If they could collect DNA samples from, say pressing your finger on a computer screen, or by plucking a hair, you’d be OK with that? Is it strictly the manner of collection?
The number of sexual assaults is relatively static, and it remains the most difficult violent crime to prosecute. What crime do you think the collection of DNA is best tailored to solve?
Possibly. Although there would still be the issue of it being redundant. I can accept the idea of routine fingerprinting because of the need for a means of positive identification. But there’s no pressing need for a second form of positive identification.
Really? Are you talking about routine identification? Because I’d be surprised if this was true.
As I noted above, I’m not talking about identifying somebody as a suspect in a crime - that’s investigation.
But how can a claim that we’re collecting DNA for identification purposes be anything but a pretense when we don’t have the technology to use DNA for routine identification? And our current procedures reflect this by the fact we don’t use DNA for identification?
I’m not sure constitutionality should come down to “yeah, well, fingerprints are worse, but they’ll do OK, I guess”.
"Perhaps the most direct historical analogue to the DNA technology used to identify respondent is the familiar practice of fingerprinting arrestees. From the advent of this technique, courts had no trouble determining that fingerprinting was a natural part of “the administrative steps incident to arrest.”
“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 respondent’s primary objection to this analogy is that DNA identification is not as fast as fingerprinting, and so it should not be considered to be the 21st-century equivalent. See Tr. of Oral Arg. 53. But rapid analysis of fingerprints is itself of recent vintage. It was not the advent of this technology that rendered fingerprint analysis constitutional in a single moment. The question of how long it takes to process identifying information obtained from a valid search goes only to the efficacy of the search for its purpose of prompt identification, not the constitutionality of the search.”
So, the argument is that DNA is not available for identification, not used for identification, but because hypothetically, in the future, technology may advance to where DNA is processed like fingerprints, because fingerprint technology advanced along those same lines, we will hold that DNA is like fingerprints?
Wow. That is amazing. I propose that we punch all arrestees in the genitals for identification purposes. How you say? Well, we can’t do it now, but in the future, I’m sure technology will develop that allows identification by genital punching.
Nope. DNA is available for identification, it is used for identification, but it isn’t as instantaneous as fingerprinting. I’m not sure how you got your conclusion from the judicial opinion, unless you were really interested in punching people in the genitals.
It is not used for the administrative type of identification that the states have alluded to, but for general criminal identification which is abhorrent to the 4th amendment.
With fingerprinting, the authorities compare it with the federal database to make sure that John Smith that they arrested for DUI isn’t really Bill Turner, noted serial killer, wanted in 4 other states before releasing him on a personal recognizance bond.
This can’t be done with DNA, and it isn’t done with DNA. Arraignment comes and goes even if John is really matched with Bill via DNA.
But the Court seems to say that “Well, maybe one day in the future, DNA can be used like fingerprints, so it is okay.” That is absurd. Maybe genital punching can be used like fingerprints one day. Maybe anal probing can be used like fingerprints one day. Maybe, so let’s make everything constitutional because of “one day.”
That’s not my argument. My argument is that fingerprinting works. You’re the one claiming we need a better system.
I always try to avoid asking for cites because I feel that’s too often used as nothing more than a tool to hide a weak argument. But in this case, I feel it’s necessary.
Can you provide any examples of problems resulting from fingerprints being inadequate as a means of identification? Offhand (no pun intended) the only example I can think of is some extremely unusual situation where a person who’s been arrested doesn’t have fingers. And I’ve dealt with that - we ID’ed him with a footprint.
On the other side of your argument, can you provide any examples of any legal system that is using DNA for identification?
How, do you suppose, fingerprinting got to the point of being able to be used for the “administrative type of identification”? Do you figure that all of sudden, in 1999, millions of fingerprint cards suddenly popped into existence and spontaneously separated themselves into a searchable database, thus allowing IAFIS to go through them?
