DNA gathering legal once arrested

[Magiver]

@LonghornDave

Yes, here’s from the majority opinion.

In this case, the DNA testing did not take place until after arraignment months after the arrest. It seems fairly clear that it was not tested for identification purposes.

If this is the argument then this is the most bizarre thing to every come out of the SC.

[UltraVires]

@pravnik

This, and every post Hamlet has made thus far, nails it. There seems to be an assumption that the justifiction of DNA databases for identification is a sham because fingerprints are always easily sufficient to easily identify defendants and to link them to their current and prior offenses. If it’s actually ever been your job to do that, you know that’s simply not true. Records degrade due to human error like bad fingerprinting and to things like the only available fingerprint card linking an individual to a criminal record being an archived 30 year old seventh generation Xerox smudge of what may have once been a fingerprint. Every experienced criminal prosecutor in the United States has tried cases where they had to prove prior offenses with fingerprints so poorly taken or so poorly preserved with crappy recordkeeping that it was necessary to prove the defendant’s priors by tattoos, scars, mugshots, nicknames, or other dicey methods in the absence of good prints. With that problem persistantly staring prosecutors in the face, how can you not justify a modernized backup system of identification that DNA collection clears up easily? Once that system is legitimately in place, why shouldn’t it be used exactly like IAFIS is with fingerprints to identify unknown rapists and murderers?

I agree with Scalia that we seemed to just have accepted fingerprints as okay without actually questioning them, but I can see a distinction. Fingerprints are not a search. They are in plain view (with assistance from ink blotters). DNA swabs are a physical intrusion into the sanctity of the body and are certainly a search.

And again, as Scalia pointed out, it is absurd to state that they are used for identification purposes when it isn’t even processed until after the arrestee has been arraigned and released on bail. It’s a crime fighting tool, pure and simple.

[elucidator]

@jtgain

…DNA swabs are a physical intrusion into the sanctity of the body and are certainly a search…

Wouldn’t have to be. How hard is it to get a sample of somebody’s DNA? They drink a cup of coffee, throw away the paper cup. DNA. Drop a cigarette but? DNA. Change their underwear? Oh, you better believe that’s a DNA…

[Honesty]

@Cheesesteak

I see DNA “fingerprinting” as being analogous to regular fingerprinting. You rub a piece of the person against a surface, analyze what remains on the surface. During future criminal activity, if any evidence is gathered that can be similarly analyzed, you can cross reference to the database.

You’re using a phallic object to penetrate an orifice: a mouth. It’s certainly different than rubbing a “piece of a person against a surface”.

• Honesty

[Honesty]

@YogSosoth

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

When is a mouth swab unintrusive? Or an anal swab or a vaginal swab unintrusive? I think benefits are stupid, and people who give up their liberty for safety don’t deserve neither. It would be much better to pull a *Gattica * and collect DNA sample from birth with new samples harvested every four years. Given that the U.S crime rate has decreased to rate lows, our preoccupation with violent crime is overblown, unnecessary, a likely a proxy for something else.

• Honesty

[Cheesesteak]

@Honesty

You’re using a phallic object to penetrate an orifice: a mouth. It’s certainly different than rubbing a “piece of a person against a surface”.

A swab is not a phallic object, anymore than a toothpick or a tongue depressor is a phallic object. Would it cease to be objectionable if we asked the person to stick a sterile sample gathering spoon in their mouth?

Human beings routinely, and without issue, put things in and out of their mouths, in public, in full view of other people. There’s nothing sexual about putting a french fry (just as phallic as a swab) in your mouth.

[Max_Torque]

So, warrantless (and suspicionless and unrelated to reason for arrest) DNA = fine and dandy.

But warrantless DWI blood draw (supported by probable cause relating to offense) = nope, better get a warrant.

Something funny going on around here…

Incidentally, on the issue of blood draws: the Supreme Court, in Schmerber v. California back in 1966, stated, “Such tests are a commonplace in these days of periodic physical examination, and experience with them teaches that the quantity of blood extracted is minimal, and that, for most people, the procedure involves virtually no risk, trauma, or pain…That we today hold that the Constitution does not forbid the States minor intrusions into an individual’s body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.” In short, blood draw = minor intrusion.

