In a blow to civil liberties, the Supreme Court yesterday voted 5-4 to allow police to collect DNA from suspects arrested in serious crime cases. The decision by Justice Anthony Kennedy opens the door for the collection and retention of a massive DNA databank by the states and federal government. The decision produced a strange lineup with Justice Antonin Scalia writing a dissent (with Ginsburg, Sotomayor, and Kagan) and normally liberal Justice Stephen Breyer joining Kennedy, Thomas, Alito, and Roberts. It is a disastrous case for Breyer to lose his bearings. His switch denied the creation of a bright line rule protecting privacy and forestalling such a databank.
The case involves Alonzo King Jr., who was arrested in 2009 for menacing a group of people with a shotgun. Under state law, police took the DNA sample and it was matched with a sample collected in a 2003 unsolved rape case leading to a later rape conviction. It was a telling case since critics have insisted that the samples have little to do with identification or processing a suspect, but rather investigating other crimes.
Kennedy was fairly dismissive over the intrusion of a swab and the collection of a DNA sample in his opinion. He insisted that it was much “like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.” That is a bizarre claim since the DNA sample carries far more extensive information on a person and can be used to a far greater extent in future searches or testing by police. Kennedy also bought the rather implausible argument that this is merely used to confirm criminal history and identify individuals in custody. In 99.999% of case, the identity of the subject is not in dispute and easily confirmable from computer systems. This is about solving past crimes and creating a data bank for future investigations.
Where Breyer forgot his civil liberties roots, Scalia remembered his libertarians roots.
Scalia mocked (rightfully) Kennedy’s logic; “Today’s judgment will, to be sure, have the beneficial effect of solving more crimes,” Scalia said. “Then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the ‘identity’ of the flying public), applies for a driver’s license, or attends a public school. 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.”
The court majority ruled against Alonzo King Jr., who was arrested in 2009 based on accusations he menaced a group of people with a shotgun. Police took a DNA swab of his cheek as part of a routine booking procedure for serious offenses in Maryland. The DNA profile matched a sample collected in a 2003 unsolved rape case, leading to King’s trial and conviction on the rape charge.
Under Maryland law, DNA may be collected for those arrested for offenses including crimes of violence, attempted crimes of violence, burglary and attempted burglary. Crimes of violence include murder, rape, first-degree assault, kidnapping and arson.
Kennedy said ascertaining a suspect’s identity and criminal history are critical when there is probable cause for arrest. Both serial killer Joel Rifkin and Oklahoma City bomber Timothy McVeigh were stopped for driving without a license plate, for example.
“An individual’s identity is more than just his name or Social Security number, and the government’s interest in identification goes beyond ensuring that the proper name is typed on the indictment,” Kennedy wrote. Police take a mug shot and show it to witnesses; they take fingerprints and compare it to a database. “In this respect the only difference between DNA analysis and the accepted use of fingerprint databases is the unparalleled accuracy DNA provides,” Kennedy said.
When police use the suspect’s DNA profile to search records in their possession, it “is no different than matching an arrestee’s face to a wanted poster of a previously unidentified suspect; or matching tattoos to known gang symbols to reveal a criminal affiliation; or matching the arrestee’s fingerprints to those recovered from a crime scene,” Kennedy said. DNA collection also helps officers know the type of person they are detaining, helps determine whether a suspect has a record and is inclined to flee, and helps assess the danger to the public if the suspect is freed on bail.
“By comparison to this substantial government interest and the unique effectiveness of DNA identification,” Kennedy said, “the intrusion of a cheek swab to obtain a DNA sample is a minimal one.”
The analysis could change, Kennedy said, if technological changes make it possible to “analyze samples to determine, for instance, an arrestee’s predisposition for a particular disease or other hereditary factors not relevant to identity.”
Scalia’s dissent, however, predicted that the decision will eventually be extended to arrests for less serious crimes. “Make no mistake about it,” he wrote. “As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.”
What is interesting is that Alito said in oral argument that the case was “the most important criminal procedural case that this court has heard in decades.” Most people assumed that he was speaking of the danger to individual rights, but they do not know Alito who votes almost uniformly for police powers, as he did as a lower court judge. He joined the majority in stripping citizens of protections from such searches.
