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
We need to acquire the dna of each Justice and post the profile on line so that the world according to Garp knows their private attributes. Maybe some unclaimed children will show up.
I have to agree that DNA is simply another form of ID for suspects. Right now they have a huge data base of fingerprints that are used to ID criminals in what is called Secure Comm which I have not heard any cry about, other than crooks. A DNA swab is so minimally invasive such as fingreprinting I have a hard time being upset at this ruling. So far nobody has mentioned why fingerprinting is OK and a swab is not. In fact., the cops can give you a something to drink and they will take a sample off of that too. Should that be banned? Should the cops not be allowed to take fingerprints and put them in a data base to match them to aliases and other crimes?
DNA has sort of a magic ring to it in the eyes and ears of juries and the ayes usually have it. There was a case out in Missouri, affirmed on appeal. Entirely circumstantial evidence. No evidence connecting defendant, live in boyfriend to the crime scene(s) where she was killed and where the body was found. She was drunk and had left the house in a huff. 1982. Thirty years later the state patrol runs a DNA test on her fingernail clippings and finds live in boyfriends DNA under or on one nail. Convicted. The Mizzou Supreme Court threw out their circumstantial evidence on appeal rule previously and stuck to their Unreconstructed local version of review of a circumstantial evidence case which is now, I know it when I see it.
Too many of the Justice of the US Supreme Court are from New York. Give us a Hugo Black from Alabama, someone who has tried court jury trials as a lawyer for defendants. Correct me if I am wrong but not one Justice has ever defended a person in a criminal trial. Most have never done a jury trial as a lawyer. They are all Harvard or Yale and mostly come out of the DC Court of Appeals. At oral arguments one sure hears a lot of turdy turd and a turd accents.
“INJUSTICE ANYWHERE IS A THREAT TO JUSTICE EVERYWHERE.”
Letter from the Birmingham Jail, Martin Luther King, Jr., 4-16-1963
oops. posted too quickly.
I don’t know if OJ did it or not, but if I were a juror and it was shown that the lab contaminated DNA evidence and someone planted DNA evidence and possibly other evidence, I’d find reasonable doubt and vote not guilty.
OJ DNA evidence
http://phobos.ramapo.edu/~jweiss/laws131/unit3/simpson.htm
pbh, ” instantaneous urge to convict O.J. without knowing for sure that he was ever on the scene or didn’t have a solid alibi. Nevermind a jury that would refuse to convict him no matter what evidence you showed them.”
OJ was acquitted b/c it was shown that the cops planted evidence. the dna evidence they used was bogus.
RWL 1, June 4, 2013 at 9:53 pm
“I didn’t say that all police departments or officers are corrupt.”
Which means that “stuff happens” and we have to keep an eye on it.
DNA notwithstanding.
pbh
P Smith 1, June 4, 2013 at 9:26 pm
“It wouldn’t surprise me if taking DNA by force extends to anyone who enters police-state stations”
I think you would be better off thinking about the corporate state rather than the “police” state.
Your DNA will be made available to Wal-Mart and Goldman Sachs just as soon as they can figure out a way to use it. Which is what they have been working on since 1963.
The only people who might protect you from this rampage will be the police you seem to fear and the government you are wise enough to elect.
pbh
RWL 1, June 4, 2013 at 9:09 pm
“I guess you never heard of the story behind Rubin ‘the hurricane’ Carter”
One thing I can tell you about “Hurricane”, he never led with his chin.
“If police corruption could do this, then I am sure that they can plant DNA on a crime scene.”
Your premise is that the police are ENTIRELY corrupt. And that they can get away with falsfied evidence EVERY time.
Given that premise, I submit that DNA evidence is of no consequence.
pbh
Pbh,
Lol @ comments about ‘the hurricane’.
I didn’t say that all police departments or officers are corrupt. Most of them are underpaid and overworked (except for the chief). However, this ruling, by the Courts, will have to monitored closely by private citizens as to how law enforcement will utilize ‘DNA evidence.’
It wouldn’t surprise me if taking DNA by force extends to anyone who enters police-state stations, such as those paying fines or charged for jaywalking. It will be easy to be falsely accused and have one’s DNA put on file, then near impossible to have it removed. Once governments and businesses have your private information, they won’t get rid of it, even if they are legally required to.
And it also wouldn’t surprise me if a DNA database were misused. Credit ratings are misused for things unrelated to credit (e.g. car insurance rates), It’s not farfetched to suggest that HMOs and others would like to get their hands on a DNA database for illicit purposes.
G’night then …
Bob, Esq. 1, June 4, 2013 at 6:07 pm
“DNA Evidence Can Be Fabricated, Scientists Show”
I will take this under advisement.
It seems to me, however, that this line of argument leaves out the chain of custody. It is not so easy to plant DNA when you don’t have a copy of the original. And even if you do, you would have to have a reason to do that, sort of like the instantaneous urge to convict O.J. without knowing for sure that he was ever on the scene or didn’t have a solid alibi. Nevermind a jury that would refuse to convict him no matter what evidence you showed them.
Moreover, the planted DNA would need to be obtained from the scene and transported without loss of custody. etc., etc.
I am trying to imagine the police force that is trained in the techniques of successfully planting false DNA, protecting the chain of custody through multiple hands, and succeeding in conviction with reasonable enough frequency so that its methods would not be called into question. What you are suggesting would require such a massive subversion of the police sector that we would all be well on the way to Perdition before false DNA would be necessary.
pbh
Pbh,
I guess you never heard of the story behind Rubin ‘the hurricane’ Carter: black male, boxing champion, wrongfully arrested, wrongfully convicted, lost numerous appeals due to the police chiefs connections to judges and staff at the DA’s office, and finally freed (after serving more than 15 years) after the case was moved away from the area in which he was tried.
If police corruption could do this, then I am sure that they can plant DNA on a crime scene.
Want another case of major police/judicial misconduct? How about the Scottsboro Boys case?
Justice Holmes 1, June 4, 2013 at 2:34 pm
“I hate to say it but I agree with Scalia. This proves there are no liberals or progressives on the court.”
Your second statement does not flow from the first. Scalia has a history of support for privacy. He’s sort of Neanderthal about that.
Unfortunately, he can’t stop the DNA from rising. Neither could the Neanderthals.
pbh
Dredd 1, June 4, 2013 at 2:04 pm
“Since we know very little about the microbial realm (includes viruses) that make up the 98-99% of the DNA we call “human”, I argue that it is reckless to base national law on that science AT THIS TIME.”
Well, you are pretty much putting the knife to your own argument.
Moreover, it is not good enough to say that science does not know with 100% certainty that DNA evidence is irrefutable. DNA evidence has been used dozens of times to free the convicted. And the law requires only a reasonable doubt standard.
All that said, I think the science is going to overpower all of these objections in no time.
pbh
Bob Esq,
There is such a thing as designer DNA…… But when Scalia and I are on the same page…. I wonder what day of the week it is…. Who the president is and what time it is…. And where I’m at right now….. This has to be one of Obamas DOJs biggest blunders to ever persue….. But banksters can walk away Scott free….
The behind the scenes argument about the decision:
http://en.wikipedia.org/wiki/Chimera_(genetics)
Ode to the Supreme Five:
Bron–yes I lean in the Libertarian direction, but I believe that in a truly effective society there are laws in place that provide a level playing field.
Bob, Esq.–very interesting news. Thanks for posting.