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
Bob,
I’m probably straying into the old “rights and privileges” area again but I think it would be an interesting test.
That being said, I do take your point and agree as to the wholesale cataloging.
Blouise,
What’s the difference between leaving fingerprints or DNA at a scene of a crime? They’re both identifiers; one just more certain than the other.
And the last I checked, the verb ‘to accuse’ requires a speaker and a direct object; i.e. testimony.
What I have a problem with is the wholesale cataloging of U.S. citizens simply by virtue of being arrested.
sorry, forgot my quotes
Bob,
Saliva ain’t blood but I see what you mean … basically it’s already been decided but … that was a here and now conviction on a drunk driving charge.
DNA is a … okay, let’s see what else you may have done with no adversarial system protection for the citizen to NOT be compelled to furnish evidence against themselves or on what they are implicated in by threat of gov’t sanction.
The “nemo tenetur seipsum accusare” (no man is bound to accuse himself) premise upon which the 5th is built. The one that protects not only direct answers to questions, but anything that would furnish a link in the chain of evidence needed to prosecute.
Blouise,
Blood/DNA is non-testmonial evidence.
Starts with this case:
Schmerber v. California, 384 U.S. 757 (1966), was a decision by the United States Supreme Court, which held that a State may, over the suspect’s protest, have a physician extract blood from a person suspected of drunken driving without violating the suspect’s rights under the Fourth or Fifth Amendment to the United States Constitution
Holding
(1) Blood tests do not implicate the Fifth Amendment privilege against self-incrimination; thus, the Sixth Amendment does not require an opportunity to consult with counsel first
http://en.wikipedia.org/wiki/Schmerber_v._California
(Forget the O J blood. I want to know who ran into the air conditioner causing “Kato” Kaelin to believe he was experiencing an earthquake.)
As to the subject of this thread, I find myself, as others have mentioned, somewhat disconcerted to be in agreement with Scalia. However, as pbh pointed out to Justice H, Scalia has a solid history supporting privacy.
I have a question … can one refuse to give a DNA sample based on the 5th … possible self incrimination: “no person shall be compelled to be a witness against himself in any criminal case”?
Snark indeed.
pbh:
and as far as medical issues go, as soon as you are diagnosed, the insurance companies know.
Scalia is going senile. Does he not remember that he sided against the 4th amendment in a very aggressive fashion in Florence v. Board just two years ago? A man was arrested on the false assumption that he didn’t pay a fine and was strip searched twice. The man was made to strip naked, bend over and spread, squat and cough, lift his scrotum, all in front of law enforcement. This sort of thing, Scalia is OK with. But swabbing the cheek of a man arrested for 2nd degree assault, an actual crime, to obtain a DNA sample for identification purposes is totally unacceptable to him. Yes, Scalia is right that the government will definitely be compiling a DNA database. But does he know that there is already a massive fingerprint database? Is he afraid that the government will use this DNA sample to attempt to clone Mr. King and others like him? What exactly does he think the government will do with the DNA? Plant it at crime scenes to frame people? They could easily do that with your fingerprints. So what is his point? He’s losing it.
pbh:
you bring up a very good point, if the cops are planting DNA evidence from manufactured DNA, we already live in a totalitarian state. Horse already left the barn.
Experts in the field have nighmares about law enforcement’s use of forensic science:
(Nature).
Quote from the Smithsonian link:
(emphasis addid).
pbh51 1, June 4, 2013 at 8:37 pm
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.
=======================================
I know that it is a difficult subject to grasp.
One scientist made the statement that discovery that human “junk DNA” is not human or junk is the greatest impact on medical science in 150 years.
No wonder people don’t get it.
If you want to try to get it, here are two articles that will give you a shot at it: NY Times and Smithsonian.
I am tired of talking to a brick wall on this issue.
The Word Press censor allows video but not substantive comments on current DNA science and its impact on law.
The videos are to illustrate that … so don’t take offense … none intented to the commenters here.
Gene H. 1, June 4, 2013 at 11:56 pm
“the presence of EDTA in some of samples collected is a sufficient reason to form reasonable doubt.”
Snark. reasonable doubt of your primary school diploma.
The cops planted all this phoney evidence to nail O.J.
Amazing that this conspiracy has yet to be exposed. And yet, you believe it with no evidence whatsoever. I have a bridge I would like to sell to you, but I already know that you can’t afford it.
pbh
Gene,
I agree that the DNA was mishandled, but I am not so sure that there was not some games played by the LAPD with the DNA. Det. Mark Furman was as dirty as they get.
pbh, check the link I posted above. it describes the testimony of how how the dna was mishandled. a certain amount of blood was taken from oj but when the vial was given to the lab it was short about 25%, more than enough to put where ever it was needed. Blood from the victim was put on the sock that had no blood on it when it was found and even after it was put in the evidence bag/box/whatever. the sock also showed that the blood was put on when the sock was laying flat, not when it was worn.
Pete,
I suggest you go back and refresh yourself on that trial. Although I’m certain he did it based on the totality of facts and evidence, the presence of EDTA in some of samples collected is a sufficient reason to form reasonable doubt. The lab techs took what should have been a slam dunk and through their mishandling of the evidence gave the defense a gift that they in turn successfully leveraged into reasonable doubt with the jury. Was the evidence planted? Of course not. But it was mishandled in a very unfortunate way for the prosecution.
bettykath 1, June 4, 2013 at 10:16 pm
“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.”
Normally, I wouldn’t respond to this, but since you are responding to me, I feel it is appropriate.
Obviously, the logical leap for anyone to want to place O.J.’s DNA at a crime scene does not overwhelm you. I guess the evil cops had been driving around town for months with O.J.’s blood in a vial just waiting for the opportunity to implicate him in a double murder.
And their reason for doing this is because, they didn’t like him. And they figured that sensible people such as yourself would never see through their evil deception.
All I can say is, thank Dog that you are out there helping to protect us from our won misconceptions. Not to mention the big, bad Police.
pbh
P.S: “the cross-contamination theory”? Total B.S. aimed at High School drop outs. Lap it up.
We the People have lost control of our government at all branches. It is time to take it back.