The majority did what is has always done when reducing privacy or individual rights: it suggested it was ruling narrowly by stressing that this is a case involving a major felony. However, that distinction is lost on the rationale that such testing is akin to fingerprinting and simply another form of identification. Scalia’s prediction is all too likely to come true: “Make no mistake about it. As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.”
Here is the opinion: 12-207_d18e
SWM, Good analysis. Kennedy looks not like a lightweight, but a flyweight, on this one.
Dredd:
that video is good stuff.
Ralph Adamo:
it does seem that way. I take it you are a libertarian?
Bob Esq:
that is some interesting info.
I am actually surprised Thomas went for this, Scalia [whom I know you dont like] doesnt surprise me. Roberts is just a punk and no friend of liberty. He will vote for any rights depriving law he comes across. He didnt last very long, well Bush did appoint him so maybe no surprise there.
“Any biology undergraduate could perform this.”
DNA Evidence Can Be Fabricated, Scientists Show
By ANDREW POLLACK
Published: August 17, 2009 (NY Times)
Scientists in Israel have demonstrated that it is possible to fabricate DNA evidence, undermining the credibility of what has been considered the gold standard of proof in criminal cases.
The scientists fabricated blood and saliva samples containing DNA from a person other than the donor of the blood and saliva. They also showed that if they had access to a DNA profile in a database, they could construct a sample of DNA to match that profile without obtaining any tissue from that person.
“You can just engineer a crime scene,” said Dan Frumkin, lead author of the paper, which has been published online by the journal Forensic Science International: Genetics. “Any biology undergraduate could perform this.”
Dr. Frumkin is a founder of Nucleix, a company based in Tel Aviv that has developed a test to distinguish real DNA samples from fake ones that it hopes to sell to forensics laboratories.
The planting of fabricated DNA evidence at a crime scene is only one implication of the findings. A potential invasion of personal privacy is another.
Using some of the same techniques, it may be possible to scavenge anyone’s DNA from a discarded drinking cup or cigarette butt and turn it into a saliva sample that could be submitted to a genetic testing company that measures ancestry or the risk of getting various diseases. Celebrities might have to fear “genetic paparazzi,” said Gail H. Javitt of the Genetics and Public Policy Center at Johns Hopkins University.
Tania Simoncelli, science adviser to the American Civil Liberties Union, said the findings were worrisome.
“DNA is a lot easier to plant at a crime scene than fingerprints,” she said. “We’re creating a criminal justice system that is increasingly relying on this technology.”
(cont.)
http://www.nytimes.com/2009/08/18/science/18dna.html?_r=0
Bob, Esq.
Interesting info and Link! Thanks!
The Word Press censors have begun to work on posts now.
It is hard for me to get through any comment that scares them.
Juris 1, June 4, 2013 at 3:36 pm
Dredd, are you saying that current DNA science is unreliable for identification purposes? I thought this was already well-settled in the scientific community as very reliable for identification purposes.
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I am pointing out, as I have for more than one year on this blog, what microbiologists and geneticists are saying.
What I think personally means no more or no less than what you or anyone else thinks.
The science upon which those of the anti-science party on the court (save Breyer) based this far-reaching Dred Scott v Sandford type decision is discredited.
In the sense of “oops” it is not “junk DNA” (a term used in the opinion).
Whatever you do, don’t take my word for it.
I have provided links to the revolution in science for years here on this blog.
Investigate!
98% of “human” DNA is not human.
And we know little to nothing of the microorganisms who create that DNA.
Until we do, killing people, sending them to prison, or releasing them from prison is risky and reckless.
RA – absolutely correct.
impeach scotus…their record is terrible. terrible.
Professor Turley is, apparently, under the illusion that the members of the Supreme Court have certain “values” or “principles.: Sorry, but wrong. There is a principle that the Supreme Court as a GROUP follows, and that means always siding with big business and big govnerment and against individual liberties, but that’s about it. Individually, there will play the round-robin game where Sotomeyer (thought to be a “liberal”) will sometimes be selected to take the pro-business and Scalia (thought to be a “conservative) will sometimes be selected to take the pro-individual liberties. But that is sheer illusion. The GROUP or NET result is what matters, and in that regard, the Supreme Court merely fulfills the mandates of its true masters: big business and big government.
