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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 Anonymous Coward on Monday June 03, 2013 @10:51AM (#43896501)

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

    • by AuMatar (183847) on Monday June 03, 2013 @10:56AM (#43896591)

      Interesting breakdown. Scalia joined 3 of the 4 liberals (Ginsberg, Sotomayer, and Kagan. Breyer broke with the liberals and voted in favor of the opinion. It also means a rare moment where Thomas didn't vote in lockstep with Scalia.

      • Interesting breakdown. Scalia joined 3 of the 4 liberals (Ginsberg, Sotomayer, and Kagan. Breyer broke with the liberals and voted in favor of the opinion. It also means a rare moment where Thomas didn't vote in lockstep with Scalia.

        I'm more surprised that the Scalito brothers didn't vote together.

      • by LoyalOpposition (168041) on Monday June 03, 2013 @11:46AM (#43897317)

        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
         

        • by coinreturn (617535) on Monday June 03, 2013 @11:58AM (#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]

          • by bws111 (1216812)

            Do you know how to read? The first sentence you quoted is 'first place'. The second sentence is 'second place'. How, exactly, is that 'quoting 2nd place instead of first'?

            • by tbannist (230135) on Monday June 03, 2013 @12:53PM (#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.

      • by Jane Q. Public (1010737) on Monday June 03, 2013 @01:39PM (#43898579)

        "Interesting breakdown. Scalia joined 3 of the 4 liberals (Ginsberg, Sotomayer, and Kagan. Breyer broke with the liberals and voted in favor of the opinion. It also means a rare moment where Thomas didn't vote in lockstep with Scalia."

        What amazes me is that the majority only considered whether the physical search is "intrusive", but not whether the results (being in a database) would be intrusive. As such, they left out at least half of the real 4th Amendment issue, which is great opportunity for this to be re-visited later.

        If there were ever a SCOTUS decision that deserved to be reversed, this is definitely one of them.

        There is no doubt that the Government has "an interest" in collecting the DNA for identification. At the same time, the potential for abuse is ENORMOUS. Much higher than with just about anything else. And not just abuse, but mistakes of epic proportions.

        This was a BAD DECISION. Period. One of the giant elephants in the room of the Supreme Court's recent history of bad decisions.

    • by Hatta (162192)

      Blind squirrel, broken clock, pick your cliche.

    • by schwit1 (797399) on Monday June 03, 2013 @11:24AM (#43897007)

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

    • by Anonymous Coward on Monday June 03, 2013 @11:45AM (#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 h4rr4r (612664) on Monday June 03, 2013 @10:53AM (#43896525)

    I don't see the difference between this and finger printing. If you are going to do either and the person is not found guilty that stuff should all be tossed out.

    • by Zeromous (668365) on Monday June 03, 2013 @10:57AM (#43896611) Homepage

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

      • by h4rr4r (612664)

        I would think a strip search might show much of that. Heck, to survive a few days in jail I would have to divulge a bunch just to get my meds.

        I would hope they are not allowed to share that data with private companies. I am sure insurers are now trying to figure out how to get it.

        • by Zeromous (668365)

          It's what is visually apparent to a layman, but to be able to run computer simulation on a perps genome seems a bit far.

          • by h4rr4r (612664)

            My medical condition is not visually apparent, but once you see my list of medicine you would know what it was

      • by Samantha Wright (1324923) on Monday June 03, 2013 @11:12AM (#43896851) Homepage Journal
        Unless something's changed in the past year, forensics does not retain medically-sensitive genetic information. They pick up on random, fast-changing mutations called SNPs which are specifically chosen so that they don't reveal medical information. There was a kerfuffle when it was discovered that one of them might be linked to schizophrenia. The data retention policies are stupidly thuggish, like every other component of US law enforcement, but your medical insurance is not in danger.
        • by bill_mcgonigle (4333) * on Monday June 03, 2013 @11:56AM (#43897467) Homepage Journal

          A great number of genetically-linked diseases are expected to be measurable in SNP's. Many haven't yet been identified. It's nearly a given that some of the currently collected DNA SNP's will be linked to diseases in the future.

          Somehow I doubt HIPAA PHI rules violation consequences will be imposed on Barney Fife.

          BTW, this argument about fingerprinting is being made in reverse on this thread - the DNA situation highlights why the fingerprints decision was wrong, however long ago that was made. Let's try to be logically consistent here.

          This argument is of course, only in theory. In reality, the masters will do whatever they want to their slaves.

