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SCOTUS Says DNA Collection Permissible After Arrest 643

Posted by samzenpus
from the welcome-to-the-machine dept.
schwit1 writes in with news about a ruling on the legality of the police collecting your DNA after an arrest. "A sharply divided Supreme Court on Monday said police can routinely take DNA from people they arrest, equating a DNA cheek swab to other common jailhouse procedures like fingerprinting. 'Taking and analyzing a cheek swab of the arrestee DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment,' Justice Anthony Kennedy wrote for the court's five-justice majority. But the four dissenting justices said that the court was allowing a major change in police powers. 'Make no mistake about it: because of today's decision, your DNA can be taken and entered into a national database if you are ever arrested, rightly or wrongly, and for whatever reason,' conservative Justice Antonin Scalia said in a sharp dissent which he read aloud in the courtroom. Details of ruling available here.
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SCOTUS Says DNA Collection Permissible After Arrest

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  • by PeeAitchPee (712652) on Monday June 03, 2013 @11:59AM (#43896663)
    ...let's not forget that it is deep blue Maryland and Democratic Governor Martin O'Malley, widely considered to be eyeing a run at the Democratic nomination for POTUS in 2016, who took this to the Supreme Court over their own MD Court of Appeals, and who is the one shitting all over the 4th Amendment here. The MD DNA Database [maryland.gov] has been one of O'Malley's pet projects for years, and he's advocated its expansion and use for this type of thing since he was Mayor of Baltimore.
  • by Anonymous Coward on Monday June 03, 2013 @12:08PM (#43896775)

    FWIW, california has been doing this for years. [politico.com]. If you are arrested (for anything-- political protest, for example), they will collect your DNA. This information remain in the state database, whether you are convicted or not-- even if you are not even charged. I'm trying to figure out if there's a consistent procedure to get your DNA removed if you're wrongly arrested, but can't find anything from a quick google. I only see a discussion of how it should work (A judge gets to decide) not how it's worked in practice.

    FWIW, the CA public VOTED for this [ca.gov] in 2004. 62% to 38%.

  • by ShanghaiBill (739463) on Monday June 03, 2013 @12:22PM (#43896957)

    Now, like fingerprints, once charges are dropped, all such collected evidence should be destroyed.

    That is NOT what happens with fingerprints. They are kept as permanent records. In some states, you may petition the court to have them expunged after an acquittal, but very few people do that, and it certainly isn't the default.

  • by schwit1 (797399) on Monday June 03, 2013 @12:24PM (#43897007)

    Why? Scalia voted against the police scanning houses with IR devices to find growers and against drug sniffing dogs on your property.

  • Dont be stupid (Score:2, Informative)

    by Anonymous Coward on Monday June 03, 2013 @12:28PM (#43897045)

    Despite everybody thinking in a primitive left and right ONE DIMENSIONAL world, everybody knows that authoritarians existed on the "left" and the "right" if they know anything about Nazi's and Russian Communism.

    There is another dimension where people who are completely opposite on the economic scale are identical on the authoritarian scale.

    Both parties in the USA are closely related but spend billions highlighting and exaggerating their few differences... yet people are continually surprised when their candidates get in and act more like the opposition than they expected...

    Educate yourself: politicalcompass.org

    capcha: superset

  • by c0lo (1497653) on Monday June 03, 2013 @12:28PM (#43897057)

    The difference is, a finger print does not contain medically private data.

    Neither does DNA fingerprinting [wikipedia.org] - a lot different from genome sequencing [wikipedia.org]

  • by Samantha Wright (1324923) on Monday June 03, 2013 @12:35PM (#43897139) Homepage Journal

    The law on genetic discrimination by companies is extremely aggressive in the US. You can read all about it here [wikipedia.org]. Opposing it or circumventing it would be political suicide, akin to racial or sex discrimination. You forget that the kind of crap actually pulled by the police and intelligence sectors in the US remains in the iffy grey zone; the information this article is talking about isn't even (very) medically sensitive, just a sorta-unique-ish identifier, like fingerprints. Medical information is not being exchanged.

    The world is not actually quite as horrible as you're gloomily projecting.