Or is it more feasible that fingerprints were taken at arrest for decades, thus building a database that could be compiled to compare unknown fingerprints to?
Me? I’m going with the latter.
And that’s one of the purposes of having these laws allowing the taking of DNA upon arrest, to create that database against which future arrestees can be compared to.
Which is why I started in this thread confused as to how Scalia doesn’t address the issue of gathering those fingerprints before they could be compiled and searched in 1999. It’s the same thing they are trying to do now with DNA.
Do you actually think DNA is incapable of being compared like this? That’s just silly. It can be, and sometimes is. The problem is that they don’t have the database to compare it to yet, nor the means to do a rapid search to match it up yet. But until they actually start taking DNA from arrestees, they won’t be able to create that database.
You know, we have a very easy analogy already … fingerprinting. I’m not sure what your obsession with genital punching and anal probing has to do with anything.
Actually, it’s the state legislatures that claim they want a better system. And I don’t think it’s up to the judiciary to say "well, fingerprints are good enough, so poof it’s unconstitutional.
Have you read the opinion? “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.”
Do you actually contest that DNA is better than fingerprinting? Or do you imagine that fingerprinting is flawless, so it can’t get any better?
“Based on latent print acceptance test requirements commonly found in AFIS proposals and contracts, the chances of a latent print finding its mate in the database is about 70 to 80%. Naturally, the better the latent image, the higher the chances of success. Inversely, the chance of missing an identification, even when the mate is in the database, is 25%.” from here
“Computer technologies in AFIS and IAFIS programs have failed to keep up, much less stay ahead. How is it, these computer AFIS companies cannot develop a system that is more effective? As of several years ago, most systems were only 60-65% accurate.” from here
As to DNA not being able to be used for identification, I don’t follow at all. That’s what it is for, for identifying people. You take one bit of DNA, compared it to another (or hundreds and thousands of others) and if they match, you have an identification. That’s kinda the purpose of DNA testing.
Hamlet, you’re still confused about what the issue is. Identification and investigation are two separate issues. You don’t need a database for identification. A database is what you need for investigation.
It seems like it’s the other way around, isn’t it? If we have a database, and you’re brought in, and we don’t know who you are, I can swipe your cheek and say, “Hmm, this DNA matches Little Nemo’s on the database. He must be Little Nemo.”
Without a database, I can’t do that. I’d get your DNA sample, and I still wouldn’t be able to identify who you were. But if I arrest you, and take your DNA, and, without a database, compare it to DNA we found at the crime scene, I’ll be able to use that in my investigation. I’ll be able to say, “Hey, this guy has the same DNA that we found at the crime scene. He must be the murderer. He still won’t tell us his name, so we can’t identify him, but he did it.”
I’m not confused in the least. It’s people who think the identification of someone can occur without an already identified DNA sample and who think that sample just pops into existence who have trouble following my point.
To identify a person, you need a current sample and a sample that is already identified. You compare the one to the other, and if they match, BINGO, you have an identification. But that identification will never work unless you have the already identified sample. And how fingerprinting, and now DNA, got that sample was … taking them when someone was arrested. You can’t identify an arrestee with fingerprints or DNA without having an already identified sample. Which, in the case of fingerprinting and now DNA collection, were taken when the person was arrested previously.
Maybe I didn’t walk you through the process of identification slow enough or explain how it is supposed to work, but it’s not me who is confused.
ETA: Ninja’ed by Captain Amazing.
I have yet to assert “the ONLY purpose for collecting DNA is to solve other cases.” However, it is the fact the collection of DNA in this case is used to “solve other cases” that I find problematic and an opinion obsessing over identification while failing to address this other purpose of the DNA collection in this case is a faulty opinion.
