http://www.law.cornell.edu/supremecourt/text/12-207

This is quite surprising to me. While I do somewhat understand the likening of the DNA to fingerprinting, I'm not at all comfortable with this decision. Certainly the dissenting case I think is much stronger than the majority opinion.

6/3/2013 1:03:23 PM

Concur. Fingerprinting is just a fairly reliable form of identification used without warrants on arrest. DNA is "nothing" but a better means for identification so I can see why it would be allowed.... but DNA goes well beyond just being a unique identifier that deserves privacy.

My gut says SCOTUS got it wrong. Far too much damage can be done with DNA, as compared to fingerprints, where little damage occurs (what is there other than improperly/poorly gathered prints leading to issues, and possible staging with known prints?).

6/3/2013 1:07:42 PM

Why is capturing DNA different than capturing fingerprints? What how does it "go well beyond just being a unique identifier" or how can "far too much damage" be done with it?

6/3/2013 1:26:04 PM

As I understand it, they're not storing your genome. They basically use your DNA to generate a long unique number. They can't use this data to gather physiological information unless they're actually storing your sample.

[Edited on June 3, 2013 at 1:28 PM. Reason : typing accuracy FTL]

6/3/2013 1:27:58 PM

If you are innocent, they should be required to destroy it regardless (and fingerprints)

6/3/2013 1:30:53 PM

Not comfortable at all with this either. With this, the Federal and State governments may start expanding this into mandatory DNA collection for government work similar to how they do fingerprinting for a lot of sensitive government positions, clearances, etc.

Odd combination of dissenting justices too. Never thought I would see Scalia writing a dissent with Kagan, Sotomayor and Ginsburg.

Quote :

"Scalia acknowledged that taking the DNA of arrested people could help solve more crimes. Cops could also solve more crimes if they collected DNA from anyone who enrolls in public school, flies on an airplane, or gets a driver's license, he said. "Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection," Scalia wrote... DNA, like fingerprints or mugshots, is a "legitimate booking procedure" that helps police identify suspects, according to the majority opinion written by swing voter Anthony Kennedy. Scalia says that argument is baloney. DNA testing takes weeks to process, and police almost always get the results long after they've confirmed the identity of people they've arrested. "The court's assertion that DNA is being taken, not to solve crimes, but to identify those in the state's custody taxes the credulity of the credulous," he writes... "Solving unsolved crimes is a noble objective," Scalia writes, "but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches." http://www.businessinsider.com/scalias-dissent-in-maryland-v-king-2013-6#ixzz2VAzzamhX "

6/3/2013 1:48:07 PM

Which is interesting coming from Scalia since he is so adamantly opposed to things like all the innocence projects and appeals.

6/3/2013 1:52:14 PM

Quote :

"Why is capturing DNA different than capturing fingerprints? What how does it "go well beyond just being a unique identifier" or how can "far too much damage" be done with it?"

On the one hand, it really isn't all that different, it's still a biometric unique identifier. On the other hand, we already know fingerprints don't get destroyed, and DNA also exposes much more information about you than just ID. They may not use it that way now, but it's not like the 4th amendment is getting easier to defend. It's simply not something I'm comfortable trusting to a government database. If they have reason to suspect they will gain useful evidence from DNA, sure get the warrant and collect it. But they already use fingerprints to ID you. DNA is redundant for that purpose.

In a way, the collection of DNA (and honestly even fingerprints) before conviction strikes me as a sort of "guilty until proven innocent" sort of thing.

6/3/2013 1:52:28 PM

Quote :

"But they already use fingerprints to ID you. DNA is redundant for that purpose."

It clearly wasn't redundant in the case referenced as it led to a conviction (and presumably could have led to the exoneration of a wrongly accused). That couldn't have happened with just fingerprinting.

I don't know, I'm just not seeing the invasion of privacy of taking DNA at booking. What nefarious end is the gov't going to use your DNA for besides convicting you of a crime you actually committed?

6/3/2013 2:01:43 PM

why does it need to be nefarious to be an invasion of privacy? if i come to your house and peep into your windows, or take video of what you are doing inside your home, is it less of an invasion of privacy if I have no nefarious purpose?

6/3/2013 2:20:01 PM

It's not the nefariousness that bothers me, I just don't see what's private about it. It's identifying information about you. Is the government knowing your name also an invasion of privacy?

6/3/2013 3:52:59 PM

permanent identifying information that they can take and keep even if you are not guilty of any crime

6/3/2013 3:54:37 PM

And what about that is wrong compared to them knowing your name, address, and ssn?

