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.
Well, the gist was that there is NO expectation of privacy in a mug shot during booking, 4th or 5th.
Well, yeah. I think we’re all kind of taking it as read that the arrest is lawful.
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.
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.
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.
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?
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.
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.
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.
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.
And to have a record of the person who they arrested. These purposes are not mutually exclusive.
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.
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?
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.
Bolding mine:
Is that Supreme Court precedent? If so, why doesn’t it preclude this DNA decision?
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.
“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.
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.
The fact that there are other ways to identify someone does nothing to make using DNA to do so unconstitutional. As the court noted:
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.
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.
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.
Speeding is breaking the law. You don’t have to break the law to be arrested or detained.
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.
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.
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.
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.
Dude, common sense says they’re not using it to identify people. Come on.