California DNA Collection Law Struck Down 192
wiedzmin writes with an article in Wired about DNA collection from criminals in California. From the article: "A California appeals court is striking down a voter-approved measure requiring every adult arrested on a felony charge to submit a DNA sample. The First District Court of Appeal in San Francisco said Proposition 69 amounted to unconstitutional, warrantless searches of arrestees. More than 1.6 million samples have been taken following the law's 2009 implementation. Only about a half of those arrested in California are convicted."
Note that the State can still appeal the ruling; according to the article, the Attorney General's office has made no comment as to whether they will do so.
Should have been obvious all along (Score:5, Insightful)
The appeals court made the correct ruling. Now they just need to order all of the samples destroyed.
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Police actually don't need a warrant to search someone upon arrest. Nor do you have the right to refuse a search upon arrest.
You can be searched for weapons, drugs, stolen property, etc without a warrant whenever the arrest takes place without a warrant.
It law doesn't extend to bodily fluids, but the cops wanted to push the envelope, and this law allowed them to do so, until now.
Once convicted and sentenced to any correctional institution, all bets are off. The rules of the DOC are incorporated in every s
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At least that is the way it is supposed to be. It comes down to how slimy the prosecution is and/or how good your attorney is.
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True, you are usually told immediately what you are being charged with, and then you are cuffed, and searched, and if they find illegal substances in your pockets MORE charges are added on.
And that's just the preliminary search. After the ride in the squad car it happens all over again.
I'm sure there are lesser standards for simple infractions (drunk and disorderly types of stuff) as opposed to crimes like assault, burglary, etc. But if they take you in, they have to search you.
Otis doesn't get to wander
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It is my understanding that the search of your person is basically a requirement for an officers safety and no court would undo that. An officer must ask to search your home, or your car and you can refuse them consent. They can and sometimes do proceed without consent, which will often make any evidence they find inadmissible unless they can prove they had due cause for the search (for instance you are drunk driving and they search your vehicle for open containers, or they smell it on your breath through t
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Exactly right.
The constitution does not protect you from search and seizure, it protects you from UNREASONABLE search and seizure.
Unreasonable is a pretty slippery word. Customs can seize your cell phone when you enter the US without even leveling a charge or having any real suspicion. Simply because courts have found it is "reasonable" that the United States may defend its borders and control the flow of goods into the country.
Re:Should have been obvious all along (Score:4, Insightful)
Exactly wrong. Unreasonable isn't slippery at all, at least, not in the case of search. It's defined right in the 4th amendment, quite specifically. Go read it. [usconstitution.net]
Also, the courts have no authority to abrogate the meaning of the 4th amendment. Article three awards the power to judge guilty or not; it does not award the power to alter. That is limited to article five. This is simply the government acting out of the bounds of its authorization, exerting, in this case, power that was explicitly forbidden to it.
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Actually, police DO need a warrant to search a US citizen's person, home, papers or effects. The 4th amendment is quite specific:
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What I'm telling you is that a search without a warrant isn't an authorized power of the government, and when it is performed, the government is acting outside the bounds of the agreement that says it is allowed to exist. I'm not saying it doesn't happen -- I'm saying it's wrong when it happens.
No. In fact, I pointed it out. 2nd para after the "l
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Far from "obvious" given our recent rash of Paid Rulings.
No, I will not wear tinfoil.
Just that for the moment it's too early for this one. Give it 2 years.
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Re:Should have been obvious all along (Score:5, Insightful)
The problem is Mr. and Mrs. John Q. Voter can't tell the difference between "accused" and "convicted".
Many of them don't care about the difference between accused and convicted.
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Well, at least the cop wasn't allegedly beating up the 15yr old.
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Heck, many of them struggle with the difference between "accused" and "arrested"...
Re:Should have been obvious all along (Score:4, Interesting)
At least in my state, fingerprints are collected upon arrest, but are supposed to be destroyed if there is no conviction.
