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9th Circuit rules DNA testing can be required before release on bail
Sacramento Bee ^ | 9/14/10 | Denny Walsh

Posted on 09/14/2010 3:19:27 PM PDT by SmithL

In the first decision of its kind in the nation, an appellate court has ruled in a Sacramento case that DNA testing is a legitimate condition of release on bail for a federal defendant not yet convicted.

Before a federal felony can be charged, there must be probable cause to believe a crime has been committed, a three-judge panel of the 9th U. S. Circuit Court of Appeals noted in Tuesday's 47-page opinion.

Under those circumstances, the panel ruled, the government's interest in definitively identifying the defendant "outweighs the defendant's privacy interest in giving a DNA sample as a condition of pre-trial release."

(Excerpt) Read more at blogs.sacbee.com ...


TOPICS: Crime/Corruption; Front Page News; Government; US: California
KEYWORDS: 9thcircuit; bail; california; dna

1 posted on 09/14/2010 3:19:29 PM PDT by SmithL
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Callahan, Consuelo Maria
Born 1950 in Palo Alto, CA

Federal Judicial Service:
Judge, U. S. Court of Appeals for the Ninth Circuit
Nominated by George W. Bush on February 12, 2003, to a seat vacated by Ferdinand F. Fernandez; Confirmed by the Senate on May 22, 2003, and received commission on May 28, 2003.

Education:
Stanford University, A.B., 1972
McGeorge School of Law, University of the Pacific, J.D., 1975

Professional Career:
Deputy city attorney, Stockton, California, 1975-1976
Deputy district attorney, San Joaquin County, California, 1976-1982
Supervisory district attorney, San Joaquin County, California, 1982-1986
Court commissioner, Municipal Court, Stockton, California, 1986-1992
Judge, San Joaquin County Superior Court, California, 1992-1996
Associate justice, Third District Court of Appeal, California, 1996-2003

Race or Ethnicity: Hispanic

Gender: Female

2 posted on 09/14/2010 3:21:08 PM PDT by SmithL
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To: SmithL

I think wrong where a physical crime is not involved.


3 posted on 09/14/2010 3:23:08 PM PDT by Sacajaweau (What)
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To: SmithL

Why not? A DNA test is much like a finger print. People arrested get finger printed...they should have their DNA tested also.


4 posted on 09/14/2010 3:25:35 PM PDT by Drango (NO-vember is payback for April 15th)
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To: SmithL
Is that a violation of the 5th amendment protections against self incrimination? If the state forces a sample of DNA, I see that as a violation. If the suspect offers a sample as exculpatory evidence, I wouldn't have a problem. The latter instance would be a voluntary waiver of 5th amendment protection.
5 posted on 09/14/2010 3:29:31 PM PDT by Myrddin
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To: SmithL
So, if you're not convicted or are acquitted, or they drop the charges, will they then destroy the DNA sample (which would be like giving you your bail money back)???

Yeah, I didn't think so....

6 posted on 09/14/2010 3:29:57 PM PDT by Pablo64 (Political Correctness is a DISEASE. <==> TRUTH is the CURE.)
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To: Drango

Correct!!!!


7 posted on 09/14/2010 3:29:57 PM PDT by org.whodat
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To: Drango

“Why not? A DNA test is much like a finger print. People arrested get finger printed...they should have their DNA tested also.”

It feels good to support the state doesn’t it? Of course when it’s your turn they won’t have any mercy on you for supporting them. :)


8 posted on 09/14/2010 3:32:09 PM PDT by dljordan ("His father's sword he hath girded on, And his wild harp slung behind him")
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To: Drango

My only concern would be the situation where an individual goes to trail and is found not guilty. There needs to be a means to removing the DNA results.


9 posted on 09/14/2010 3:34:49 PM PDT by taxcontrol
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To: Drango
I see your point insofar as the DNA sample is used ONLY for purposes of identification. But what happens when every person arrested is tested and the database becomes huge?

Could the information become useful to the government for some other reason? (I am not sure what else they can find from DNA but am suspicious of people like Rham Emmanuel having access to any information about me.)

Used to match DNA evidence collected from a rape or violent felony victim - sure. Used to identify the person who licked a stamp on an envelope containing an anonymous complaint letter - I am not so sure.

10 posted on 09/14/2010 3:42:39 PM PDT by John Galt's cousin (Principled Conservatism NOW! * * * * * * * * * * Repeal the 17th Amendment!)
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To: taxcontrol

“There needs to be a means to removing the DNA results.”

Yeah, sure. You know what they do when ordered to remove records? They remove them from their database onto the PC of someone in their shop. They can then say they’ve been removed and the cops still have access to them. Government agencies are not honest in case you didn’t know.


11 posted on 09/14/2010 3:42:57 PM PDT by dljordan ("His father's sword he hath girded on, And his wild harp slung behind him")
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To: Drango
Why not? A DNA test is much like a finger print. People arrested get finger printed...they should have their DNA tested also.

A lot more can be found out through DNA than just your identity.

If they have DNA they want to compare the suspect's against, and probable cause to believe that it is their DNA, then they can get a court order for a DNA sample.