This is where perhaps J. Scalia espouses the strongest argument. Essentially, J. Scalia’s argument can be summarized as follows. The DNA in this case is not only being used for identification but also to solve other crimes and potentially used as evidence in a criminal case. At the time the DNA is taken it is know to law enforcement officers that the DNA will be entered into a database and compared to DNA from open yet unsolved crimes and if there is a match, the analysis of the DNA linking the subject DNA to the DNA at the crime scene of an unsolved case will then be used to prosecute the subject. The argument justifying the taking of the DNA on the basis of identification cannot justify the taking of the DNA to solve crimes and use the DNA as evidence in a criminal case. A search and seizure of evidence of a crime usually requires a warrant unless it can be justified under one of the exceptions to the warrant requirement. In this case, there isn’t any such exception justifying the warrantless taking of the DNA and comparing it to the DNA of unsolved crimes and then, upon a match, using the analysis establishing a match as evidence in a criminal prosecution.
Now, the majority did not satisfactorily address this aspect of the DNA collection in their decision and focusing on one half of the equation, the identification component, does not adequately address the other half of the equation, taking the DNA to compare it to DNA from unsolved crime scenes and potentially using any match as evidence in a criminal prosecution.
I agree this is not his best dissent but he does make his point in rather unequivocal terms. The taking of DNA in this case has as much to do with looking for evidence of a crime and using the evidence in a criminal case as it does with identification and the warrantless search and seizure of this evidence cannot be justified by the proverbial “identification” doctrine, the search and seizure of the evidence was conducted without a warrant, and there isn’t a warrant exception justifying the search and seizure of the evidence.
To you does the fact that there are dual purposes make the legislation unconstitutional? Is the testing of the DNA (or fingerprinting before that) against unsolved crimes a separate search that needs to be justified under the 4th Amendment? Or is the taking of DNA upon arrest for identification disallowed, simply because it could be used to test against unidentified DNA? And how does that differ from fingerprinting?
These are the tough questions that Scalia just dodges. He draws his conclusion and states his position vehemently, but with little actual legal analysis and forward thinking. He’s much more interested in being Rush Limbaugh than Learned Hand.
The seizure of the DNA was for identification (so they could have it in the future if Mr. King ever got arrested again) and to test it against unsolved crimes. As such, I think the seizure of the DNA was allowable under the 4th Amendment, just as fingerprints had been for decades before it was easily searchable.
You do need a database for identification. Without a database for identification purposes, then how can law enforcement evern know with certainty they know who they are dealing with?
You don’t use a database for routine identification.
A guy shows up and you want to know if he’s John Smith so you fingerprint him. You don’t submit a request for a database search and have the FBI search through a couple hundred million sets of fingerprints and see if the one they find is a match that belongs to John Smith. That would be stupid.
No, what you do is fingerprint him and then compare his fingerprints to John Smith’s fingerprints and see if they match. That’s how routine identification works.
Now if you have an unidentified person or if you want to see if a person has committed any crimes in the past, you conduct an investigation. That’s when you run a database search and compare one person’s fingerprints to all of the fingerprints that are on file.
Little Nemo. I’m curious where you get your information, because it doesn’t fit with any of my experience. From my experience, the jail takes an arrestee’s fingerprint on a LiveScan, which scans it, sends it to the State Police (police departments are required to submit fingerprints of all arrestee’s, and roughly 2/3 of them use LiveScan), and the State Police database sends back a verification of identity within a couple hours (in a great majority of cases). I don’t know of any departments that have some guy compare prints matching the name for identity verification, but perhaps you know some.
And, once again, what do you suppose the comparison is being made against? That’s right, a previously obtained sample, oftentimes from a prior arrest. And States are well within their power, and within the constitution, to obtain those samples upon arrest. The same is true whether we’re talking about fingerprints or DNA.
I have to go with Hamlet, on this.
You don’t have to ‘submit a request for a database search’, simply finger printing someone and entering that information into the IAFIS system is, in fact, searching that data base.
If they’re already in the system, it confirms that persons identity.
Hamlet, sorry for the delayed response but work has been busy the past week. Hopefully you see this post and reply.
