# 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:** 4
**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, 2:27pm UTC](https://boards.straightdope.com/t/dna-gathering-legal-once-arrested/660046/61 "2013-06-05T14:27:13Z")
> [@Hamlet](#): > > 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. The SC has ruled that ordinary booking procedures, fingerprints. mugshots, etc., are NOT incriminating under the 5th AM. ---
**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, 2:51pm UTC](https://boards.straightdope.com/t/dna-gathering-legal-once-arrested/660046/62 "2013-06-05T14:51:32Z")
> [@lawbuff](#): > > The SC has ruled that ordinary booking procedures, fingerprints. mugshots, etc., are NOT incriminating under the 5th AM. I wasn’t aware that I was discussing the 5th Amendment. I was under the impression I was referring to the 4th Amendment. ---
**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, 2:58pm UTC](https://boards.straightdope.com/t/dna-gathering-legal-once-arrested/660046/63 "2013-06-05T14:58:02Z")
> [@Hamlet](#): > > I wasn’t aware that I was discussing the 5th Amendment. I was under the impression I was referring to the 4th Amendment. Well, the gist was that there is NO expectation of privacy in a mug shot during booking, 4th or 5th. ---
**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, 3:09pm UTC](https://boards.straightdope.com/t/dna-gathering-legal-once-arrested/660046/64 "2013-06-05T15:09:20Z")
> [@lawbuff](#): > > To clarify, see my post 58. If the detention is NON authorized, then the person has an expectation of privacy in his fingerprints. Well, yeah. I think we’re all kind of taking it as read that the arrest is lawful. ---
**Author:** ![MOIDALIZE](https://avatars.discourse-cdn.com/v4/letter/m/e274bd/32.png) [@MOIDALIZE](https://boards.straightdope.com/u/MOIDALIZE)\ **Post date:** [June 5, 2013, 3:37pm UTC](https://boards.straightdope.com/t/dna-gathering-legal-once-arrested/660046/65 "2013-06-05T15:37:53Z")
> [@Hamlet](#): > > 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? As a matter of fact, fingerprints are routinely utilized for identification purposes. My problem with the majority is that they have assumed the same for DNA, and that’s simply not true. I imagine they’ve assumed that because the identification/investigation distinction is important. The Court generally frowns upon warrantless fishing expeditions. So it’s bad faith for the majority to rest its ruling on a distinction that in this case doesn’t exist. Ultimately, technology is going to put DNA swabs (or iris scans, or whatever) firmly into identification tool territory. But we’re not there yet, and I don’t think the Court needed to jump the gun. ---
**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, 3:55pm UTC](https://boards.straightdope.com/t/dna-gathering-legal-once-arrested/660046/66 "2013-06-05T15:55:17Z")
> [@MOIDALIZE](#): > > As a matter of fact, fingerprints are routinely utilized for identification purposes. Not before 1999 or so. It wasn’t until around when IAFIS was created and police departments began to get the technology to have computers do the preliminary comparison of fingerprints that they could easily be used for identification purposes. Yet I couldn’t find a case where fingerprinting was unconstitutional prior to 1999 and numerous cases that allowed it. Fingerprints were taken for decades before they could be used easily for identification. > [@Moidalize](#): > > My problem with the majority is that they have assumed the same for DNA, and that’s simply not true. But it is true. These state laws authorizing the collection of DNA upon arrest are being used, and are going to continue being used, to identify arrestees. The problem so many people have is that they are also being compared to DNA samples in other cases (just like fingerprints were). The fact there is a second purpose for the swabbing, one that makes more people uncomfortable (although I don’t see much of a constitutional difference between DNA and fingerprints), doesn’t make the other purpose disappear. > [@Moidalize](#): > > I imagine they’ve assumed that because the identification/investigation distinction is important. The Court generally frowns upon warrantless fishing expeditions. And all those cases solved with fingerprint evidence garnered from arrests? Should we be throwing all those out because taking the fingerprints was a warrantless fishing expedition? > [@Moidalize](#): > > Ultimately, technology is going to put DNA swabs (or iris scans, or whatever) firmly into identification tool territory. But we’re not there yet, and I don’t think the Court needed to jump the gun. And when that happens, the swabbing will suddenly go from unconstitutional to constitutional? At that future date, DNA sampling will still, as it is now, be used for two purposes, identification and investigation. Just as fingerprinting was and is. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [June 5, 2013, 3:59pm UTC](https://boards.straightdope.com/t/dna-gathering-legal-once-arrested/660046/67 "2013-06-05T15:59:14Z")