If the prosecutor doesn't have DNA evidence from the specific crime with which they are being charged, then they don't have probable cause to take DNA. The search (in this case acquiring DNA) must be related to the evidence they have justifying that search.

I is hard for me to think of a case where a finger print wouldn't show someone's identity but DNA would. It might show that they committed a crime in a case where they they had DNA evidence, but that is searching for evidence, not simply verifying an identity.

12 posted on 09/14/2010 3:43:27 PM PDT by untrained skeptic
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To: dljordan

There are ways using security tools and modern encryption to make the records not viewable without the assistance of a supercomputer / NSA


13 posted on 09/14/2010 3:49:27 PM PDT by taxcontrol
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To: SmithL
My problem with the government taking DNA is the same problem I have with the Government taking fingerprints. They digitally store the info. That means if the government wants to mess with you they can just switch your digital DNA or Fingerprints for "crime scene" samples and then arrest you.

Yeah physically your fingerprints or DNA didn't change but with a "bureaucratic mix-up" or computer glitch they can get a warrant to arrest anyone for anything.

Further if they store physical samples of your DNA then they can plant it at a crime scene and then have a fairly good case against you.

Granted they are supposed to use more than just DNA evidence and such BUT my worry is eventually the Justice System will start relying on DNA as the final word. That worries me greatly!

14 posted on 09/14/2010 3:55:20 PM PDT by Mad Dawgg (If you're going to deny my 1st Amendment rights then I must proceed to the next one...)
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To: SmithL

1984 George Orwell.


15 posted on 09/14/2010 3:55:58 PM PDT by lowtaxsmallgov (http://www.chrisgibsonforcongress.com/donate.html)
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To: dljordan

The state has a legitimate police power in correctly identifying people. Thus fingerprints are legal, although they were initially challenged. DNA will soon follow as it should.

Having served my country they have my fingerprints. I have no problem with them having my DNA also. And I see no reason those arrested shouldn’t have their DNA collected and stored.

Like others I have some minor concerns as to the abuse of a DNA database, but that’s another argument, and frankly I’ve not seen a compelling argument on potential abuses.


16 posted on 09/14/2010 3:58:36 PM PDT by Drango (NO-vember is payback for April 15th)
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To: taxcontrol
My only concern would be the situation where an individual goes to trail and is found not guilty. There needs to be a means to removing the DNA results.

This is a search. We have a constitutional right to be free from unreasonable searches without probable cause for that particular search.

If the case involves DNA evidence and there is probable cause, then the prosecution can get a court order for the DNA based upon that.

The courts have ruled that the government can take our fingerprints when we have been arrested in order to identify us. That is a weakening of our rights because the government has a legitimate need to identify who they have in custody.

Under what circumstances can you imagine where fingerprints would not verify someone's identity, but DNA would. Just verify their identity, not provide evidence that they committed some other crime that the prosecution doesn't have probable cause with which to get the DNA.

If such a circumstance is rare, then there is no reason to weaken the rights of anyone who might be charged with a crime. The prosecutor can argue that it is necessary in that particular case.

We don't weaken our rights just because it might be convenient for the government in some relatively rare cases.

17 posted on 09/14/2010 4:00:18 PM PDT by untrained skeptic
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To: John Galt's cousin
"But what happens when every person arrested is tested and the database becomes huge?"

You mean like fingerprints, mugshots and photographs of gang tatoos are huge?

"Used to identify the person who licked a stamp on an envelope containing an anonymous complaint letter - I am not so sure."

You have no expectation of privacy of bodily fluids left on mail, or in other places that it's left in public. If you send a letter to the police, you have no expectation of privacy about the contents of that letter or about the physical letter itself.

18 posted on 09/14/2010 4:13:13 PM PDT by OldDeckHand
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To: SmithL

But don’t you DARE ask them their immigration status...


19 posted on 09/14/2010 4:13:36 PM PDT by OrangeHoof (Washington, we Texans want a divorce!)
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To: Drango
The state has a legitimate police power in correctly identifying people. Thus fingerprints are legal, although they were initially challenged. DNA will soon follow as it should.

It is reasonable that the police need to identify a suspect that they arrest. Under what circumstances would they not be able to identify you with your fingerprints, but they would be able to do so with your DNA?

The need to identify you must be weighed against your constitutional right to be free from unreasonable searches. It is a constitutional right, so it should only be infringed upon if it is necessary, not because the government wants to collect as much evidence as they can without a warrant. They need to justify why the suspect's identity is in doubt and why DNA might provide their identity when a fingerprint was unable to do so.

The police already have reasonable means by which they can identify suspects, they need to specifically justify why they need this additional method.

If this isn't merely an attempt to acquire new evidence, they should be able to provide DNA evidence related to the specific crime to which he is being charged.

If he is convicted, then it might be reasonable to then collect DNA and see if they can connect him with additional crimes.

20 posted on 09/14/2010 4:13:51 PM PDT by untrained skeptic
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To: taxcontrol
'My only concern would be the situation where an individual goes to trail and is found not guilty. There needs to be a means to removing the DNA results."

