What would William Henry Harrison say ...
Posted on 10/12/2009 11:38:57 AM PDT by BGHater
An Indiana appeals court has ruled that police do not need to obtain a search warrant before forcing someone to submit to a DNA test, a move that raises important privacy questions.
The Indiana Court of Appeals ruled on September 30 that no court order was necessary to force a suspect to allow the inside of his cheek to be scraped and a sample of cells to be collected and the DNA analyzed.
The case arose out charges filed against Arturo Garcia-Torres, who was convicted of rape and attempted rape in two cases involving female Valparaiso University students. A police detective collected a DNA sample from Garcia-Torres's cheek without obtaining a warrant, and the defense subsequently argued that a court order was required under the Fourth Amendment, which prohibits "unreasonable" searches and seizures.
In a 26-page opinion, a 2-1 majority of the appeals court disagreed, saying:
We conclude that the DNA sample collection technique at issue here, although minimally invasive, is also one of those limited searches that requires only reasonable suspicion and may therefore be conducted without a warrant. If anything, the cheek swab involves much less impact on the subject than some other searches that all agree may be conducted based on mere reasonable suspicion... A cheek swab takes even less time than a pat-down or field sobriety tests and is painless. Moreover, a swab of the inside of the cheek is very limited in scope, whereas a pat-down will generally involve manual exploration of the entirety of a suspect's body, including the genital areas. Finally, a swab does not carry nearly the same potential for opprobrium as pat-downs or FSTs, which will typically occur on public thoroughfares.
This is an unresolved -- and important -- topic that touches on personal and family privacy rights, individual autonomy, and the right to avoid self-incrimination. Courts have had no problems upholding laws that require the forcible collection of DNA after a conviction (here's one example I wrote about in 2007), but what about forcible collection after a mere arrest?
Courts have split on whether this is constitutional. A Minnesota state appeals court ruled that such laws "violate the Fourth Amendment to the United States Constitution," while a Virginia state court concluded the practice is "no different in character than acquiring fingerprints upon arrest."
The only federal court to address this, which I wrote about in May, adopted something of a compromise, saying that if a judge or grand jury has determined there is probable cause, a swab test upon a felony arrest is permissible. That's narrower than the all-we-need-is-suspicion-of-wrongdoing rule, apparently applying even to even misdemeanor cases, that the Indiana court has invented.
This question is not going away. A Justice Department regulation that took effect in January 2009 orders federal agencies to "collect DNA samples from individuals who are arrested." One difference, though, is that in the federal system, the FBI is required by law to delete DNA information upon request (if arrestees bother to make the request) if the "charge has been dismissed or has resulted in an acquittal."
One difference between fingerprinting and DNA sampling -- which doubles as an argument for why the Indiana majority opinion got it wrong -- is that DNA samples are far more intrusive. The court called it "minimally invasive," which is true physically, but not in terms of how much information it conveys about your (and your family's) genetic makeup.
As the Electronic Privacy Information Center points out: "Genetic data poses significant privacy issues because it can serve as an identifier and can also convey sensitive personal information about the individual and his or her family. As genetic science develops, genetic information provides a growing amount of information about diseases, traits, and predispositions." Depending on exactly what's stored and how it's made available, the information could affect future employment and insurance decisions.
In other words, DNA conveys far more personal information than a fingerprint does. After all, if physical intrusiveness were the only privacy worry, there would be no reason why police shouldn't routinely wiretap your phone calls and intercept your e-mail from afar. The reason wiretap laws exist, and the reason the Supreme Court said a warrant is required to use infrared surveillance, is not physical inconvenience but the information obtained through the search.
A January 2009 analysis from the non-partisan Congressional Research Service concludes: "It would be premature to assume that all compulsory DNA collection laws would survive Fourth Amendment scrutiny. First, amid quickly expanding authority for DNA collection, constitutional analyses might change when judicial challengers include people merely arrested, rather than convicted, for criminal behavior. Second, in light of rapidly developing science regarding junk DNA, courts might find that DNA collection implicates greater privacy concerns than currently assumed. Finally, courts have not yet addressed the constitutionality of ongoing storage of DNA."