Re: How does this differ from fingerprints (Score:2)
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Except that once you've been arrested they can run your DNA profile against all unsolved cases. Hooray for false positives!
And they dont for fingerprints?? (Which have a much higher false-positive rate)
-Tm
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You answered your own question:
but are supposed to be destroyed if there is no conviction.
That is not the case for this system, the DNA is kept on file for at least 2 years, can be kept longer if the police request it, and there are no penalties if the lab 'accidentally' forgets to remove it from the DB after the 2 years are up.
Re:Should have been obvious all along (Score:4, Interesting)
Because your genes can tell a LOT more about you than just your fingerprints. DNA is more than identification.
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In California, we get fingerprinted at the DMV (granted, it's only a thumbprint thought).
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Good enough, that's the fingerprint you give to get a gun, too.
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(Actually, the prescribed method is cheek swabs)
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How does this differ from collecting fingerprints at arrest?
well DNA not only identifies you, it identifies your siblings and your entire family?
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Which, if your family is native to the US, is already a matter of public record, so what's your point?
Furthermore, I assume that they're actually cataloging the DNA markers which allow statistically unique identification, not sequencing the entire genome. Those markers have been chosen so you are unique from your parents and siblings.
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Arrest != Conviction
No but you usually have to at least be under suspicion to get arrested. Keep in mind this was a ballot initiative - the people of California voted this on themselves. Meanwhile the people in Texas tried to curb TSA's subjecting everyone for suspicion of trying to take a plane ride and they were slapped down by the feds.
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No but you usually have to at least be under suspicion to get arrested.
In theory yes. In reality, you will find this is abused more than you would like to believe.
Meanwhile the people in Texas tried to curb TSA's subjecting everyone for suspicion of trying to take a plane ride and they were slapped down by the feds.
That is a big part of the problem.
Keep in mind this was a ballot initiative - the people of California voted this on themselves.
That is the rest of the problem.
Re:Should have been obvious all along (Score:5, Insightful)
Arrest != Conviction
Law enforcement and legislators haven't been able to see the distinction for a long time. It's a wonder we still have courts.
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Sheesh. Next thing you'll be calling for some judicial activism, Citizen.
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The legislature has nothing to do with it - this is over a ballot initiative. Basically the citizens of California ordered their police to do this to them upon arrest.
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One of these days, I'm going to start a referendum to prevent any further referendums.
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Now they just need to order all of the samples destroyed.
They can not order them destroyed because they are likely out of the hands of the state at this point and in the fed's hands. A state court can not order the feds to do squat. But any person ever charged with a crime based on evidence gained from this DNA database has a 4A claim to bounce the evidence (exclusionary rule)
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Now they just need to order all of the samples destroyed.
They can not order them destroyed because they are likely out of the hands of the state at this point and in the fed's hands. A state court can not order the feds to do squat. But any person ever charged with a crime based on evidence gained from this DNA database has a 4A claim to bounce the evidence (exclusionary rule)
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The appeals court made the correct ruling
Don't worry, the Supreme Court will fix all that.
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While that statement is true, it has NOTHING to do with the discussion. The correct analysis centers on this:
Probable Cause to Arrest != Probable Cause to Take DNA
That's the proper issue.
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Well, it does, insofar as TFS asserts that this has to do with DNA collection from "criminals" rather than from arrested suspects.
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I don't agree that it's obvious, and I hope they appeal the ruling.
I had to sign up for selective service (draft) and I didn't want to. If there were DNA & fingerprint records for more people, more criminals would be caught.
Re:Should have been obvious all along (Score:4, Informative)
If the police arrest you, they still need a warrant to search your home.
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This had nothing to do with homes or cars. It had to do with mouth swabs.
Clearly if you are arrested you are going to be searched (cloths, body and cavities) regardless of whether there is a warrant or not.
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I don't think they can check your body cavities if you were merely arrested. I was under the impression that you had to be convicted, but IANAL.