> [@YogSosoth](#): > > They’re voluntary for the credit companies, not for you. My decision to do business with the credit card companies is voluntary, though. And since they make the credit cards and the credit ratings, they get to keep track of them. > [@](#): > > And as far as your SSN goes, everyone pretty much has one. Yes, they do. But those are made up and issued by the government in the first place, and they wouldn’t work if the government didn’t keep track of them. > [@](#): > > Essentially, I’m talking about a government database of your information. That’s not essentially what you’re talking about, it’s exactly what you’re talking about. > [@](#): > > 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 The negative is that any time you’re ‘detained’ (not even arrested, much less convicted) you’re proposing the government gets a free shot at connecting you or perhaps your family to any crime whether they have any kind of reason to think it’s connected to you or not. ---
**Author:** ![MOIDALIZE](https://avatars.discourse-cdn.com/v4/letter/m/e274bd/32.png) [@MOIDALIZE](https://boards.straightdope.com/u/MOIDALIZE)\ **Post date:** [June 5, 2013, 4:42pm UTC](https://boards.straightdope.com/t/dna-gathering-legal-once-arrested/660046/68 "2013-06-05T16:42:30Z")
> [@Hamlet](#): > > But it is true. These state laws authorizing the collection of DNA upon arrest are being used, and are going to continue being used, to identify arrestees. False. That’s absolutely not why the DNA is being collected. They collect the sample to run it through the database to see if they get a hit. That’s why the Maryland law limited it to “crimes of violence” and burglary. They figured (not unreasonably) that that’s a good class of suspects to subject to extra scrutiny so long as the police are already holding them. They don’t need the sample for identification purposes. This case should have been decided on whether it’s unreasonable, under A4, to swab an arrested suspect’s cheek and run his DNA through a database, not whether the state has an interest in identifying someone. ---
**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, 5:06pm UTC](https://boards.straightdope.com/t/dna-gathering-legal-once-arrested/660046/69 "2013-06-05T17:06:30Z")
> [@MOIDALIZE](#): > > False. That’s absolutely not why the DNA is being collected. It most certainly is a reason it is being collected. Well, unless you think all 28 states enacting this kind of legislation and the majority of the US Supreme Court are liars. I’m not denying there is certainly other reasons for the collection of DNA, but I do find the idea that it’s not to identify arrestees also is silly. > [@Moidalize](#): > > They collect the sample to run it through the database to see if they get a hit. And to have a record of the person who they arrested. These purposes are not mutually exclusive. > [@Moidalize](#): > > That’s why the Maryland law limited it to “crimes of violence” and burglary. No, it’s limited to those kinds of crimes to heighten the governmental interest in identifying the arrestee also. In fact, if it were only to find other people to match previously collected DNA, they would have made it for MORE crimes, not less crimes. The logic would be the exact opposite of what you are claiming. > [@MOIDALIZE](#): > > This case should have been decided on whether it’s unreasonable, under A4, to swab an arrested suspect’s cheek and run his DNA through a database, not whether the state has an interest in identifying someone. I’ve seen some arguments that the taking of the DNA and the later running it through the database are two separate searches, each of which would have to meet the standards of the 4th Amendment. I’m unaware of that arguments success outside of a dissent or two, but maybe you can find some supporting caselaw or arguments. And this whole discussion is different from those decades of fingerprinting that occurred before they could be easily used to identify someone when it was constitutional to do so how, exactly? ---