      • Re: (Score:3, Interesting)

        by twimmel (412376)

        For identification purposes law enforcement labs only analyze at a dozen or so short segments of the DNA. That's why they can do the test so quickly. For example it was technically possible that Bin Laden could have been positively id'd within hours of his capture. Short tandem repeats give very little data, and not enough to characterizes anyone's medical condition. As the ruling says, "Those loci came from noncoding DNA parts that do not reveal an arrestee’s genetic traits and are unlikely to re

      • by c0lo (1497653) on Monday June 03, 2013 @11:28AM (#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 Wrath0fb0b (302444) on Monday June 03, 2013 @11:29AM (#43897069)

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

        Neither does CODIS, which is a loci of STRs [wikipedia.org] that are not medically relevant. It might be different if the police were actually sequencing the entire genome, but they are specifically looking for irrelevant areas because those necessary have the most variance between people and hence the most specificity.

        To put it another way, heritable traits are much less likely to be different between potential matches and so are a bad choice for genetic fingerprinting.

      • Re: (Score:3, Informative)

        by Calsar (1166209)

        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.

    • I don't see the difference between this and finger printing. If you are going to do either and the person is not found guilty that stuff should all be tossed out.

      Yeah, but is it? I don't think it is, though I haven't looked it up.

      • by h4rr4r (612664)

        I am sure it is not, but that does not mean it should be that way.

        That is a separate problem all together.

    • by cayenne8 (626475)

      I don't see the difference between this and finger printing. If you are going to do either and the person is not found guilty that stuff should all be tossed out.

      They don't throw out fingerprints...why do you think they'd throw out DNA?

  • Should be noted (Score:5, Insightful)

    by Sparticus789 (2625955) on Monday June 03, 2013 @10:53AM (#43896537) Journal

    "Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Breyer, and Alito, JJ., joined. Scalia, J., filed a dissenting opinion, in which Ginsburg, Sotomayor, and Kagan, JJ., joined. "

    On no other issue will Scalia, Ginsburg, Sotomayor, and Kagan all agree with each other.

    • Re:Should be noted (Score:5, Interesting)

      by njnnja (2833511) on Monday June 03, 2013 @11:58AM (#43897511)

      Digging through the Supreme Court Database [wustl.edu], this happened exactly once before (Scalia, Kagan, Sotomayor, and Ginsberg all agreeing in dissent). It happened in Williams v. Illinois [scotusblog.com], which was interestingly also a DNA testing case. The question at the time was "Whether a state rule of evidence allowing an expert witness to testify about the results of DNA testing performed by non-testifying analysts, where the defendant has no opportunity to confront the actual analysts, violates the Confrontation Clause." The majority held that it did not violate the confrontation clause, with these four justices in dissent.

  • New opportunity (Score:4, Insightful)

    by stewsters (1406737) on Monday June 03, 2013 @10:53AM (#43896539)
    Can they then sell these public records to a middle man who can extract the relative information and sell it to insurance companies? Because I may have a business proposition for some biology undergrads.
  • UK Leads here (Score:5, Interesting)

    by Alain Williams (2972) <addw@phcomp.co.uk> on Monday June 03, 2013 @10:54AM (#43896549) Homepage

    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]

    • by h4rr4r (612664)

      Kids who are suspects in a crime. Not everyone under 18 is some angel.

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

      by icebike (68054) on Monday June 03, 2013 @11:42AM (#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 JDG1980 (2438906) on Monday June 03, 2013 @10:59AM (#43896649)

    Scalia is mostly just a conservative hack these days, but sometimes he remembers that he used to have actual principles. Good for him – on this issue, he's absolutely right on the merits.

    The majority decision is terrible because it means that if the authorities want your DNA for whatever reason, all they have to do is come up with some excuse to arrest you. They don't have to make the arrest stick, just get you into the system.

    • by moeinvt (851793)

      What decisions make you think Scalia is a "conservative hack"?

      I was disappointed in him on Raich v. Gonzales (medical marijuana), but otherwise, he's been pretty good on issues of civil liberties. e.g. Kelo v. New London, Citizens United v. FEC, MacDonald v. Chicago, Florida v. Jardines, etc.

      • by osgeek (239988)

        Well, by "conservative hack", JDG1980 means that Scalia decides issues based upon the agreed-upon principles and rules laid out in the Constitution rather than fabricating new legislation willy nilly to meet the demands of progressivism like Sotamayor, Ginsburg, and Kagan.

  • by PeeAitchPee (712652) on Monday June 03, 2013 @10:59AM (#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.
  • Facebookification (Score:5, Insightful)

    by Jah-Wren Ryel (80510) on Monday June 03, 2013 @11:01AM (#43896677)

    The problem here isn't so much with the collection of DNA, but the retention. That seems to be a common theme here at the start of the 21st century - data collected for one purpose is then reused for other purposes.

    I think it is reasonable for the police to check if someone they've arrested is a convicted felon. But once they've looked you up in their database of convicts, the collected data should be destroyed, be it DNA, fingerprints or even a mugshot. If you are subsequently convicted, they can go and re-collect the data for the purposes of making a permanent entry into the database of convicts.