It's one thing to check all items on your person. That sort of stuff is kinda "plain view"-ish.
However, collecting and permanently storing your DNA in a database is an invasive search that should require a warrant if you were merely arrested.
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I assure you you will get a cavity search upon being sent to jail after an arrest.
How about your finger prints, Do you think they need a warrant for those too?
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I don't know about that. Judging from this web site [aele.org] which purports to be "law enforcement training" written by Emory A. Plitt, Jr, Associate Judge of the Circuit Court in Bel Air, Maryland, you're wrong. Now, unless you're a lawyer or a judge with credentials equal to or greater than the Honorable Emory A. Plitt, Jr. then I think you lose this one.
Can an officer search a person at the time of arrest?
The Fourth Amendment allows a number of exemptions from the general rule that a warrant is needed to search
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Sorry, but every thing you posted agrees with my statements. Even the parts you highlighted about general searching. So it looks like YOU lose this one.
As for strip searching, it happens every single day in every single county lockup. You get your jump suit and you change into it under the watchful eye of a deputy. Its not random, its policy. It might be delayed if your alledged crime is such that you will make bail.
I think the good professor needs to get out in the real world.
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You allege that you can body cavity search someone for merely being arrested.
7) The mere fact of an arrest does not allow a strip search or body cavity search just because the person was arrested;
Looks to be pretty much the exact opposite of what you claim.
Also, I fail to see how a DNA search satisfies (1) to find and remove any objects or property which may be used as a weapon against the officer or others and (2) to seize any contraband or evidence of a crime which could be destroyed, lost, stolen, etc. i
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You allege that you can body cavity search someone for merely being arrested.
7) The mere fact of an arrest does not allow a strip search or body cavity search just because the person was arrested;
Tell you what... You and the good professor go out and take a swing at a cop someplace and see who comes out being right. Being booked into county jail you will be strip searched. Why? because they can't have some gang banger's homeboys getting tossed in jail for spitting on a cop and thereby smuggling in weapons.
Here's your jump suit. Step over there and strip down and put it on. Deputy Jones will watch you. What? A legal degree? Tell it to the judge.
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Remember, it's not just the arrested person's privacy that you're violating, it's their entire family.
This isn't exactly true, and is interesting to note; forensic DNA samples just cut up the DNA an measure it's length / terminal sequence. It does not reveal whole genes and thus is unlikely to reveal any genetic disorders. However, after reviewing the law, cheek swabs are to be kept indefinitely, which means the state could potentially get a full sequence at a later data if they were to change the protocol on how sequencing was done.
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I never said anything about whole genes. So they cut up DNA and measure it. If they cut up my brother's DNA, they will probably be able to tell that he's related to me, even without whole gene sequencing. Therefore, they have access to my DNA profile despite my never being arrested, solely because they arrested my brother.
And it still dances around the fact that Mr. Thank-you-sir-may-I-have-another above believes that because the police can stick their finger in your ass when go to jail, they can swab yo
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Let's start here. Show me where in the 4th amendment this "allowance" is made. Here it is, in its entirety:
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I did some googling, and it looks like Bell v Wolfish [wikipedia.org] is the relevant case law. It appears that pre-trial detainees may be cavity searched, but I believe the pre-trial bit implies that they have been charged with violating some law, not merely arrested.
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But again, charging does not necessarily require a warrant.
Re:Should have been obvious all along (Score:5, Informative)
Not everyone that gets arrested is arrested for an outstanding warrant. You can be arrested for 'Obstructing Justice' for taking a video of police beating an unarmed man as an example. Whether the courts will see it that way or not is another argument, but a police officer can essentially arrest you for anything they want, whenever they want. Unlawful arrest charges against cops are virtually unheard of.
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Unlawful arrest charges against cops are virtually unheard of.