**Author:** ![Ibn\_Warraq](https://avatars.discourse-cdn.com/v4/letter/i/e19b73/32.png) [@Ibn\_Warraq](https://boards.straightdope.com/u/Ibn_Warraq)\ **Post date:** [June 5, 2013, 5:12pm UTC](https://boards.straightdope.com/t/dna-gathering-legal-once-arrested/660046/70 "2013-06-05T17:12:54Z")
> [@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. Once you arrest someone you are “treating them like a criminal”. Based on your logic, the police shouldn’t be allowed to fingerprint people they arrest or even ask for IDs. ---
**Author:** ![Sailboat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sailboat/32/461_2.png) [@Sailboat](https://boards.straightdope.com/u/Sailboat)\ **Post date:** [June 5, 2013, 5:17pm UTC](https://boards.straightdope.com/t/dna-gathering-legal-once-arrested/660046/71 "2013-06-05T17:17:15Z")
Bolding mine: > [@lawbuff](#): > > 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) | Justia U.S. Supreme Court Center](http://supreme.justia.com/cases/federal/us/410/1/case.html) Is that Supreme Court precedent? If so, why doesn’t it preclude this DNA decision? ---
**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, 5:35pm UTC](https://boards.straightdope.com/t/dna-gathering-legal-once-arrested/660046/72 "2013-06-05T17:35:48Z")
Yes, that’s a Supreme Court holding. The Court distinguished it in this case because it deemed a cheek swab to be much less of an intrusion. > [@](#): > > A buccal swab is a far more gentle process than a venipuncture to draw blood. It involves but a light touch on the inside of the cheek; and although it can be deemed a search within the body of the arrestee, it requires no “surgical intrusions beneath the skin.” Winston, 470 U.S., at 760, 105 S.Ct. 1611. The fact than an intrusion is negligible is of central relevance to determining reasonableness, although it is still a search as the law defines that term. > > Maryland v. King, 12-207, 2013 WL 2371466 (U.S. 2013) ---
**Author:** ![MOIDALIZE](https://avatars.discourse-cdn.com/v4/letter/m/e274bd/32.png) [@MOIDALIZE](https://boards.straightdope.com/u/MOIDALIZE)\ **Post date:** [June 5, 2013, 5:43pm UTC](https://boards.straightdope.com/t/dna-gathering-legal-once-arrested/660046/73 "2013-06-05T17:43:01Z")
> [@Hamlet](#): > > It most certainly is a reason it is being collected. Well, unless you think all 28 states enacting this kind of legislation and the majority of the US Supreme Court are liars. “Only DNA records that directly relate to the identification of individuals shall be collected and stored.” That doesn’t mean the purpose of the law is to provide a means of identification, it means the DNA information they save in their database is to be limited only to that which identifies an individual. So they couldn’t keep a database identifying everyone with the baldness gene, for example. They can only keep just enough information for identification purposes, which I believe is a 26 number series. Assume they arrest someone with no ID, no fingerprints on file, and who refuses to give his name. If they don’t already have his fingerprints, then he likely hasn’t been run through the system before, which means any DNA match is going to be to an unsolved crime scene sample with no name attached. And if you have ID and fingerprints, then you don’t need DNA to identify them, so the only rationale for taking the cheek swab is to run it through the database to see if you get a hit on a cold case. ---
**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, 6:05pm UTC](https://boards.straightdope.com/t/dna-gathering-legal-once-arrested/660046/74 "2013-06-05T18:05:21Z")
> [@MOIDALIZE](#): > > “Only DNA records that directly relate to the identification of individuals shall be collected and stored.” That doesn’t mean the purpose of the law is to provide a means of identification, it means the DNA information they save in their database is to be limited only to that which identifies an individual. So they couldn’t keep a database identifying everyone with the baldness gene, for example. They can only keep just enough information for identification purposes, which I believe is a 26 number series. Yep. That part was to make sure they’re not using the DNA tests for anything other than identification. We agree. I have no idea what point you are trying to make with that though. > [@MOIDALIZE](#): > > Assume they arrest someone with no ID, no fingerprints on file, and who refuses to give his name. If they don’t already have his fingerprints, then he likely hasn’t been run through the system before, which means any DNA match is going to be to an unsolved crime