  • Re:UK Leads here (Score:5, Informative)

    by icebike (68054) on Monday June 03, 2013 @12:42PM (#43897241)

    For once the UK leads the USA in the long, slow slide to a police state. They take them from kids a lot [bbc.co.uk]

    For once?
    The UK leads the way in the slide to Police State in almost every way, and has for a long time.

  • by Wrath0fb0b (302444) on Monday June 03, 2013 @12:44PM (#43897273)

    They can't solve a case but have DNA and a vague description, they will simply "arrest" anyone and everyone who is a close match to the description on trumped up charges that will be dropped after they get their DNA.

    Actually, the opinion [supremecourt.gov] requires the arrest to be for a serious offense. So littering or seatbelt violations are not going to cut it.

    For comparison, the Maryland law at issue here essentially limits the DNA testing to arrests for crimes of violence: murder, rape, robbery, assault. These are not victimless crimes and so are much harder to trump up -- you need to find putative victims in order to be credible.

  • by Anonymous Coward on Monday June 03, 2013 @12:45PM (#43897297)

    Then I was shocked to see Scalia was in the dissenting group.

    Why the surprise? Scalia is a textualist/originalist. If a particular method of search or seizure would have been viewed as unreasonable in 1791, then that is exactly what the Fourth Amendment prohibits.

    Scalia wrote the majority opinion in United States v. Jones holding that warrentless attachement of a GPS to track a suspect's car was a trespass, and that the information collected was an unreasonable search.

    Scalia wrote the majority opinion in Florida v. Jardines holding that police can't enter the curtilage (closely surrounding area) of a home with the intent to collect evidence (in this case, via a drug sniffing dog). Scalia called this an unreasonable search.

  • by stanlyb (1839382) on Monday June 03, 2013 @12:45PM (#43897301)
    WOW, amazing. Just checked the site. Just....amazing.
    Since 2004, about 2 million probes taken.
    Based on DNA test, about 28000 were convicted.
    Translated, about 1% positive hit.
    Money collected for this purpose: 280 million dollars.
    No comment....
  • by icebike (68054) on Monday June 03, 2013 @12:46PM (#43897313)

    Even if you petition to have them expunged they have in most cases already been sent to the feds, or at least the numerical encoding have.
    The feds will not expunge. ever.

  • by icebike (68054) on Monday June 03, 2013 @12:49PM (#43897355)

    Every place past McDonalds checks NCIC listings, and if someone has an -arrest- (not convictions, as supposedly, acquittals can be bought), they are branded as criminals for life.

    Not true. [diligentiagroup.com] (And you know it, so why troll?)

  • by Calsar (1166209) on Monday June 03, 2013 @12:54PM (#43897421) Homepage

    They aren't putting your entire genome into the database. They only collect 13 specific markers (http://en.wikipedia.org/wiki/CODIS). The possibility that one of these markers is tied to a genetic disease is possible as referenced in Wikipedia. What you can determine from the DNA doesn't appear to be any greater than the information available in a photograph. DNA reveals non visible information, but a lot more information can be gleaned from a photograph.

  • by coinreturn (617535) on Monday June 03, 2013 @12:58PM (#43897509)

    It also means a rare moment where Thomas didn't vote in lockstep with Scalia.

    For the October 2010 to June 2011 term the Justices most often agreeing in whole or part were Roberts and Alito at 96%. In second place were Sotomayor and Kagan at 94%. In third and fourth place were Scalia and Roberts, and Kennedy and Roberts at 90%. In fifth and sixth place were Roberts and Thomas, and Thomas and Alito at 89%. In seventh place was Kennedy and Alito at 88%. In eighth and ninth places were Breyer and Sotomayor, and Breyer and Kagan at 87%. In tenth, eleventh and twelfth places were Scalia and Thomas, Scalia and Alito, and Kennedy and Thomas.

    So, if voting in lockstep like Thomas and Scalia is bad at 86%, what is it when Sotomayor and Kagan vote together 94% of the time? Is that also lockstep?