[Really_Not_All_That_Bright]

SCOTUS receded fro Schmerber a long time ago, at least as to whether drawing blood was a minor intrusion.

[Magiver]

I would think the word “warrantless” would end any of this conversation.

[Really_Not_All_That_Bright]

Why? There’s no general requirement for a warrant for arrests (unlike searches).

[Hamlet]

@Really_Not_All_That_Bright

Why? There’s no general requirement for a warrant for arrests (unlike searches).

Or for fingerprinting.

[Max_Torque]

@Really_Not_All_That_Bright

Why? There’s no general requirement for a warrant for arrests (unlike searches).

Sorta. In Texas, statutory authority is required to arrest in the absence of an arrest warrant. But, Article 14 of the Code of Criminal Procedure lists a bunch of valid reasons for warrantless arrests.

[Duke_of_Rat]

@pravnik

This, and every post Hamlet has made thus far, nails it. There seems to be an assumption that the justifiction of DNA databases for identification is a sham because fingerprints are always easily sufficient to easily identify defendants and to link them to their current and prior offenses. If it’s actually ever been your job to do that, you know that’s simply not true. Records degrade due to human error like bad fingerprinting and to things like the only available fingerprint card linking an individual to a criminal record being an archived 30 year old seventh generation Xerox smudge of what may have once been a fingerprint. Every experienced criminal prosecutor in the United States has tried cases where they had to prove prior offenses with fingerprints so poorly taken or so poorly preserved with crappy recordkeeping that it was necessary to prove the defendant’s priors by tattoos, scars, mugshots, nicknames, or other dicey methods in the absence of good prints. With that problem persistantly staring prosecutors in the face, how can you not justify a modernized backup system of identification that DNA collection clears up easily? Once that system is legitimately in place, why shouldn’t it be used exactly like IAFIS is with fingerprints to identify unknown rapists and murderers?

The main deficiency I see is that it’d be hard for me to place his fingerprints at the scene of a crime, but elucidator’s cigarette butt, paper cup, or underwear would have plenty of DNA to place him at the scene. Must be so, infallible DNA testing confirms it.

[UltraVires]

@Cheesesteak

Human beings routinely, and without issue, put things in and out of their mouths, in public, in full view of other people. There’s nothing sexual about putting a french fry (just as phallic as a swab) in your mouth.

I agree with the whole phallic thing, but the intrusion is what is important. If you put a french fry in your mouth, then you don’t care, nor would you be embarrassed to have anyone see it.

OTOH, if I forcibly jammed a french fry into your mouth, not only against your will, but with the approval and with the power of the state, well, that would be a different story, no?

[Little_Nemo]

@Hamlet

But they will. That’s one of the reasons why 28 states have this kind of legislation. Let’s remember that it took fingerprinting almost 100 years to go from being used in prison to identify inmates in New York to having an easily searchable database (that, as pravik pointed out, is anything but infallible). DNA testing is going to, eventually, do the same thing, but with more even accuracy. States realize this, hell, the model is already there. So they’ve been starting the system that will eventually take over for fingerprints.

It seems to me even Scalia’s dissent recognizes the problem by writing his dissent in such a way that his argument would be irrelevant once the technology of DNA identification catches up with fingerprinting (and completely dodging the issue of the collection of fingerprinting before it could be easily searchable). Right at this moment, it isn’t possible to, but most knowledgeable people seem to think it will be, and relatively soon. I don’t see how it is unconstitutional to start to create a system that will do the same thing that fingerprinting currently is, but only better.

But no state is currently using DNA for routine identification now in 2013. The technology simply hasn’t reached a level where it could be. Fingerprints are the primary method of identification in our legal system and will remain so for the foreseeable future.

DNA collection is being used for investigatory purposes. That’s the plain and simple truth.

So it appears that we’re collecting evidence for investigations but we’re agreeing to pretend it’s for identification. Any legal precedent that requires this kind of deception is obviously really questionable.

[Really_Not_All_That_Bright]

@Max_Torque

Sorta. In Texas, statutory authority is required to arrest in the absence of an arrest warrant. But, Article 14 of the Code of Criminal Procedure lists a bunch of valid reasons for warrantless arrests.

