More on the destruction of the Fourth Amendment

In case you missed it: The Supreme Court has ruled that the police can take a DNA sample from a person without probable cause, without a warrant, and without a conviction. So long as a person has been arrested for a felony, he is subject to an intrusion upon his body. It’s an overt violation of the Fourth Amendment that, given the specific arguments of the Court, will undoubtedly lead to DNA sampling for absolutely any crime for which one may be arrested, including jaywalking or running a red light.

There are incredible problems with all this. First, unlike with fingerprinting, the point of DNA sampling is not to identify a suspect. The sole point is to solve other crimes. This is the explicit intent of the state legislatures that have passed such laws. It is exactly the same as if a state legislature declared that a person’s home was automatically subject to being searched upon that person’s arrest. The police are now allowed to go on horseshit fishing expeditions.

Second, while there are often restrictions placed upon what the police are allowed to do with your DNA, that can be changed on a whim by a given state’s governing body. Moreover, do you trust the government to keep its blinders on? If you had a 100 page journal and a judge told the prosecution that it could read it but it had to stick to pages 14-17, do you really think that would happen? Of course not. Pages 1-13 and 18-100 would be absolutely scoured, regardless whether or not the information found therein could be used directly against you.

The only civil liberties decisions of the past 100 years more important than this one are Brown v Board of Education and Loving v Virginia. Every American is forever subject to suspicionless searches and seizures, less the states pass a sorely needed amendment to the constitution.

7 Responses

  1. I don’t like it either, but indulge me as I play devils advocate for a moment.

    You seem to be saying that the delay, the fact that DNA isn’t instant or speedy in any sense, means that there is little reason to take samples… But that isn’t entirely true, there have been some developments recently in the field and DNA testing may very soon be fairly cheap and fast. I’m no expert, but I do read the news, especially when I see interesting headlines.

    If that were to become the case, would you change your mind? After all, fingerprinting works the same way, and DNA is more accurate. Fingerprinting has only very recently become a speedy process, only 20 years ago comparison still had to be done by hand, ink on paper, that also took weeks.

    As I said, that’s just devils advocate, I agree with you on everything but one point: fingerprinting is not used to identify people the way you think, fingerprints are taken so that a persons previous arrest record may be determined, even if they have managed to fool the police with a false name or ID.

    As far as I’m concerned fingerprints, DNA and photographs, any and all of it, should be destroyed if a person is not found guilty, and no cross checking of any kind should be done before the sentencing phase, when past deeds are weighed. Otherwise, what stops police from arresting someone just to obtain fingerprints and DNA?

    The case is Maryland v. King, you left that out. The entire opinion and dissent (written by your man Scalia of all people, you left that out as well) can be found here:

    “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.” ~Scalia (I thought you would like that, I know I did)

  2. I fully expect the timelines to get better and better in terms of DNA sampling. That’s part of the reason I didn’t include any argument to the effect, but even if it would necessarily always take weeks to do for some bizarre reason, I still wouldn’t argue that a timeline is important here. As you said, fingerprinting was once a lengthy process, so my problem doesn’t lie there. Where I object is in the intent of these laws, their necessity, the adequate alternatives to identification that seem to have been ignored by the majority Justices, and most of all, why the hell should the government be given access to such an incredible amount of information? I just keep imagining someone who is identified by DNA on the basis of matching DNA that is found to have the dominant gene for Huntington’s disease. So now the person has been illegally searched, had personal medical information put into the public sphere, and has been told he will die an early death. (It’s 50/50 if a person will inherit the genes for Huntington disease. Many people don’t want to know if they got it since it’s a death sentence.)

    I’m not sure what it sounded like I was implying, but what you’ve described is my understanding of why fingerprinting is done. That, as it happens, is a legitimate booking procedure which, incidentally and conveniently, may also solve other random crimes. It’s akin to plain sight laws in my mind.

    I was impressed the Scalia took the right side on this one. He’s usually more of a law enforcement douche, so this was refreshing. But the only reason I didn’t link to him (or to the dissent or even a news article) was because this post originated as a Facebook rant, so I just took it from there.

  3. I’ve already contacted our honorable 56th and 57th district House members about this ruling. In 2012 Maine became one of the states that does these unconstitutional searches and seizures. I’m hoping we can reverse that.

  4. Matt and Corey are both good guys.

    I suggest you join that group, it’s Corey’s, strictly speaking, but Matt Pouliot, is also a frequent flier there. I know that I get good responses when I go there to bitch.

    I think the only way I could support DNA sampling would be something like the way I described. Once you are convicted of something, I wouldn’t have much of an issue with them running DNA to check for unsolved cases or crime committed under another name, simply because past crimes are taken into account for sentencing. My rationale there is that one does voluntarily give up certain rights when one chooses to commit crimes.

    As an aside, military members are required to give DNA samples, but they can only be used to identify remains, and LE has no access. In theory at least. I was happy to have that sample on file when I was a soldier, but I requested it be destroyed after I got out, otherwise they keep it for 50 years. It didn’t worry me too much because the samples aren’t processed, they are just blood splotches on a paper card. It was pretty gruesome actually.

  5. I don’t have a problem with people being required to give up samples once convicted, but it seems to me that we ought to restrict that to felonies. But even if we weren’t that reasonable, at least the presence of due process would give these anti-Fourth Amendment people a logical leg to stand on.

  6. I’m not so interested about distinguishing between felonies and misdemeanors, but rather between the nature of the crime itself. I don’t see any need to take the felon Bernie Madhoff’s DNA.

    Imagine if it fell into the wrong hands and someone managed to clone him in the future… We just don’t need that kind of risk.

    But seriously, those convicted of violent felonies, or repeated violent misdemeanors, rape, assault, criminal threatening, etc., etc.,

    This shit isn’t cheap, which is one thing that boggles me about the practice now, why are they wasting money on this? As near as I can tell, actually processing DNA cost quite a lot, and if they are just doing what the DoD does with soldiers (warehousing for possible future use), than they aren’t using it for any sort of identification.

    To be fair, and I try, I understand and agree with the intent of taking DNA, we want to solve crimes. I also understand and agree with some of the efforts to restrict certain speech. The problem is we cannot trust the government. I think it was Madison who said that if all men were angels we wouldn’t need the Constitution (which I always found suspicious, because if all men were angels we wouldn’t need governments, or corporations for that matter).

  7. […] rule this way. I didn’t think it would be quite this lopsided, but there was never any doubt. This Court hates the Fourth Amendment. They aren’t consistent with the Constitution, but at least they’re consistent with […]

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