    ~Loyal

    Since you quote 2nd place instead of first, your attempt to turn this into a left/right thing is obvious. Your numbers may be the case for the current term. Thomas and Scalia have way more years of history of lockstep. The fact that Thomas never says anything is what adds to this "lockstep" idea. Here is some history from wikipedia:

    Voting alignment

    On average, from 1994 to 2004, Scalia and Thomas had an 86.7% voting alignment, the highest on the Court, followed by Ginsburg and Souter (85.6%).[100] Scalia and Thomas's agreement rate peaked in 1996, at 97.7%.[100] By 2004, however, other pairs of justices were observed to be more closely aligned than Scalia and Thomas.[101]

    The conventional wisdom that Thomas's votes follow Antonin Scalia's is reflected by Linda Greenhouse's observation that Thomas voted with Scalia 91 percent of the time during October Term 2006, and with Justice John Paul Stevens the least, 36% of the time.[102] Jan Crawford Greenburg asserts that to some extent, this is true in the other direction as well, that Scalia often joins Thomas instead of Thomas joining Scalia.[103] Statistics compiled annually by Tom Goldstein of SCOTUSblog demonstrate that Greenhouse's count is methodology-specific, counting non-unanimous cases where Scalia and Thomas voted for the same litigant, regardless of whether they got there by the same reasoning.[104] Goldstein's statistics show that the two agreed in full only 74% of the time, and that the frequency of agreement between Scalia and Thomas is not as outstanding as is often implied by pieces aimed at lay audiences. For example, in that same term, Souter and Ginsburg voted together 81% of the time by the method of counting that yields a 74% agreement between Thomas and Scalia. By the metric that produces the 91% Scalia/Thomas figure, Ginsburg and Breyer agreed 90% of the time. Roberts and Alito agreed 94% of the time.[105]

    Legal correspondent Jan Crawford Greenburg wrote in her book on the Supreme Court that Thomas's forceful views moved "moderates like [Sandra Day O'Connor] further to the left",[106] but frequently attracted votes from Rehnquist and Scalia.[107] Mark Tushnet and Jeffrey Toobin both observe that Rehnquist rarely assigned important majority opinions to Thomas, because the latter's views made it difficult for him to persuade a majority of justices to join him.[108]

  • Re:GATTACA (Score:5, Informative)

    by CyberBill (526285) on Monday June 03, 2013 @12:59PM (#43897527)

    Being detained is not the same as being arrested.

  • by Rene S. Hollan (1943) on Monday June 03, 2013 @01:02PM (#43897551)

    Bullshit. To myth24601 as well. I'll address his/her point first.

    Charges rarely get "dropped". Cases simply don't get pressed. Felony arrests can be prosecuted up to five years later in many places (WA, for one), once sufficient evidence is obtained to make a case. The constitutional prohibition against being placed in double jeapardy means prosecutors only get one kick at the can, unless the same evidence can be repackged under a different charge.

    In 2010, when my ex had custody, my son was hungry. As she hardly ever fed our kids, she let me take him to dinner, and wrote a permission slip (as I did not have visitation rights that day, and insisted on one). Well, she let the poor kid out, in February, with one shoe having the sole completely flop off. I told him, either before or after dinner, I'd get him new shows. He chose after dinner. Well, after dinner, he wanted to go home to mom, and I feared she'd have police waiting to illustrate the "poor footwear" that "I" had on him. So, I took him to Payless for those shoes first.

    My son has issues. He suffers from Conduct Disorder (Oppositional Defiant Disorder in his younger days, that psychologists and psychiatrists have not been able to stem). In order for him to not run into traffic, I had to carry him into the store, all the while him screaming "He's choking me! He's killing me! Help, he's kidnapping me!" I handed a worker one shoe, asked, for a matching pair, got them paid, and took him home to his mother. Unbeknownst to me, on the way, he brusied himself with his seatbelt buckle.

    He alleged I struck him, she called police, they interviewed store staff ("He was choking and trying to kill the child he was kidnapping"), and there was plenty of probable cause to arrest me for felony assault of a minor. I spent four days in jail before being able to post bail. Getting to one's own money behind bars is surprisingly difficult: banks won't release it to attorneys without a notarized power of attorney, and while your lawyer can visit you in lockup, a notary might be made to wait weeks. Lawyers are generally not permitted for front bail monies, because the offer can be used as a incentive to force an attorney-client relationship under duress.

    Well, the case against me fell apart: he refused to testify, and his mental illness came to light.

    Were the charges dropped?

    No.

    I got custody of my kids 18 months later, but to remove the uncertainty of a possible felony prosecution over the next 3-1/2 years, I had to get the original charges disposed. Despite not prosecuting me, the DA refused to drop the charges unless I pled to "something". I chose disorderly conduct (as someone might have thought I was actually kidnapping my son, and assaulted me: in WA, acting in a manner that might invite assault is disorderly conduct), and paid a $1200 fine. The original charges were disposed.