In terms of the federal constitution, I mean. I’m sure there are other exceptions at state law.

[scratch_llll]

@jtgain

I agree with the whole phallic thing, but the intrusion is what is important. If you put a french fry in your mouth, then you don’t care, nor would you be embarrassed to have anyone see it.

OTOH, if I forcibly jammed a french fry into your mouth, not only against your will, but with the approval and with the power of the state, well, that would be a different story, no?

Nobody is posting pictures of the process but if they do I have to say I don’t give a damn. French fry or swab? Not a damn. Still not a dick. Surface of finger? It’s a skin surface. Surface of cheek? It’s a skin surface. A cigar is a cigar and not a dick. A french fry is not a dick. A swab is not a dick. To equate them is bizzare. A picture of a swab in my cheek? WTF? NOT a problem. Still not a dick. Not even close.

[Hamlet]

@Little_Nemo

But no state is currently using DNA for routine identification now in 2013. The technology simply hasn’t reached a level where it could be. Fingerprints are the primary method of identification in our legal system and will remain so for the foreseeable future.

So when it is used for routine identification, you’ll agree that it is constitutional? The technological advancement in DNA is, to you, what is keeping it from being constitutional?

@Little Nemo

DNA collection is being used for investigatory purposes. That’s the plain and simple truth.

Yes. And it’s being used for identification of people in the criminal justice system, just like fingerprint collection for the decades before it was routinely used.

@Little Nemo

So it appears that we’re collecting evidence for investigations but we’re agreeing to pretend it’s for identification. Any legal precedent that requires this kind of deception is obviously really questionable.

We’re not pretending anything. Some of recognize that laws can, and do, have more than one purpose. And a law that looks ahead to a time when DNA can be used to better identify people in the criminal justice system doesn’t magically become unconstitutional because the technology hasn’t advanced far enough to make it routine. Just like fingerprinting.

[lawbuff]

@Max_Torque

Sorta. In Texas, statutory authority is required to arrest in the absence of an arrest warrant. But, Article 14 of the Code of Criminal Procedure lists a bunch of valid reasons for warrantless arrests.

In addition to Art. 14, this started the whole Atwater case;

Transportation code;

§ 543.001. ARREST WITHOUT WARRANT AUTHORIZED. Any peace
officer may arrest without warrant a person found committing a
violation of this subtitle.

Ohio does NOT permits an arrest for a money fine only offense (Minor Misdemeanor) even if committed in the officer’s presence, so in that respect, our Constitution affords more protection than the 4th AM, but generally our S&S clause is “co-extensive” with the 4th.

There are exceptions, for instance if the person refuses to sign the citation, then they can be arrested.
Montana follows the same, no arrest for a money fine only offense.

[Honesty]

@Cheesesteak

A swab is not a phallic object, anymore than a toothpick or a tongue depressor is a phallic object.

I’ll let the phallic thing go - for now - but I’ll say we can agree to disagree on that one. Moving on . . .

@Cheesesteak

Would it cease to be objectionable if we asked the person to stick a sterile sample gathering spoon in their mouth?

That’s still, unfortunately, unacceptable. To help you on this standard: penetration of a mucosal or an epithelial surface would make DNA collection unacceptable. You see, when you live in a universe where all criminals have unique fingerprints, have unique facial features that can be photographed, and slough off millions of cells per day in the form of dead skin and hair, there’s no reason for anyone to be forced to open their maw to get their cheeks swabbed. My position is not immovable. If there were an unusual spike in unsolved, violent crimes or any other palpable national security risk why this kind of genetic library ought to be constructed, I could be on board with buccal swabs. However, this is not the case, in fact, violent crime is at record lows and incarceration as it at an all time high. It ought to suggest that the current tools that law enforcement possess are sufficient in keeping crime rates low, not that we ought to make a DNA archive of every criminal in perpetuity.

@Cheesesteak

Human beings routinely, and without issue, put things in and out of their mouths, in public, in full view of other people. There’s nothing sexual about putting a french fry (just as phallic as a swab) in your mouth.

Here’s where you lose me. So, if I photograph you, take your fingerprints, and forcibly insert a swab inside your mouth, you’re telling me the latter is less intrusive than the the first two?

• Honesty