If you’ve been following this, the thought may have occurred to you: How do the powerful big business and big government interests get the Supreme Court to follow orders? That’s simple enough. The power interests have a HOLD on every member of the Supreme Court. If they didn’t, they would never have been appointed in the first place.
So if you want to know how the Supreme Court is going to go on any particular issue, just follow the REAL principle that they operate under as a group: The SC will ALWAYS side with big business and big govnerment and against individual liberties. It’s simple when you understand the game. All the rest is round-robin schtick, misdirection, and legal word games.
…the erosion of our civil liberties and privacy continues.
Dredd, are you saying that current DNA science is unreliable for identification purposes? I thought this was already well-settled in the scientific community as very reliable for identification purposes.
some. Time
S/b sometime…
Ugh iPhones and auto correct.
All your DNA belong to USA?
Seriously, I suppose with the perpetual pre-crime National Security State, how long will it before a Federal Judge is hearing cases involving collecting DNA from newborns, because after all, one of those babies will grow up to commit some. Time, somewhere and at sometime commit some. Time of some sort or other…
Darren Smith 1, June 4, 2013 at 3:06 pm
Dredd wrote:
Balony.
At the moment we know very little about it.
I have been pointing this out on this blog for years now.
~+~
And what will happen in the future when we do have that knowlege and ability? Is the ruling today from the supremes <b<not going to matter then?
=================================
It always matters, which is the point.
That is why it should be based on the available competent science.
That is up in the air now.
We may be releasing guilty people and imprisoning innocent people based on DNA science that is invalid.
All we know now is that our science is not competent to be used until we review the revolutionary DNA discoveries of the past few years.
That DNA science could very well be pseudo-science which has always plagued us (What Is Pseudo Science?).
Dredd wrote:
Balony.
At the moment we know very little about it.
I have been pointing this out on this blog for years now.
~+~
And what will happen in the future when we do have that knowlege and ability? Is the ruling today from the supremes not going to matter then?
Anon851 says “As long as a DNA is not misused”, yep, we’ve never seen misuse of secure government data like IRS Tax records or government employment data.
To further Anon851s argument, we should take the DNA of all newborns in the United States, and all naturalized citizens. Then when they apply for drivers license or college, use the database to determine if they are citizens or not. And now with the wealth of information on genetic diseases, we could use the database to deny drivers licenses to those that might have a seizure. I’m sure in the future DNA will let us know who has a propensity to violence (deny them jobs as police officers (or encourage depending on your personal ideas)). We might even learn more about DNA and educational ability. So we use the DNA database to determine who goes to medical school (smart people that do not have a propensity to violence), and who becomes a soldier (not so smart people with a propensity to violence). Heck, we could use the DNA and for those who have a propensity to violence, just lock them up when they turn 18 (or sooner if they turn violent before becoming an adult).
So Anon851 has the beginnings of some great usage of the DNA, perhaps he can be our first DNA czar.
NOT.
There is a great movie called “Gattica” where DNA determines a lot of stuff. Are we headed there?
Justice Kennedy has a Pollyannaish view of how the police and government will maintain and use this information. Does anyone really think that the police will not, or have not, arrested people with no evidence just to get their DNA? How will a DNA database accessible to every police officer in the country be safe from Julian Assange or his successors?
“Has Kennedy never watched a TV crime show? That is basically Scalia’s opening question, in an opinion he felt strongly enough about to read from the bench—not the standard practice. “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. Then he decimates Kennedy’s discussion of booking and bail with a few obvious and unchallenged facts: It took weeks to test the DNA of Alonzo King, the arrested man who challenged Maryland’s DNA collection law, and months for the samples to come back from testing. By then, booking, arraignment, and bail were long over. “Does the Court really believe that Maryland did not know whom it was arraigning?” Scalia asks. “The truth, known to Maryland and increasingly to the reader: this search had nothing to do with establishing King’s identity.” Nor is Maryland particularly slow relative to the other states—in fact, it’s perhaps a bit faster.http://www.slate.com/articles/news_and_politics/jurisprudence/2013/06/supreme_court_and_dna_collection_maryland_v_king.html