Fourth Amendment, Schmourth Amendment.

So, I couldn't not get mouthy about the latest Supreme Court travesty decision, Maryland v. King.  It was just released today and it's pretty much the worst.  If you're not familiar w/ it (and I'm guessing you're not because you probably have a life and don't read this kind of stuff for fun), the quick and dirty version of the case is as follows: 

Guy named King gets arrested for a "serious" offense (assault charges).  While he's being booked for this charge, the police collect a buccal swab from him as part of the booking process. (This is not routine in all states--yet. But I am guessing it will be soon after today's decision...).  Once they had this, they eventually ran it through a database of unknown DNA samples collected from other crimes and--what do you know--it matched DNA collected from an unknown perpetrator of a rape.  Boom, Mr. King now finds himself facing a new charge because his DNA matches that unknown DNA from the rape. 

The question presented was whether police could obtain a DNA sample from a person who was arrested--not convicted, just arrested and thereby still presumed innocent--without needing to get a warrant.  Now, pretty much every state allows the collection of DNA evidence to be collected from convicted persons.  That's a different situation entirely--those people have actually been found guilty and convicted of a crime.  However, when we are at the arrest stage of the proceedings, the person is not convicted and is not guilty of any wrongdoing. 


The Supreme Court heard this case and for whatever reason, decided to totally screw over everyone in the entire county by stating that the collection of an arrestee's DNA as part of the booking process is totally fine--I'm pretty sure that's the exact language they used.  "No, for realz, it's totes cool w/ us if you do that." The Court reasoned that this was simply an identification process and was akin to fingerprints and/or booking photos.

Now, what's wrong w/ that, you may be thinking.  Why is that a bad thing, if we are able to solve cold cases by doing this?  Don't we want these bad, bad, terrible people off the streets and don't we want justice for the victims of unsolved crimes?  Clearly if running someone's DNA does that, then by all means, we should do it, right?  

Wrong. 

That's a terrible idea. For a myriad of reasons! I want to shake you if you were thinking that, so that you'll realize how horribly wrong you are on it. You should be terrified of this decision.  Because it means that the government gets to invade your privacy, gets to take your DNA, gets to have more infringement on your rights, all w/o needing any warrant of any kind. 

So, let's discuss for a few minutes why this is a terrible, horrible, no-good, very bad ruling. 

1. Booking photos are not a search.  A buccal swab is.  The Court concedes that a buccal swab is a search under the 4th Amendment but then says its analogous to non-search identification procedures like taking a booking photo.  This is stupid beyond belief.  The government doesn't have to invade your privacy to see your face, unless you are a hermit who never leaves the house ever. Barring that, if you're out and about in the public sphere, your face--or at least some part of it--is generally visible. So, no privacy interest is at stake for that and a booking photo has never been considered a search by the courts. 

2. Fingerprints and DNA are different. Fingerprints are collected to make sure that the person who you have arrested is the person he/she says he is. We have your fingerprints on file from an arrest 7 years ago and there's a dude w/ the same name as you who also has an arrest history but his is way worse than yours so we want to make sure we have the right person.  We want to compare your fingerprints and other identifying information against the current information and make sure we are dealing w/ the same person. 

Theoretically, you could do that w/ DNA samples too.  But that's not how the sample was used in this case, which is why the Court's reliance on it being an "identification" procedure is complete and utter crap.  In this case, the stupid thing wasn't even processed until well after the underlying case was underway.  The defendant had already been identified.  The sample wasn't used to make sure they had the right Mr. King.  The only thing they did with that sample was run it through the database of unknown samples to see if he could be connected with any unsolved cases. So while fingerprints have been used and are used for identifying people, the DNA in question here was not. Ergo, fingerprints and DNA are different because they are being used very differently. 

3. Perhaps you are now thinking, "Well, so what? I haven't committed any crimes. I won't be arrested. It won't affect me at all." Really? Well, tell that to the many people who have been wrongfully arrested and eventually cleared both pre-trial and (sadly) after conviction. I bet they never thought they'd have to worry about that either. And yet, they did. 

