DNA swabs and the Fourth Amendment, Round Two: Why Fingerprints and DNA are Different

First of all, OMG you guys, I made it into the MPR News Cut blog! I've made it in there a couple of other times, with a couple other posts, and I always feel really honored that my stream-of-consciousness ramblings are worthy of Bob Collins' notice. But this one was super exciting because he said yesterday's DNA post was "outstanding" and that "this is the kind of writing that legal reporting needs; it needs to wake up the people who think if they didn't commit a crime, what's the big deal about cases involving people who do?" So basically, I kind of felt like I won an Emmy or something. :D  

Now that I'm done gushing w/ excitement, let's get down to business.  Today's post is in response to a few reactions that I got about the DNA analysis from yesterday. Mainly, the primary question I was seeing was, "How is this different than taking someone's fingerprints for identification?"

I did answer that a little bit in yesterday's discussion, but I didn't fully go into it since there were so many things to be upset about and the post was getting pretty long. So, let's go into it a little bit more thoroughly and explore why this is NOT like fingerprints.

If you read the majority's opinion, you would think that the DNA sample was taken, immediately processed, and matched w/ another known DNA sample for the defendant. That's how fingerprinting should work, ideally. Here's a helpful chart explaining this w/ colors and pictures because who wants to read all this?? (Click on the photo and it will open up into a bigger image).

So, isn't that how the police in the King case handled his DNA evidence? 

Nope. Not even close. 

Here, I made you another chart. Click on it so you can see the information better (sorry, I'm not technically savvy enough to know how to make it fit w/o needing to click on it). 

So, the reason we can't just say that this is like fingerprints is that it is fundamentally not the same at all.  It's ridiculous that the Supreme Court even made that comparison.  This is from the dissent: 

"Maryland officials did not even begin the process of testing King’s DNA that day. Or, actually, the next day. Or the day after that. And that was for a simple reason: Maryland law forbids them to do so. A 'DNA sample collected from an individual charged with a crime . . . may not be tested or placed in the statewide DNA data base system prior to the first scheduled arraignment date.' Md. Pub. Saf. Code.

King’s DNA sample was not received by the Maryland State Police’s Forensic Sciences Division until April 23, 2009—two weeks after his arrest. It sat in that office, ripening in a storage area, until the custodians got around to mailing it to a lab for testing on June 25, 2009—two months after it was received, and nearly three since King’s arrest. After it was mailed, the data from the lab tests were not available for several more weeks, until July 13, 2009, which is when the test results were entered into Maryland’s DNA database, together with information identifying the person from whom the sample was taken. 

It was not until August 4, 2009—four months after King’s arrest—that the forwarded sample transmitted (without identifying information) from the Maryland DNA database to the Federal Bureau of Investigation’s national database was matched with a sample taken from the scene of an unrelated crime years earlier."

Do you see why this is not even remotely the same thing as fingerprinting? The sample wasn't used to identify him.  It wasn't even processed until months after his arrest.  He'd already appeared in court and I'm sure the court confirmed that they had the right person when they arraigned him. The sample was entered into the system under the assumption that it was King's DNA. It wasn't ever used to verify that the person they arrested really was King. They took him at his word (and whatever other means they used to identify him) that he was, in fact, Mr. King. Then, they sat on that sample for months until deciding to send it to the national database. 

And here's where the "identification" theory falls completely apart. When they sent it to be tested against unknown case evidence, they removed the identifying information! They didn't include who they thought it was that had provided the sample. They sent an identification-free sample to the national database for testing against unknown samples. Here's how this could have worked, but didn't. They take the identification off the known sample; they send it to a database of KNOWN SAMPLES from KNOWN PERSONS. Like...oh, hmm...where could they possibly get a database like that?? Oh right, the convicted offenders database. Right, the one that basically every state in the county has. 

They run the arrestee's sample against the KNOWN SAMPLES to ensure that the name the arrestee gave them is who he actually is.  If the arrestee's sample matches someone named Bartholomew H. Pennywacker, well, then we've established that Mr. King isn't Mr. King after all--he's Mr. Pennywacker.  That's how you would use a DNA sample to identify someone or verify identification. It serves exactly no identification purposes to send an identification-less sample to a database of OTHER IDENTIFICATION-LESS SAMPLES!!!  That's absolutely ridiculous and nonsensical! The logic in doing that is so far gone. 

So, what was the purpose of collecting King's DNA? It clearly was not for identification purposes. You know what it was for? Generally collecting evidence. Without reason to believe that the evidence they collected was in any way connected to any crime in the unsolved cases database. You know what it's called when police are allowed to just generally collect evidence without needing particularized suspicion? Those are "general warrants." Warrants that are not based on a sworn oath regarding specific criminal activity by a particular person. A free-for-all, in essence. 

And do you know what the creators of the Constitution hated? And the American public as a whole? The general warrant. Which is why the Fourth Amendment was written the way it was. 

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Because generally rummaging around in people's personal items and effects, including their mouths, was intolerable. And it still should be. But, sadly, the Supreme Court has decided that, under the guise of "identification," DNA samples are now able to be generally collected from arrestees, without any need for particularized information. 

You think it won't happen to you. No one ever thinks it will happen to them. Until it does.