Why? Do we remove fingerprints from AIFIS if the accused is found "not guilty" later on? No, we do not. Nor do we expunge arrest records for criminals who are found not guilty.

Everyday in America, people are arrested because LE has found a crime scene fingerprint match to a fingerprint located in AIFIS (although it's not done nearly as quickly or efficiently as it's done on CSI:Miami). That fingerprint may have found its way into AIFIS because of a criminal arrest, a government security clearance or military enlistment package, or even because of a bond issued from a private insurance company.

Why should fingerprints, as a means of identification, be treated any differently than a fingerprint or a mugshot?

21 posted on 09/14/2010 4:18:57 PM PDT by OldDeckHand
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To: AdmSmith; Arthur Wildfire! March; Berosus; bigheadfred; blueyon; Convert from ECUSA; dervish; ...

Brace yourselves — Sacramento, California. Thanks SmithL.


22 posted on 09/14/2010 4:30:29 PM PDT by SunkenCiv (Democratic Underground... matters are worse, as their latest fund drive has come up short...)
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To: Drango

“Having served my country they have my fingerprints. I have no problem with them having my DNA also. And I see no reason those arrested shouldn’t have their DNA collected and stored.”

Yeah well, me too but I have still have this problem with the ‘state’ treating me like a serf.


23 posted on 09/14/2010 4:36:54 PM PDT by dljordan ("His father's sword he hath girded on, And his wild harp slung behind him")
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To: SmithL

Katie’s Law - http://www.katieslaw.org/index.html

Katie, 22-year old raped, murdered and body burned in 2003... they had DNA evidence of the killer.

They caught him several years later and turned out he had been under arrest right after Katie’s murder for breaking into another woman’s home. He was released on bond and disappeared. They never knew until they caught him again after several years and finally took his DNA that he was a murderer they had been seeking. It’s unknown if he killed other women in those years he was missing.


24 posted on 09/14/2010 4:49:01 PM PDT by Tamzee (OBAMA ---- ALL SHAM, NO WOW)
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To: SmithL

DNA can be replicated and planted. Someday they might be able to make it from scratch according to a formula. Just think what the government could do with that if they want to frame you.


25 posted on 09/14/2010 5:19:26 PM PDT by Revel
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To: dljordan

Everybody in the US military today has their DNA on file.

As does every contractor serving the US military today.

It is one of the current requirements to serve in the military or to work for the military.

Why? Partially to help identify bodies recovered after combat.... it’s quite easy to imagine that a body could be unidentifiable after being blown up.

What else is it used for? Who knows.... it’s required and it’s part of the deal, so you do it.


26 posted on 09/14/2010 5:40:36 PM PDT by NorthernTraveler
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To: OldDeckHand
Nor do we expunge arrest records for criminals who are found not guilty.

That turns out to not be true. First, if they are not guilty, they are not criminals, and second, if an arrest is made and then a person no-billed by a grand jury, the arrest record for that charge can be expunged.

I know someone that happened to. He was out more than $30K to defend himself and get his record cleaned up after a bad arrest during a nasty divorce.

/johnny

27 posted on 09/14/2010 5:51:52 PM PDT by JRandomFreeper (Gone Galt)
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To: Drango

Why not just put a chip in your head while they’re at it?


28 posted on 09/14/2010 6:05:57 PM PDT by Republic of Texas (Socialism Always Fails)
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To: JRandomFreeper
"First, if they are not guilty, they are not criminals, and second, if an arrest is made and then a person no-billed by a grand jury, the arrest record for that charge can be expunged. "

It depends ENTIRELY on the state. However for federal expungement, is a complicated and confusing process that falls into two categories - legal expungement and equitable expungement. Legal expungement is usually only available if the a court determines that your rights of due process were somehow violated in your arrest, United States v. McMains, 540 F.2d 387, 389 (8th Cir. 1976).

Equitable expungement is much more complicated, and as of now it's not entirely settled law. Some Circuits recognize it, others do not. Depending on where you were arrested, you may or may not be able to seek (or get more precisely) arrested records expunged just for not being convicted.

29 posted on 09/14/2010 6:06:29 PM PDT by OldDeckHand
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To: OldDeckHand
If our system won't let an adjudicated innocent clear his name by getting rid of his arrest record, then the system needs to be burned to the ground, salt sown, and all of the participants in the 'justice process' perpetually shamed.

My example was a state arrest. And the guy was no-billed. That's how egregious the charges were. Because what percentage gets no-billed these days? Not many.

The system has failed.

/johnny

30 posted on 09/14/2010 6:13:09 PM PDT by JRandomFreeper (Gone Galt)
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To: taxcontrol
There needs to be a means to removing the DNA results.

Your dreaming, the health care bill will make DNA of everyone part of their national exter.. uh, er, health care plan.

31 posted on 09/14/2010 6:33:34 PM PDT by itsahoot (We the people allowed Republican leadership to get us here, only God's Grace can get us out.)
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To: SmithL

What, a decision of sanity from the Nutty Ninth? I’m gonna have another heart attack. Hope they start a trend towards more sane decisions.


32 posted on 09/14/2010 7:13:44 PM PDT by MadMax, the Grinning Reaper
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