scene sample with no name attached. And if you have ID and fingerprints, then you don’t need DNA to identify them, so the only rationale for taking the cheek swab is to run it through the database to see if you get a hit on a cold case. The fact that there are other ways to identify someone does nothing to make using DNA to do so unconstitutional. As the court noted: > [@](#): > > DNA identification is an advanced technique superior to fingerprinting in many ways, so much so that to insist on fingerprints as the norm would make little sense to eitheR the forensic expert or a layperson. The additional intrusion upon the arrestee’s privacy beyond that associated with fingerprinting is not significant, see Part V, infra, and DNA is a markedly more accurate form of identifying arrestees. A suspect who has changed his facial features to evade photographic identification or even one who has undertaken the more arduous task of altering his fingerprints cannot escape the revealing power of his DNA." And, once again, we run into the problem with the constitutional use of fingerprinting before IAFIS made it easy to do by computer. Those mandatory fingerprints were used to compare to previously and subsequent crimes committed without a constitutional problem arising. I don’t see how DNA is different. ---
**Author:** ![MOIDALIZE](https://avatars.discourse-cdn.com/v4/letter/m/e274bd/32.png) [@MOIDALIZE](https://boards.straightdope.com/u/MOIDALIZE)\ **Post date:** [June 5, 2013, 6:30pm UTC](https://boards.straightdope.com/t/dna-gathering-legal-once-arrested/660046/75 "2013-06-05T18:30:31Z")
> [@Hamlet](#): > > The fact that there are other ways to identify someone does nothing to make using DNA to do so unconstitutional. But that’s not why Maryland does it. Yet the majority predicated its holding on that basis, that it’s reasonable to take a DNA swab without a warrant or exigent circumstances or whatever, simply to identify someone, and oh yeah, while we’re at it, we’re going to run the sample through the database to try and get a cold case hit. It’s an annoyance I have with the Supreme Court. If they’re going to take a case, they shouldn’t make up the facts in order to craft the holding they want to arrive at. They should have decided this based on whether A4 allows the police to collect a DNA sample for the reason they’re actually collecting them, which is to check the sample against cold case samples. ---
**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, 6:36pm UTC](https://boards.straightdope.com/t/dna-gathering-legal-once-arrested/660046/76 "2013-06-05T18:36:46Z")
> [@Marley23](#): > > My decision to do business with the credit card companies is voluntary, though. And since they make the credit cards and the credit ratings, they get to keep track of them. > > Yes, they do. But those are made up and issued by the government in the first place, and they wouldn’t work if the government didn’t keep track of them. > > That’s not essentially what you’re talking about, it’s exactly what you’re talking about. > > The negative is that any time you’re ‘detained’ (not even arrested, much less convicted) you’re proposing the government gets a free shot at connecting you or perhaps your family to any crime whether they have any kind of reason to think it’s connected to you or not. My response is in line with Smapti and Der Trihs’s response to Little Nemo. We already report a lot of information to the government, I don’t believe DNA to be that much different than everything else Smapti listed in post #49. I disagree that simply having a database of your information amounts to treating someone like a criminal even if its one reason they would use your information. I’m also glad that any time anyone is detained, the government has a free shot to connect me or my family to any crime. As long as its not intrusive, I’m fine with that. When you get pulled over, not even arrested, but simply if you’re speeding, the cops do a check on your license to see if you have any outstanding warrants. I’m fine with that and glad they do it. Considering that you don’t have a right to commit crimes or a right to keep them secret, any time someone’s in the system they should be compared to an existing database of DNA found at crime scenes. ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [June 5, 2013, 6:48pm UTC](https://boards.straightdope.com/t/dna-gathering-legal-once-arrested/660046/77 "2013-06-05T18:48:18Z")