Except in the case that you rape or murder someone and want to get away with it, what are you giving up to the government here? They know your DNA sequence and then (fill in the blank).

6/3/2013 4:03:47 PM

If you've done nothing wrong, you have nothing to fear.

6/3/2013 4:20:06 PM

Quote :

"It clearly wasn't redundant in the case referenced as it led to a conviction (and presumably could have led to the exoneration of a wrongly accused). That couldn't have happened with just fingerprinting."

Except that's not identification. That's investigation. As Scalia wrote in the dissent, we could probably get a lot of convictions if the police were allowed to search every car they legally stopped and the home of every individual they legally arrested without a warrant. We very reasonably do not allow the police to go on fishing expeditions about you unless they have a reason to suspect you have committed a particular crime.

6/3/2013 4:51:33 PM

If fingerprinting at booking is ok, then why is this not? We're not talking about searching your home or your car, we're talking about gathering identifying information. It's akin to taking your mugshot.

I'm not sure comparing id information like fingerprints/DNA/tatoos/whatever against known open cases is unreasonable investigation. Is it unreasonable to run license plates for open cases?

6/3/2013 5:19:33 PM

I'm not so sure fingerprinting on booking should be ok except in the same instance where DNA collection would be ok, when it is collection of evidence in relation to the commission of a specific crime. The fact that we already collect fingerprints without this restriction is not support for the continued expansion of that power. The question is, why should the government be allowed to collect all of this random information about you until you've been charged with a crime? We make some exceptions to the warrant requirement in the case of evidence which may be destroyed or altered before a warrant can be claimed, but it's not like your DNA is going anywhere.

With a person in custody, and given the amount of identifying information we already collect, what compelling state interest is served by obtaining a DNA sample without a warrant?

6/3/2013 5:28:41 PM

Increasing the accuracy rate of the justice system. They get to exonerate innocent people and catch bad people. Seems like a massive state interest.

What I fail to see is the infringement here. I don't think capturing DNA is unreasonable (we're not talking about drawing blood here) or a real "expansion" of powers beyond fingerprinting or mugshots. What rights are we losing here? I'm not talking about going door to door and cataloging everyone, but if we're taking prints and shots at felony arrest bookings, why not cheek swabs too? What's special about them is what I don't get.

6/3/2013 5:37:12 PM

Quote :

"Increasing the accuracy rate of the justice system. They get to exonerate innocent people and catch bad people. Seems like a massive state interest."

You would hope that would be the case, but it's not. The state fights tooth and nail against exoneration in almost every instance. If the justice system were more interested in justice it would be great, but they're more interested in conviction rates and closing cases.

6/3/2013 6:17:03 PM

This has been going on for about 3 years in NC.

http://www.ncga.state.nc.us/EnactedLegislation/Statutes/PDF/ByArticle/Chapter_15A/Article_13.pdf

6/3/2013 9:30:32 PM

Quote :

"Increasing the accuracy rate of the justice system. They get to exonerate innocent people and catch bad people. Seems like a massive state interest."

And what part of them getting a warrant prevents this?

6/3/2013 10:06:57 PM

They say the can only collect it if you're arrested for a "major crime"

What is a major crime? Murder/armed robbery/rape? How about simple assault?

6/3/2013 10:57:30 PM

From the post Restricted made:

Quote :

"This section shall apply to a person arrested for violating any one of the following offenses in Chapter 14 of the General Statutes: (1) G.S. 14-17, First and Second Degree Murder. (2) G.S. 14-18, Manslaughter. (3) Any offense in Article 7A, Rape and Other Sex Offenses. (4) G.S. 14-32, Felonious assault with deadly weapon with intent to kill or inflicting serious injury; G.S. 14-32.4(a), Assault inflicting serious bodily injury; G.S. 14-34.2, Assault with a firearm or other deadly weapon upon governmental officers or employees, company police officers, or campus police officers; G.S. 14-34.5, Assault with a firearm on a law enforcement, probation, or parole officer or on a person employed at a State or local detention facility; G.S. 14-34.6, Assault or affray on a firefighter, an emergency medical technician, medical responder, emergency department nurse, or emergency department physician; and G.S. 14-34.7, Assault inflicting serious injury on a law enforcement, probation, or parole officer or on a person employed at a State or local detention facility. (5) Any offense in Article 10, Kidnapping and Abduction, or Article 10A, Human Trafficking. (6) G.S. 14-51, First and second degree burglary; G.S. 14-53, Breaking out of dwelling house burglary; G.S. 14-54.1, Breaking or entering a place of religious worship; and G.S. 14-57, Burglary with explosives. (7) Any offense in Article 15, Arson. (8) G.S. 14-87, Armed robbery. (9) Any offense which would require the person to register under the provisions of Article 27A of Chapter 14 of the General Statutes, Sex Offender and Public Protection Registration Programs. (10) G.S. 14-196.3, Cyberstalking. (11) G.S. 14-277.3A, Stalking. NC General Statutes - Chapter 15A Article 13 4 (g) This section shall also apply to a person arrested for attempting, solicitation of another to commit, conspiracy to commit, or aiding and abetting another to commit, any of the violations included in subsection (f) of this section"

