The techniques currently used by police are very limited, and would be of no use for medical purposes. But the technology is going to improve, and the improved technologies will be governed by the same precedents as the present ones. The day is coming when it will be routine for a police department to do a complete sequencing on every tissue sample that comes through the door. And when that happens, it would be very relevant indeed for medical purposes.
I barely glanced at both opinions, but I’m wondering when, using Scalia’s analysis, fingerprinting became constitutional. Early 1900’s when the National Bureau of Criminal Identification started using them? Mid 1900’s when the FBI had 100 million fingerprint cards? 1970’s, when serious certification of latent examiners started worldwide? 1999, when IAFIS was started? Or is fingerprinting upon arrest actually unconstitutional? Or it is constitutional when done to identify a person, but becomes unconstitutional when compared to fingerprints found at unsolved crime scenes?
And since we know there are DNA markers for certain diseases, it might be that the intake DNA scan will ping something like incipient diabetes/coronary issues, and the imprisonment facility can tailor a menu and exercise plan and alert the medical staff to help prisoner health.
If we did something radical like legalize weed, we could reduce prison population and get something more like what Norway has and less like Eastern State Penitentiary.
Assuming that passes constitutional muster. This decision seems to have spent a great deal of text to state that the DNA testing is done on non-coding DNA, is based on 13 standard loci, is not known to have any association to genetic diseases or disposition, is only of use to identify a person uniquely, and is constitutional based on a State’s compelling interest in identifying suspects.
A complete sequencing would be far outside of those conditions, and would serve no purpose.
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.
Yes, when a person’s “expectation of privacy” is violated, that is a search.
This FAR outweighs the old Bertillon system of identification.
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.
[QUOTE=Wikipedia citing Harlan’s concurring opinion in Katz v. United States]
(1) the individual “has exhibited an actual (subjective) expectation of privacy,” and (2) society is prepared to recognize that this expectation is (objectively) reasonable, then there is a right of privacy in the given circumstance.
[/QUOTE]
I also found the following.
[QUOTE=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).
[/QUOTE]
An arrestee has no reasonable expectation of privacy in his fingerprint. Even Scalia didn’t argue that fingerprinting was a search:
I agree completely with the majority as to the general principle that DNA swabbing for ID purposes at time of arrest is not a search. I also agree with the distinction drawn by LonghornDave:
In short, I think the majority miffed it on the specifics of this case.
[QUOTE=brickbacon]
Isn’t some of the issue that as we learn more and more about genetics, we can parse the data in ways that would be problematic? For example, you can often tel if there is a family match between two samples of DNA. Is it fair that when your brother gets arrested, part of your DNA becomes known to the government?
[/QUOTE]
Eh? Until samples are both are tested, nobody is going to know which alleles you share with your brother.
Is there a distinction to be made between “forcing” the arrested to give up a sample and simply taking it from, say, a discarded cigarette butt or a used coffee cup?
Depends. A discarded cigarette butt in an ashtray in your home requires a warrant; they can’t enter your house to get it without one, or consent.
A discarded butt in a public trash can is fair game.
The majority said that DNA swabbing is a search.
[QUOTE=Majority Opinion]
It can be agreed that using a buccal swab on the inner tissues of a person’s cheek in order to obtain DNA samples is a search. Virtually any “intrusio[n] into the human body,” Schmerber v. California, 384 U. S. 757, 770 (1966), will work an invasion of “‘cherished personal security’ that is subject to constitutional scrutiny,” Cupp v. Murphy, 412 U. S. 291, 295 (1973) (quoting Terry v. Ohio, 392 U. S. 1, 24–25 (1968)).
…
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.
[/QUOTE]
The majority goes on to say.
[QUOTE=Majority]
In some circumstances, such as “[w]hen faced with special law enforcement needs, diminished expectations of privacy, minimal intrusions, or the like, the Court has found that certain general, or individual, circumstances may render a warrantless search or seizure reasonable.” Illinois v. McArthur, 531 U. S. 326, 330 (2001). Those circumstances diminish the need for a warrant, either because “the public interest is such that neither a warrant nor probable cause is required,” Maryland v. Buie, 494 U. S. 325, 331 (1990), or because an individual is already on notice, for instance because of his employment, see Skinner, supra, or the conditions of his release from government custody, see Samson v. California, 547 U. S. 843 (2006), that some reasonable police intrusion on his privacy is to be expected.
…
Even if a warrant is not required, a search is not beyond Fourth Amendment scrutiny; for it must be reasonable in its scope and manner of execution. Urgent government interests are not a license for indiscriminate police behavior. To say that no warrant is required is merely to acknowledge that “rather than employing a per se rule of unreasonableness, we balance the privacy-related and law enforcement-related concerns to determine if the intrusion was reasonable.” McArthur, supra, at 331.
…
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.
[/QUOTE]
I’m fine with this, even being a liberal. Once you’re arrested, the police should be able to keep all kinds of records on you. Some I would support, others I don’t, but mostly it has to do with how much trouble they are putting you through versus what you did to get into their custody. A cheek swab, let’s be perfectly honest here, does not inconvenience a person in the slightest. Anyone who says it does is lying. So take swabs, fingerprints, shoe sizes, etc.
Like, say, if you’re arrested for refusing to give up your seat on a bus? Sitting at a lunch counter? Walking across Edmund Pettus Bridge?
.
Were I to be arrested for any of those things, whether they took a DNA sample afterward would be the least of my worries.
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 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.
Wait a minute, how could it be argued back in the day that fingerprinting was for identification purposes when we have only had searchable databases for the last 30 years or so? I assume fingerprinting is constitutional now, but before we had those databases it must have been unconstitutional, yes? What if we could sequence DNA in 10 seconds, would it be constitutional then? I have not read the dissent, but I don’t get the argument. Can you clarify?
On edit: Nevermind, I see as I continue reading the thread these issues are being addressed…
Scalia addresses this.
[QUOTE=Dissent]
The Court also accepts uncritically the Government’s representation at oral argument that it is developing devices that will be able to test DNA in mere minutes. At most, this demonstrates that it may one day be possible to design a program that uses DNA for a purpose other than crime-solving—not that Maryland has in fact designed such a program today. And that is the main point, which the Court’s discussion of the brave new world of instant DNA analysis should not obscure. 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.
Today, it can fairly be said that fingerprints really are used to identify people—so well, in fact, that there would be no need for the expense of a separate, wholly redundant DNA confirmation of the same information. What DNA adds—what makes it a valuable weapon in the law enforcement arsenal—is the ability to solve unsolved crimes, by matching old crime-scene evidence against the profiles of people whose identities are already known. That is what was going on when King’s DNA was taken, and we should not disguise the fact. Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches. The Fourth Amendment must prevail.
[/QUOTE]
Doesn’t really inconvenience you. I’m a proponent of a database of everyone’s information stored by the government. Just as we have databases of everyone’s birth, records of your SSN, credit history, etc., we should have a database of everyone’s DNA in case we need to find someone using their DNA
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.