> [@YogSosoth](#): > > I’m also glad that any time anyone is detained, the government has a free shot to connect me or my family to any crime. As long as its not intrusive, I’m fine with that. When you get pulled over, not even arrested, but simply if you’re speeding, the cops do a check on your license to see if you have any outstanding warrants. I’m fine with that and glad they do it. Speeding is breaking the law. You don’t have to break the law to be arrested or detained. ---
**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, 6:51pm UTC](https://boards.straightdope.com/t/dna-gathering-legal-once-arrested/660046/78 "2013-06-05T18:51:56Z")
> [@YogSosoth](#): > > My response is in line with Smapti and Der Trihs’s response to Little Nemo. We already report a lot of information to the government, I don’t believe DNA to be that much different than everything else Smapti listed in post #49. I disagree that simply having a database of your information amounts to treating someone like a criminal even if its one reason they would use your information. > > I’m also glad that any time anyone is detained, the government has a free shot to connect me or my family to any crime. As long as its not intrusive, I’m fine with that. When you get pulled over, not even arrested, but simply if you’re speeding, the cops do a check on your license to see if you have any outstanding warrants. I’m fine with that and glad they do it. > > Considering that you don’t have a right to commit crimes or a right to keep them secret, any time someone’s in the system they should be compared to an existing database of DNA found at crime scenes. This is the distinction I was making. Somebody who has been arrested for a crime is not a criminal yet. Somebody who has been accused of a crime or is a suspect in an investigation is not a criminal yet. And our system is based on a presumption of innocence. So prior to actual conviction, people who’s been arrested should have the same rights as a person who was not arrested has - at least to the greatest extent possible. Any loss of rights due to arrest should be subject to a strict scrutiny standard. ---
**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, 7:09pm UTC](https://boards.straightdope.com/t/dna-gathering-legal-once-arrested/660046/79 "2013-06-05T19:09:54Z")
> [@MOIDALIZE](#): > > But that’s not why Maryland does it. You keep saying that assuming that there is one, and only one, reason they do it and that the legislature and the majority of the Supreme Court are lying. I find both those assumptions to be unsupported by the evidence. Just as the states and the federales used fingerprinting to identify people for decades before rapid computer searches could be done, so the states and federales are doing the exact same thing with DNA. Yet I don’t recall any uproar when it was fingerprinting. > [@MOIDALIZE](#): > > Yet the majority predicated its holding on that basis, that it’s reasonable to take a DNA swab without a warrant or exigent circumstances or whatever, simply to identify someone, and oh yeah, while we’re at it, we’re going to run the sample through the database to try and get a cold case hit. Which is what they did with fingerprints, with no apparent constitutional problem. It seems you have a problem not with the collection of the DNA, but the comparing that DNA to a database. I’m not sure that’s a 4th Amendment problem. > [@MOIDALIZE](#): > > It’s an annoyance I have with the Supreme Court. If they’re going to take a case, they shouldn’t make up the facts in order to craft the holding they want to arrive at. They should have decided this based on whether A4 allows the police to collect a DNA sample for the reason they’re actually collecting them, which is to check the sample against cold case samples. For the 8th time, the collection of DNA can be for more than one purpose. You continue to insist that the ONLY reason to collect DNA is to solve cold cases when that flies in the face of the statements by the legislature, the statements by the courts, the entire experience with fingerprinting, and the logic of limiting it to only serious cases. ---
**Author:** ![MOIDALIZE](https://avatars.discourse-cdn.com/v4/letter/m/e274bd/32.png) [@MOIDALIZE](https://boards.straightdope.com/u/MOIDALIZE)\ **Post date:** [June 5, 2013, 7:14pm UTC](https://boards.straightdope.com/t/dna-gathering-legal-once-arrested/660046/80 "2013-06-05T19:14:05Z")
Dude, common sense says they’re not using it to identify people. Come on. [Previous page](https://boards.straightdope.com/t/dna-gathering-legal-once-arrested/660046.md?page=3) [Next page](https://boards.straightdope.com/t/dna-gathering-legal-once-arrested/660046.md?page=5)