So, you think, "Okay, so maybe I get arrested wrongfully, but I didn't commit any crimes so my DNA wouldn't be involved in any other crime scenes, so who cares?"  Oh how incorrect you are, my friend. We leave DNA all over everything.  We're just shedding DNA in a cloud around us. Skin cells, saliva, hair, mucous, blood, semen, etc., etc., etc.  You touch anything and you're leaving DNA on it. So, let's say that you decide to donate some items to a local thrift store.  This includes a hammer, some old saws, and some other tools that you don't need anymore.  Somewhere along the line, you cut yourself on one of the saw blades.  You wiped it up, but didn't worry too much about it. You also grabbed the hammer to do some work and you were bleeding a little bit still, so you wiped that off too.  Except that your blood (and DNA) managed to work its way into the wood grain, even after you wiped it off.  These items are now at the local thrift store, for sale.  Now, Murderer comes to the thrift store to buy a hammer so he can beat someone to death.  He wears gloves when he buys the hammer--your hammer--and when he bludgeons the person.  He drops the hammer at the scene.  The police collect your hammer (with your DNA in the woodgrain) from the scene.  The find the victim's blood and blood from an unknown person. They don't know who that person is, but they want to find out because, hey...why would someone's blood be on this murder weapon if they weren't involved?

You later get arrested for some serious offense that you are entirely innocent of but happened to be in the wrong place at the wrong time.  You're fingerprinted, you're photographed, and your buccal swabbed.  You're eventually cleared of the charges, with the police offering a sincere apology.  But, your DNA has been sent to the lab to be run against the unknown samples database. And guess what?!  YOUR DNA MATCHES AN UNSOLVED MURDER! Lucky you!! Now you're the prime suspect in an unsolved murder and good luck trying to explain away that DNA evidence on the murder weapon.  If the buccal swab had never been taken, you wouldn't be in this mess, but it was and so now, you find yourself looking at life in prison for a murder you didn't commit but you can't remember even selling the stupid hammer to the thrift store because it was so long ago and of course you didn't save the documentation of the sale because why would you have ever needed that? 

Think this is completely crazy? It's not. It's ridiculously easy for something like that to happen because we are constantly leaving DNA all over everything.  And if all the police have to do is arrest you to be able to take your DNA, then this is not the stuff of imagination. The police should not be allowed to take DNA from non-convicted persons.

4. DNA is not as infallible as everyone thinks it is. As I have mentioned before, when crime labs do DNA testing, they have what's called an unexpected results log, where they have to keep track of results that are not trustworthy because they have some problems w/ contamination. This happens more than people know because it's not discussed.  But these logs can be (and often are) pretty lengthy.  So, introducing more DNA into these labs that can be cross-contaminated w/ other samples is a terrible idea. 

5. Scalia really lays out the legal arguments better than I possibly could, so I'll leave it to him: 

The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment. Whenever this Court has allowed a suspicionless search, it has insisted upon a justifying motive apart from the investigation of crime. It is obvious that no such noninvestigative motive exists in this case. The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous.

So while the Court is correct to note that there are instances in which we have permitted searches without individualized suspicion, “[i]n none of these cases. . . did we indicate approval of a [search] whose primary purpose was to detect evidence of ordinary criminalwrongdoing.” That limitation is crucial. It is only when a governmental purpose aside from crime-solving is at stake that we engage in the free-form “reasonableness” inquiry that the Court indulges at length today. To put it another way, both the legitimacy of the Court’s method and the correctness of its outcome hinge entirely on the truth of a single proposition: that the primary purpose of these DNA searches is something other than simply discovering evidence of criminal wrongdoing. 

The Court alludes at several points to the fact that King was an arrestee, and arrestees may be validly searched incident to their arrest. But the Court does not really rest on this principle, and for good reason:The objects of a search incident to arrest must be either (1) weapons or evidence that might easily be destroyed, or (2) evidence relevant to the crime of arrest. Neither is the object of the search at issue here.

And then THIS!!

The Court disguises the vast (and scary) scope of its holding by promising a limitation it cannot deliver. The Court repeatedly says that DNA testing, and entry into a national DNA registry, will not befall thee and me, dear reader, but only those arrested for “serious offense[s].”  I cannot imagine what principle could possibly justify this limitation, and the Court does not attempt to suggest any. 

If one believes that DNA will “identify” someone arrested for assault, he must believe that it will “identify” someone arrested for a traffic offense. This Court does not base its judgments on senseless distinctions. At the end of the day, logic will out. When there comes before us the taking of DNA from an arrestee for a traffic violation, the Court will predictably (and quite rightly) say, “We can find no significant difference between this case and King.” 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. 

The only arrestees to whom the outcome here will ever make a difference are those who have been acquitted of the crime of arrest (so that their DNA could not have been taken upon conviction). In other words, this Act manages to burden uniquely the sole group for whom the Fourth Amendment’s protections ought to be most jealously guarded: people who are innocent of the State’s accusations. 
Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; 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.

Did you catch that??

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. 

Absolutely frightening.