Just because you don't hear about them doesn't mean they don't happen. The United States Code provides for civil -- not criminal -- redress for wrongful arrest. Civil suits are almost always settled out of court, and one of the provisions of the settlement is typically that the claimant doesn't go blabbing about the case.
Re:Should have been obvious all along (Score:4, Insightful)
Pretty big difference between being searched and having your DNA profile scanned and put into a database indefinitely (where it can functionally stay indefinitely whether you're convicted, never prosecuted, or even if you've been found innocent).
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or even if you've been found innocent
Nobody is found innocent, only not guilty. You are presumed innocent on the possibility - the reasonable doubt - that you are indeed innocent, not the certainty. That is why so many find the taint of the accusation hangs over them, on the other hand it'd be pretty insulting to the victims if they were essentially judged to be liars and frauds when the evidence isn't strong enough for a conviction. We do know after all that the system lets many guilty men walk free by design.
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Pretty big difference between being searched and having your DNA profile scanned and put into a database indefinitely (where it can functionally stay indefinitely whether you're convicted, never prosecuted, or even if you've been found innocent).
Playing the devils advocate here...:
Its not that much different than having your finger prints taken upon arrest when you think of it. And all such fingerprints go to the data base whether you are convicted or not.
If there is a difference, its largely one of perception.
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If you want to go the full distance, it's possible that someone with a prior felony conviction might actually be exonerated on a new charge, based on the DNA sample on file with the state.
I think a lot of the fear in this case is a "slippery slope" type of argument -- as in, once the government has all of this information, what do they intend to do with it? DNA sequencing provides a lot more information than simple identification. What if the government decides some day that people with certain genetic mark
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Re:Should have been obvious all along (Score:4, Insightful)
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I think your math is a bit off.
First you need several dozen more 9s after the decimal.
Second you are conflating percentage of accuracy with the number of permutations of DNA available in the population.
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A .0001% chance of a false negative is not the same as the same chance of a false positive.
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What is the justification for searching someone who has been convicted of no crime? Does that justification apply to DNA?
Search incident to arrest is justified [onecle.com] by the need to protect the arresting officer from danger, as well as preventing destruction of evidence. Do these justifications apply to DNA? No, they clearly do not. DNA cannot be used as a weapon against a police officer, and the suspect's DNA cannot be destroyed.
So it's pretty clear that the existing justifications for searches incident to ar
Arrest?!? Did they really think that would stand? (Score:4, Interesting)
Apparently, they did at least try to specify, initially, that they could only keep these DNA profiles for 2 years. But then they stripped even that restriction of any teeth by allowing the lab to keep it indefinitely (based only on the assurance by the arresting cops that the suspect was still part of an "ongoing investigation") and absolving the lab of any legal penalties for not purging profiles from the database (or any defendant from claiming in his defense that his sample should have been purged).
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Re:Arrest?!? Did they really think that would stan (Score:4, Funny)
Yes. We'd like to talk to you about that. We're really upset that you keep flipping the bird at us. We're just doing our job (and we've noticed you aren't doing yours - hanging out on Slashdot all day).
-- your friends from some undisclosed Government Agency
slashdot fail (Score:4, Insightful)
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Should the ban apply to fingerprints as well (Score:2)
What's the difference between making a person give up fingerprints and giving up DNA without a warrant? Either may be used to search databases, that is, for fishing for possible links to crimes. I think that the two are very much analogous.
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And if you think someone other than the police will never get their hands on this database (or, at least, part of it) eventually, you are kidding yours
Proposition 69... (Score:5, Funny)
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Great; now how about the Feds? (Score:3)
Excerpt:
Automatic expurgation of DNA data upon acquittal? Ha.
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I wonder what the founding fathers would think of all this....but of coursed if they were alive today they would be considered anti-government terrorists.
TFS makes critical error: arrestees != criminals (Score:2)
Actually, no, the whole point (and a key factor in it beingstruck down) is that it is not about DNA collection from criminals.