    • Not really. It's perfectly reasonable for them to match your prints against unknown prints found at other crime scenes. I suppose I could see waiting until you're 'convicted' before checking you against unsolved crimes, but realistically I'm pretty sure it's done upon arrest and collection of the prints (and now DNA).
    • by StormReaver (59959) on Monday June 03, 2013 @11:37AM (#43897175)

      I disagree with you on almost every point (except for your statement of the common theme).

      The bar for becoming a convicted felon has been rapidly lowering over the years. The more police powers we grant, the less Free we become. This decision has just provided an incentive for our lawmakers to make many more of us convicted felons for ever increasingly flimsy "offenses."

    • Re:Facebookification (Score:5, Interesting)

      by ebno-10db (1459097) on Monday June 03, 2013 @11:51AM (#43897385)

      The problem here isn't so much with the collection of DNA, but the retention.

      Agreed, but note how that isn't addressed by the court, the press or the laws. As noted by posters above, even fingerprints are not usually deleted even if charges are dropped because a school bus full on nuns says "we saw the whole thing and he didn't do it". The best approach would be not only to delete the info for anyone who has charges dropped or is acquitted, but to change who analyzes the DNA. Because there have been cases of incompetent or corrupt police crime labs ("we know he's guilty so just say it matches"), the Innocence Project has suggested that DNA matching be done by N independent and accredited labs, with which lab a sample is sent to chosen at random. The samples should also be submitted and tracked in such a way that it doesn't indicate who or where the sample is from. Lastly, the labs should undergo random checks by having already known samples sent to them in exactly the same way as "real" samples are.

  • If search warrants are handed out like toilet paper and your DNA isn't protected, what's left?

  • by Anonymous Coward on Monday June 03, 2013 @11:08AM (#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 sargon666777 (555498) on Monday June 03, 2013 @11:18AM (#43896917) Homepage
    I disagree with the likening of DNA to having a mug shot taken or a fingerprint.. Simply because DNA can be used for purposes well beyond what you can use for a mug shot or a fingerprint.. Consider for a moment this currently fictional example... We have a nationalized health care system. Using the same DNA collected we tax an individual based on the likeliness of that individual to contract a certain condition (e.g. diabetes).. -or- We use that same DNA to establish life insurance rates along the same logic.. The problem here is it allows a very large amount of information to be garnered about a persons potential medical conditions without their consent.
    • medical? (Score:5, Interesting)

      by iggymanz (596061) on Monday June 03, 2013 @11:42AM (#43897253)

      think more broadly. studies may show a person with certain sequences might be more likely to commit certain crimes. We need to keep extra surveillance on such people for safety's sake.

      And maybe you shouldn't reproduce, citizen, given your suspicious DNA sequences.

  • Misunderstanding (Score:5, Interesting)

    by Antony T Curtis (89990) on Monday June 03, 2013 @11:49AM (#43897373) Homepage Journal

    This is only potentially bad because of the way how people have now completely misunderstood the purpose of DNA fingerprinting.

    DNA Fingerprinting was originally conceived to exclude suspects and was never intended to prove that a suspect was present.
    (let that sink in for a bit)

    (a bit longer)

    This is why DNA fingerprinting is usually combined with probabilities with regard to how many other people share the similar DNA fingerprint match.
    A DNA fingerprint match should not be considered proof of anyone's guilt. It only means that the suspect cannot be excluded.

    However, in America, it seems that DNA fingerprint match is seen as proof of guilt instead of how it should be used where a fingerprint mismatch is proof of innocence. Far too often, I have heard of cases where the prosecution excludes DNA fingerprint evidence because it doesn't show a match ... which is an abuse and misrepresentation of the technology.

    *sigh*

    (I'm sure that many people will read what I had written and still completely fail to understand the difference)

  • by conspirator23 (207097) on Monday June 03, 2013 @12:34PM (#43897907)

    I'm really amused by all the ideological civil libertarians who are shocked (SHOCKED I tell you!) at finding common cause with Scalia on this issue. The general assumption seems to be that Scalia "is finally right for once." Here's an alternative explanation: Scalia hasn't changed at all. It's the ideologically motivated civil libertarians who are off their rockers here.

    If you'll tie your jerking knee down for a minute and whip up a Top 20 list of the most pernicious and chilling abuses of government authority, I suspect you'll have a hard time finding a spot for this line item. The risk/benefit equation on this is different. Managing this data in an appropriate and accountable fashion is officially Not Rocket Science. You may not trust the government to behave in a reasonable and appropriate manner, but there's all kinds of stuff you accept silently right now which is already egregious. Letting that stuff slide (Guantanomo, CIA-run drone strikes against civilian targets, National Security Letters, good old fashioned "driving while black", take your pick) while getting your panties in a bunch over soemthing with tangible benefits to a civil society is not much more than masturbatory paranoia.

    Or maybe I should put it this way: When extremists of different factions agree, it doesn't make them less extreme.

Never tell people how to do things. Tell them WHAT to do and they will surprise you with their ingenuity. -- Gen. George S. Patton, Jr.

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