The dissenting opinion in the Indiana case makes that point even more directly:
A cheek swab may reveal not only whether the suspect has committed the crime at issue, but also whether he has committed other crimes for which DNA evidence has been collected. Moreover, a cheek swab may reveal legally significant information regarding paternity or maternity, as well as information regarding genetically influenced diseases, conditions, and behaviors, none of which are relevant to a law enforcement purpose. Under these circumstances, I believe that a cheek swab of a custodial suspect is reasonable under the Fourth Amendment only if probable cause exists to conduct such a search.
Why not? I don’t think they need a warrant to fingerprint you. Or to take your picture. How is this different?
DNA. Aka, your ‘property’.
If you don’t ‘own’ parts of your body, then that would suck.
That's fully explained in the article.
You want to search my person, meaning my tissue........you get a warrant and a doctor at a hospital, plus my attorney.
It's complicated, but photographs and fingerprints were first allowable under the premise that a jailer had an obligation to ensure the person he was letting out of jail was the same person that he took in, and - in the event of an escape - the authorities wanted a quick and unimpeachable method of identifying the escapee once recaptured. Of course, almost immediately those fingerprints and photographs were available for other aspects of law enforcement.
There's a school of thought - and one that I ascribe to - that doesn't believe fingerprints and photographs should be made available to anyone other than the jailer, up till the time that the defendant is actually convicted of a crime. Many conservatives, in their zeal to be law & order advocates, have abandoned the fundamental protections provided by the Fourth and Fifth Amendments, IMHO.
The State already compiles WAY too much information on the citizenry, and the collection of such personal information contained inside our very genetic makeup without due process is an affront to our God-given Constitutional protections.
Wake up, If a cop is cut or hurt in an arrest and the perp has a good chance they have aids they can not be forced to be tested yet the cop then has to go through months worth of drugs to fend off the chance of getting aids.
Now you want to say they can force a DNA sample without an warrent? Read the constitution specificaly the 4th ammendment:
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.
Yes I know cops that have had to go through this. Where are their rights?
Forced DNA test without a warrant is a brainless choice. Its UnConstitutional period
seems like this is not much different than getting their DNA from a cigarette butt or coffee cup during questioning......or from rubber gloves worn by officers during field or stationhouse contact
I can sand/acid dip my fingerprints off, I can change my face. DNA is "your number"......you won't be changing it....;)
Not really.
The issue is one of how the information will be used, not of how it’s collected. If it is used exclusively for comparison against other DNA for evidentiary purposes, the parallel to fingerprinting is very close.
It should obviously not be made available for other purposes such as paternity, employment, etc. as the article discusses.
Can anyone say Supreme Court and the 4th Amendment?
It's a HUGE difference. If I have a piece of paper locked in my desk, under every reasonable understanding and interpretation of the 4th Amendment, LE is going to need a warrant to enter my home and to take, or even look at that document. Now, if I throw that document out, and stick in in a garbage can and then place that garbage can on my easement for collection, then that document may be examined without a warrant.
If I "lose" or intentionally discard my DNA or DNA contaminated items, and those items are retrieved - in a public place - after they've been discarded, then they're all fair game for retrieval by LE. But, that's not what's going on in this case. In this instance, the court thinks it's OK for the PoPo to take my DNA - by force if necessary. That is a huge problem, and a complete disregard for the 4th Amendment, IMHO.
I think I am going to file a Copyright on my DNA and tie our court system up in knots for the next 39 years...
You might already be aware of this, but there are cases floating around where drug companies, and other medical research institutions have copyrighted the DNA of patients and test subjects - without the patients or subjects knowledge or approval. It's an entire field of law that's emerging in response to the monumental advances in bio-molecular science.
It raises additional questions like, who has the right to "clone" you - anyone?
If it ain’t his spit, you must acquit.
Ping for your list.
It is profoundly different.
I say this after reading the initial story and initially considering the matter trivial, but...
After a few moments' reflection the different became obvious:
A fingerprint conveys unique information only about the subject.
A DNA sample divulges otherwise private (almost limitless) information subject to abuse about every biological members of his/her family, potentially hundreds (thousands?)of individuals subject to the "reasonable search and seizure" Constitutional protections.
And they've had no problem with mandated collection after the sentence was completed and civil rights restored, either. Just another step towards further loss of rights cheered on by all initially.
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