Quote :

"And what part of them getting a warrant prevents this?"

They've already been lawfully arrested, why do they need a warrant? If the arrest was unlawful I'm almost certain the data will be expunged (there's even a provision for that in the statute linked above). At the very least it would definitely at that point be inadmissible.

Do you also think they should get a warrant for collecting fingerprints or taking a mugshot? What's the difference?

[Edited on June 3, 2013 at 11:06 PM. Reason : .]

6/3/2013 11:05:18 PM

Also, if you are arrested and there is no probable cause found, the DNA sample is not taken. So thus being arrested doesn't always mean a sample will be taken. Now if you are arrested on a pre-existing warrant for one of the above crimes, the sample gets taken because a judicial official has already found probable cause.

[Edited on June 4, 2013 at 6:59 AM. Reason : ...]

6/4/2013 6:57:43 AM

we're talking about a constitutional issue for all states, not how each and every state gets DNA

6/4/2013 7:15:40 AM

Quote :

"They've already been lawfully arrested, why do they need a warrant?"

Because we require warrants for searches, its kind of one of the cornerstones of our legal system.

6/4/2013 12:44:39 PM

Good analysis on the decision and the state of NC's law from the School of Govt. Crim Law blog:

http://nccriminallaw.sog.unc.edu/?p=4294

6/4/2013 12:46:52 PM

Quote :

"Because we require warrants for searches, its kind of one of the cornerstones of our legal system."

We don't require warrants to reasonably search arrested persons. Should the cops be required to get a warrant to search your person for weapons or other dangerous and/or incriminating evidence when you're brought into the station?

[Edited on June 4, 2013 at 2:07 PM. Reason : emphasis on reasonableness]

6/4/2013 2:03:41 PM

Right, we don't require warrants for searches incident to arrest for compelling state interest or for items that pose an immediate danger to the safety of the officer. So what danger does the DNA of the arrested person pose to the officer that it must be collected without a warrant. But AFAIK, if you have a laptop on you and you're arrested for assault (say you get into a bar fight), the police still can't search your laptop for evidence that you're a dirty terrorist without first obtaining a warrant expressing why they believe you're a dirty terrorist and you have dirty terrorist evidence on your computer.

6/4/2013 2:47:19 PM

they'll search and make a copy of your phone without a warrant

6/4/2013 3:03:05 PM

Quote :

"Right, we don't require warrants for searches incident to arrest for compelling state interest or for items that pose an immediate danger to the safety of the officer. So what danger does the DNA of the arrested person pose to the officer that it must be collected without a warrant. But AFAIK, if you have a laptop on you and you're arrested for assault (say you get into a bar fight), the police still can't search your laptop for evidence that you're a dirty terrorist without first obtaining a warrant expressing why they believe you're a dirty terrorist and you have dirty terrorist evidence on your computer"

So a cheek swab is more analogous to accessing a laptop than taking fingerprints because.....?

6/4/2013 3:53:13 PM

a fingerprint can't tell you who parents or children are, what your ethnic background is, if you have genetic disorders, etc...

but that's not the point, a fingerprint is used for identification and the DNA swab is not (and was not in that case)

edit: yes, I understand that there are rules about what information they take from DNA. But they could get more information, so its an invasion of privacy and should require a justified motive to do so without a warrant. there is not one.

[Edited on June 4, 2013 at 4:44 PM. Reason : edit]

6/4/2013 4:37:54 PM

This will prove very useful during the next ethnic cleansing.

6/5/2013 8:11:27 AM

Quote :

"a fingerprint can't tell you who parents or children are, what your ethnic background is, if you have genetic disorders, etc..."

Unless they're storing your samples (expensive) they can't tell these things from the DNA information they're collecting. The type of data they're generating is a unique code, a number, based on your DNA. All you can do with it is ID someone.

6/5/2013 8:09:01 PM