I think J. Scalia’s dissent is a substantive rebuttal of the majority decision. Yes, to be sure, he is acrimonious at times in his dissent but he does articulate a reasoned rebuke of the majority opinion and supports it with evidence.
J. Scalia provides a brief history of the 4th Amendment and espouses a general rule the 4th Amendment requires individualized suspicion to collect evidence of a crime and the exceptions to this rule have never been to satisfy “the normal need for law enforcement.” Searches and seizures for the purpose of “crime detection” do not receive the reasonableness analysis. J. Scalia says the facts of the case demonstrate the taking of the DNA is done for “crime detection” and “discovering evidence of criminal wrongdoing” as opposed to identifying the subject.
The FBI’s DNA database (known as CODIS) consists of two distinct collections…One of them, the one to which King’s DNA was submitted, consists of DNA samples taken from known convicts or arrestees. I will refer to this as the “Convict and Arrestee Collection.” The other collection consists of samples taken from crime scenes; I will refer to this as the “Unsolved Crimes Collection.” The Convict and Arrestee Collection stores “no names or other personal identifiers of the offenders, arrestees, or detainees.” Ibid. Rather, it contains only the DNA profile itself, the name of the agency that submitted it, the laboratorypersonnel who analyzed it, and an identification number for the specimen. Ibid. This is because the submitting state laboratories are expected already to know the identities of the convicts and arrestees from whom samples are taken. (And, of course, they do.)
Moreover, the CODIS system works by checking to see whether any of the samples in the Unsolved Crimes Collection match any of the samples in the Convict and Arrestee Collection. Ibid. That is sensible, if what one wants to do is solve those cold cases, but note what it requires: that the identity of the people whose DNA has been entered in the Convict and Arrestee Collection already be known. If one wanted to identify someone in custody using his DNA, the logical thing to do would be tocompare that DNA against the Convict and Arrestee Collection: to search, in other words, the collection that could be used (by checking back with the submitting state agency) to identify people, rather than the collection of evidence from unsolved crimes, whose perpetrators areby definition unknown. But that is not what was done. And that is because this search had nothing to do with identification…
That taking DNA samples from arrestees has nothing todo with identifying them is confirmed not just by actualpractice (which the Court ignores) but by the enablingstatute itself (which the Court also ignores). The Maryland Act at issue has a section helpfully entitled “Purpose of collecting and testing DNA samples.” Md. Pub. Saf. Code Ann. §2–505. (One would expect such a section to play a somewhat larger role in the Court’s analysis of the Act’s purpose—which is to say, at least some role.) That provision lists five purposes for which DNA samples may be tested. By this point, it will not surprise the reader tolearn that the Court’s imagined purpose is not among them. Instead, the law provides that DNA samples are collectedand tested, as a matter of Maryland law, “as part of anofficial investigation into a crime.” §2–505(a)(2). (Or, asour suspicionless-search cases would put it: for ordinary law-enforcement purposes.) That is certainly how everyone has always understood the Maryland Act until today
These are very salient facts. There isn’t any identification occurring under the facts of this case. Under the facts of the case, law enforcement wasn’t collecting DNA for the purpose of identifying the subject and the Maryland statute was not conceived for this purpose. Law enforcement is collecting DNA to solve crime.
J. Scalia does address the fingerprint issue in his dissent. It seems to me J. Scalia is of the opinion the taking of fingerprints for purposes of solving a crime has never been decided by the Court but merely assumed to be permissible in its decisions. Apparently, J. Scalia is making the point the Court should address the issue of taking fingerprints for purposes of solving a crime in some future case as opposed to assuming its constitutionality. As a result, I do not expect J. Scalia to comment upon the constitutionality of taking fingerprints to solve a crime when he is asserting such a question has not been decided by the Court and the issue is not before the Court in this case.
No, it is the fact the law itself and law enforcement conduct do not support any notion the DNA was taken for identification purposes but to solve crime.