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The original Proposition 69 in 2004 just limited this to those arrested for sex offenses. But then in 2009 they extended it to everyone arrested for ANY felony. Even if they expected the original version to hold up in court, there is no way in holy hell that they couldn't have know that the 2009 revision would last about 5 minutes in front of any court.
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It was a tiered system when it was voted on. Those who read even the summary knew that. It was phased to provide time for the labs to ramp up for the expected number of samples being taken.
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I've said it many times before, and I'm sure I'll say it many times in the future: California is not a traditional Democrat state. This is a state that demands to keep the death penalty, that was the first to institute three strikes, and that was among the first to adopt mandatory minimums, IIRC. These often pass by significant majorities. Other states may be predictable Democrat bastions; betting on California to go a particular way is often a hazardous bet.
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Re:This is about government power (Score:5, Interesting)
Nope.
The Republicans are just the opposite side of the same "Government Power" coin.
Republicans and Democrats do not differ in how much power they want the government to have. Only on who should benefit the most.
Big Businesses and Super Rich or Labor Unions and Lawyers.
Personally I do not trust either for shit.
People have to stand up and take responsibility for their own lives first and then remove themselves from the government teat.
Once we no longer need the government to provide for our finances we can take away their power over us.
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People have to stand up and take responsibility for their own lives first and then remove themselves from the government teat. Once we no longer need the government to provide for our finances we can take away their power over us.
YMMV, but I'd much rather deal with the government than the corporations. And if you mean like really go it on your own, well I just don't consider that very realistic. There's no way I could provide my own health care for example, a bad traffic accident could be in the millions even though the risk is small. I need to pool that risk somehow, and honestly I'd much rather deal with my country's universal healthcare than the US health insurance companies. And that goes for pretty much every other case where I
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YMMV, but I'd much rather deal with the government than the corporations.
The government is just a corporation that sells our birthright to corporations. Indeed, it is permitting them to control more and more aspects of our lives; you might as well say it's selling us to them. When the corporations own every source of food, housing, and water in the world, then indeed we will belong to them, and they are achieving this ownership through the government. They are taking over water rights through a variety of underhanded deals and taking over food production by having small food pro
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Ok, let's say you get arrested for a felony, they take your DNA swab. I'd agree that that isn't unreasonable (though I would personally argue for requiring a warrant for even that much, but I digress). Then the DA, for whatever reason, decides not to press charges and you're released.
Now, lets say someone gets raped. They take DNA evidence from the attacker and punch it through the database that now includes your information. That is a suspicion-less search, and there are very, very good reasons why the
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DNA evidence might be 99.99% accurate, but that statement falls to pieces when you have 5 million entries in your database and have no way of weighting one match compared to another.
How is DNA info stored in a database, anyway? And why can't you see if there are duplicates with select count(1), dna from californiaresidents group by dna having count(1) > 1 ?
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You can choose not to have a car like I do. You can't choose not to have DNA.
Re:Suspicion comes before arrest? (Score:4, Informative)
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Well given that the rule of law says innocent until proven guilty, your premise is assume guilt not only of this crime but of any crime that might have ever happened or is going to happen, Much like the sex offender databases. I especially like the case of the 18 year old boy convicted as a sex offender for having contact with his 17 year old girlfriend in college. Its the law, he's a sex offender and will be labeled as such for the rest of his life, in databases, with old biddies scanning to see who is
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Your DNA is going to be searched every single time DNA is gathered from a crime scene for the rest of your life (and probably beyond), including crimes that have absolutely nothing to do with what you were arrested for, even if no charges were ever filed or if you were found innocent in a court of law. That is being searched without being suspected.
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"Get those fucking thugs off the streets. Niggers, spics, Republicans and faggots."
I'm a Latino Mulatto Log Cabin Republican, you insensitive clod!
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Police would love to be able to do this. I don't know if it would increase their danger, though, as people who know they have warrants out on them might be more likely to flee or lash out if they believe they'll be identified immediately upon a DNA scan.