    All this is public information. I could not hire a nanny for my son through nannies4hire.com because of my arrest record. But, and this addresses the AC: I had no trouble getting a new job some years later. Decent employers research things like this.

  • by PeeAitchPee (712652) on Monday June 03, 2013 @01:14PM (#43897695)
    You are wrong. Not only did Scalia vote against this, he authored a scathing dissent of the decision -- while Bryer, one of the Court's liberals, voted for it along with the Court's conservative Justices. And it's absolutely beyond question that Martin O'Malley, a diehard liberal who supports issues such as granting in-state tuition rates for illegal immigrants and denying law-abiding Marylanders the right to carry concealed firearms (another MD case soon bound for the Supreme Court), has advanced and expanded this database as part of his agenda for over a decade.
  • by the eric conspiracy (20178) on Monday June 03, 2013 @01:25PM (#43897815)

    Sorry but conflating Marxism to American liberalism is complete baloney.

    The roots of liberalism are (from the Wikipedia article on the same topic) in the Enlightenment.

    "Liberalism first became a distinct political movement during the Age of Enlightenment, when it became popular among philosophers and economists in the Western world. Liberalism rejected the notions, common at the time, of hereditary privilege, state religion, absolute monarchy, and the Divine Right of Kings. The 17th century philosopher John Locke is often credited with founding liberalism as a distinct philosophical tradition. Locke argued that each man has a natural right to life, liberty and property and according to the social contract, governments must not violate these rights. Liberals opposed traditional conservatism and sought to replace absolutism in government with democracy and/or republicanism and the rule of law.

    The revolutionaries of the American Revolution, segments of the French Revolution, and other liberal revolutionaries from that time used liberal philosophy to justify the armed overthrow of what they saw as tyrannical rule. The nineteenth century saw liberal governments established in nations across Europe, Spanish America, and North America. In this period, the dominant ideological opponent of liberalism was classical conservatism.

    Later 20th century liberalism evolved into social liberalism where social justice and a mixed economy are needed to limit the gap between the rich and the poor. The trust busting of the early 20th century and the formation of labor unions are typical modern liberal activities.

    Marxism is based on the idea of complete collectivism, no private ownership of capital, and no right of property, which are very different from any form of liberalism.

  • by whoever57 (658626) on Monday June 03, 2013 @01:32PM (#43897885) Journal

    Neither does DNA fingerprinting - a lot different from genome sequencing

    But once the police have a sample of your DNA, what's to stop them doing the sequencing? Only cost and time and those are reducing dramatically as the technology progresses.

  • by tbannist (230135) on Monday June 03, 2013 @01:53PM (#43898103)

    He was refering to the final line "So, if voting in lockstep like Thomas and Scalia is bad at 86%, what is it when Sotomayor and Kagan vote together 94% of the time? Is that also lockstep?".

    The point was that the choice of Sotomayor and Kagan over Roberts and Alito who voted together 96% of the time was a blantant attempt to make to turn this into a right-left issue.

  • Re:GATTACA (Score:4, Informative)

    by ImprovOmega (744717) on Monday June 03, 2013 @02:32PM (#43898491)

    Laws vary across jurisdictions, but detention is usually a safety first kind of thing designed to be temporary while the officers defuse a situation and assess whether there is cause to charge you with something or if you might reasonably be a suspect in whatever they detained you for in the first place, or possibly even to take your statement if you were a witness.

    Being detained does not (generally) allow the officer to transport you against your will, doesn't go on your record, doesn't require you to be charged with anything and doesn't last very long (exact amount of time depends on jurisdiction).

    Now, if an officer is detaining you and you leave without him telling you that you are free to go, then they can *easily* arrest you for disobeying a lawful order (or similar statute, again depending on jurisdiction) so don't be stupid if you are being detained, and make sure that you are told that you are free to go before making any move to leave.

  • by tompaulco (629533) on Monday June 03, 2013 @02:34PM (#43898529) Homepage Journal
    How long before school boards decide to start swabbing all children "for their own safety"?
    Last week, wasn't it? Oh, no wait, that was scanning irises.

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