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Wednesday, June 5, 2013

Shit is real, got me feeling ISRAELIAN

On June 3, 2013 the United States Supreme Court reversed the decision of a Maryland Court tossing out a man's conviction for rape, where the primary piece of evidence linking him to the rape was gained incident to an arrest unrelated to the rape.  In doing so, the Supreme Court opened the door to police taking DNA samples from an arrestee.  Non-lawyers everywhere are going nuts about how crazy this is.  I'm here to tell you how crazy it isn't.

I'll start by saying the majority (the five justices whose decision is now law) fucked up.  There is no question that their reasoning is flawed based on other elements of Maryland's statutory scheme (which I won't explore here.  Just know that the court says the purpose of the DNA sample is to help ID people, yet the statute presupposes you already know who the person is since there's information that must be included with the DNA sample when it is taken).  Justice Scalia in his dissent argues that taking a DNA swab is an unreasonable search because the swab is taken for the purpose of investigating another act of which there is no other evidence.  Under the law there must be some idiom of suspicion before a search can be granted, and even then a warrant is more than likely necessary.  But searches incident to arrest do not require a warrant; the suspect is already in custody and assumes the arrest had valid probable cause.  Once at the station the police can ask you to strip, go through your pockets and purse and even ask you to provide a urine or breath sample (assuming you're arrested under suspicion of driving under the influence of drugs/alcohol).  The type of search has to be rationally related to the reason for the arrest; asking someone arrested for battery to get naked, squat and cough is not a search rationally related to the crime of beating someone's ass.  Collecting a sample of the battery suspect's DNA however might be rationally related to the crime of beating someone's ass--that DNA may end up being a valuable piece of evidence should other identification become a problem.

What is glossed over throughout the opinion however is that building a database of criminal information is not problematic.  Building a database of violent offenders post conviction is not an issue; the FBI already does it.  When someone is arrested, it is completely constitutional to take their picture, capture fingerprints, note scars, tattoos or other markings...and add them into a database.  Each fingerprint (and information tied to the prints) are given a unique identifier called an IR number.  The majority opinion suggests that DNA evidence gathered subsequent to arrest is like these other methods (fingerprinting, photographs, etc)...but never argues that the point of doing so was to perform a completely valid reason of building a database of information on criminals.  The majority specifically avoids suggesting replacing fingerprints with DNA, but doing so would have made its decision more valid.

This is where collection of DNA is not crazy.  The state's interest in the cases of people like James Holmes, Adam Lanza and Nidal Malik Hasan is such that it vastly outweighs their privacy rights.  These people allegedly pulled assault rifles out on defenseless people and allegedly pulled the trigger allegedly killing many. I'm pretty sure having a database of nut jobs like these is constitutional.  No not people who may be mentally ill or have a history of mental illness, but a database of people who are charged with crimes against people (aka "violent crimes" although all violent crimes aren't always violent, like for instance burglary).  Collecting DNA in these cases is certainly related to the crime for which they are arrested--it could very well be evidence in that case.  Collecting a DNA sample for a DUI or other crimes against the state or property...not so much.

Everyone should calm down with regard to the police collection of DNA evidence (the FBI and NSA's project to build a face recognition database should be much more problematic).  The collection is certainly a search, but it has to be rationally related to the crime committed.  Better yet--just don't break the law and you should be fine.

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