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [June 5, 2013, 12:21pm UTC](https://boards.straightdope.com/t/dna-gathering-legal-once-arrested/660046/53 "2013-06-05T12:21:42Z")
> [@Little\_Nemo](#): > > Considering that the sole purpose of collecting DNA would be for criminal investigations any argument that collecting somebody’s DNA isn’t treating them like a criminal is ridiculous. But that’s simply not true. DNA is also collected, just like fingerprints, to identify the person in the criminal justice system. As technology has advanced, it’s been used to identify criminals, from names and aliases to height/weight/hair color, to photographs, to Bertillon measurements to fingerprints, to DNA. At every other step along the way, it has been constitutional to collect that information. I don’t recall seeing anyone suceesfully argue that the police couldn’t take their photograph when they were arrested because they might use that photograph in a photo lineup to identify a perpetrator, which would be “collecting evidence” against him in a different case. ---
**Author:** ![Cheesesteak](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/cheesesteak/32/3694_2.png) [@Cheesesteak](https://boards.straightdope.com/u/Cheesesteak)\ **Post date:** [June 5, 2013, 1:08pm UTC](https://boards.straightdope.com/t/dna-gathering-legal-once-arrested/660046/54 "2013-06-05T13:08:34Z")
> [@Little\_Nemo](#): > > Let me ask this. Suppose the government really decides to go for it on setting up a DNA database and requires everyone to submit a DNA sample. Would you feel that was reasonable? No. I also do not think it’s reasonable for the government to set up a Fingerprint Database and require everyone to submit samples to it. ---
**Author:** ![Really\_Not\_All\_That\_Bright](https://avatars.discourse-cdn.com/v4/letter/r/e8c25b/32.png) [@Really\_Not\_All\_That\_Bright](https://boards.straightdope.com/u/Really_Not_All_That_Bright)\ **Post date:** [June 5, 2013, 1:37pm UTC](https://boards.straightdope.com/t/dna-gathering-legal-once-arrested/660046/55 "2013-06-05T13:37:25Z")
> [@Little\_Nemo](#): > > Considering that the sole purpose of collecting DNA would be for criminal investigations any argument that collecting somebody’s DNA isn’t treating them like a criminal is ridiculous. > > Enforcing the law and apprehending criminals are good things. But we can’t simply decide that anything that furthers those goals is therefore justified. If we do then why have a Fourth Amendment at all? I can guarantee you that if the police had the power to enter any residence at will, they would catch more criminals. > > But we place limits of police powers because we realize that catching criminals can come at too high a price. We’ve already established, within fairly broad lines, that people can be searched incident to arrest, and upon being booked into a holding facility. Remember, the Fourth Amendment prohibits only _unreasonable_ searches. I don’t see anything inherently unreasonable in DNA swabbing. ---
**Author:** ![jackdavinci](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jackdavinci/32/3259_2.png) [@jackdavinci](https://boards.straightdope.com/u/jackdavinci)\ **Post date:** [June 5, 2013, 1:42pm UTC](https://boards.straightdope.com/t/dna-gathering-legal-once-arrested/660046/56 "2013-06-05T13:42:46Z")
How does/did it work in other states? I assume there must have been some way of figuring out if a suspects DNA matched crime scene evidence. ---
**Author:** ![NotreDame05](https://avatars.discourse-cdn.com/v4/letter/n/90ced4/32.png) [@NotreDame05](https://boards.straightdope.com/u/NotreDame05)\ **Post date:** [June 5, 2013, 1:52pm UTC](https://boards.straightdope.com/t/dna-gathering-legal-once-arrested/660046/57 "2013-06-05T13:52:48Z")
> [@Hamlet](#): > > But that’s simply not true. DNA is also collected, just like fingerprints, to identify the person in the criminal justice system. As technology has advanced, it’s been used to identify criminals, from names and aliases to height/weight/hair color, to photographs, to Bertillon measurements to fingerprints, to DNA. At every other step along the way, it has been constitutional to collect that information. I don’t recall seeing anyone suceesfully argue that the police couldn’t take their photograph when they were arrested because they might use that photograph in a photo lineup to identify a perpetrator, which would be “collecting evidence” against him in a different case. Isn’t a mug shot different because a mug shot does not constitute as a search or seizure? The face is openly exposed and in plain view and as a result there isn’t a search or seizure of police take a picture of what is open and exposed in plain view. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [June 5, 2013, 2:23pm UTC](https://boards.straightdope.com/t/dna-gathering-legal-once-arrested/660046/58 "2013-06-05T14:23:04Z")
> [@LonghornDave](#): > > I’m not being argumentative as I honestly am out of my element here; however, a simple internet search tells me a search is the following. > > I also found the following. > [@](#): > > Originally Posted by [justice.gov](http://justice.gov) > Fingerprinting—Search and Seizure > > The Fourth Amendment does not bar the fingerprinting of a properly seized person. “Fingerprinting involves none of the probing into an individual’s private life and thoughts that marks an interrogation or search.” See Davis v. Mississippi, 394 U.S. 721, 727 (1969). So long as the initial seizure of the person is reasonable, as in a lawful arrest, subsequent fingerprinting is permissible. It is also possible that the requirements of the Fourth Amendment could be met through “narrowly circumscribed procedures for obtaining, during the course of a criminal investigation, the fingerprints of individuals for whom there is no probable cause for arrest.” See Davis v. Mississippi, supra, at 728; see also Hayes v. Florida, 470 U.S. 811 (1985). I know about Davis, as that is a seminal 4th AM case, but my point was, as in Davis, absent PC/Judicial authorization, the search would be illegal. Quoting from a famous “voice exemplar” case; “The witnesses are lawfully before the grand jury pursuant to subpoena. The Fourth Amendment prohibition against unreasonable search and seizure applies only where identifying physical characteristics, such as fingerprints, are obtained as a result of unlawful detention of a suspect, or when an intrusion into the body, such as a blood test, is undertaken without a warrant, absent an emergency situation. E.g., Davis v. Mississippi, 394 U. S. 721, 394 U. S. 724-728 (1969); Schmerber v. California, 384 U. S. 757, 384 U. S. 770-771 (1966). [Footnote 2]” > **[United States v. Dionisio, 410 U.S. 1 (1973)](https://supreme.justia.com/cases/federal/us/410/1/)** > > United States v. Dionisio ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [June 5, 2013, 2:24pm UTC](https://boards.straightdope.com/t/dna-gathering-legal-once-arrested/660046/59 "2013-06-05T14:24:14Z")
> [@NotreDame05](#): > > Isn’t a mug shot different because a mug shot does not constitute as a search or seizure? The face is openly exposed and in plain view and as a result there isn’t a search or seizure of police take a picture of what is open and exposed in plain view. But the person has been seized for a mug shot too. It’s not like they’re taking pictures outside the police station in plain view. But if the photograph analogy doesn’t work for you, go with the fingerprinting one. ---
**Author:** ![lawbuff](https://avatars.discourse-cdn.com/v4/letter/l/13edae/32.png) [@lawbuff](https://boards.straightdope.com/u/lawbuff)\ **Post date:** [June 5, 2013, 2:25pm UTC](https://boards.straightdope.com/t/dna-gathering-legal-once-arrested/660046/60 "2013-06-05T14:25:40Z")
> [@Really\_Not\_All\_That\_Bright](#): > > An arrestee has no reasonable expectation of privacy in his fingerprint. Even Scalia didn’t argue that fingerprinting was a search: To clarify, see my post 58. If the detention is NON authorized, then the person has an expectation of privacy in his fingerprints. [Previous page](https://boards.straightdope.com/t/dna-gathering-legal-once-arrested/660046.md?page=2) [Next page](https://boards.straightdope.com/t/dna-gathering-legal-once-arrested/660046.md?page=4)