Bell Curve The Law Talking Guy Raised by Republicans U.S. West
Well, he's kind of had it in for me ever since I accidentally ran over his dog. Actually, replace "accidentally" with "repeatedly," and replace "dog" with "son."

Monday, January 10, 2005

An In-gene-eous Plan

An article in today's NY Times, To Try to Net a Killer, Police Ask a Small Town's Men for DNA, pokes at some interesting questions. The gist of it is that the police in Truro, MA are stumped and are asking (politely) every man in town to give them a DNA sample (the police are sitting in sub shops and waiting at the postal counter, ready with swabs).

This is not a new concept. The article mentions that these mass DNA collection drives have been used successfully in England and Germany, including a case in 1998 when they collected 16,400 samples and found the man who'd raped and murdered an 11-year old girl (the man also confessed afterward.) It's also been done in this country before.

The program is "voluntary," but the police are clear that they will, "pay close attention to," those who do not provide a sample. The police sergeant said they were, "trying to find that person who has something to hide." This aspect of the DNA sweep is mostly what has offended some residents, who called in the ACLU. It's worth noting that after a similar sweep in Baton Rouge last year, the samples were kept on file, and now 1,200 men are suing to have them destroyed.

Question for our legal scholars: how does this sit with the constitution? While I appreciate the police's dilemma, this certainly seems to be on the border of the law. On the other hand, if everyone were required to give a DNA sample to the DMV as a matter of course, wouldn't that be essentially the same thing? And don't we do something like that with fingerprints?


The Law Talking Guy said...

U.S. Constitution, Amendment IV:
"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."

Although Ashcroft, Gonzalez, and GWBush think this is archaic, it means that the right to search a person is conditional on a declaration by a law enforcment official, under oath, that there is cause to suspect that the target of the search is guilty of some misdeed. General searches of everyone are absolutely contrary to our law and tradition. There are many reasons why this is so, but one reason is always most compelling for me: evidence cannot be mishandled if it is not collected.

Dr. Strangelove said...

Very interesting. I wasn't sure if asking for fingerprints or DNA counted as a "search." Does it?

Here's a hypothetical: would taking photographs of everyone be a "general search"? What if we could take pictures of fingerprints or sequence DNA remotely, with no physical contact? What if we could just hover a blimp over a stadium and get biometrics on every person in it? Would that be OK, or not?

I am sympathetic to your view that if evidence is not collected it cannot be mishandled. That is not a constitutional principle though, is it? I'm not trying to be argumentative, I am honestly curious and trying to probe.

Raised By Republicans said...

The photo requirement is interesting. Wasn't there a case in Florida of a Muslim woman who claimed that the requirement that she remove her veil for her drivers' liscence picture was an "illegal search?" LTG?

Also, aside from that particular example, I'm generally concerned about the tendency of Americans to tolerate increasing amounts of state inteference in their lives combined with increased state secrecy about how and where that interference will take place. Not a good combination in a democracy!

The Law Talking Guy said...

The constitutional principle is as I stated it: no unreasonable searches and seizures, no warrants without probable cause. The *justification* for it is, as I tried to point out, more than just amped up privacy concerns. The justifications are legion. Our colonial forebears knew that the King's men could find the evidence they were looking for if they were allowed in everywhere. They knew that searches were often physically destructive. They also knew that the cloud of suspicion would attend any investigation, and was unwarranted. It's about dignity and respect. It's about, in the phrase of Justice Brennan, "if liberty means anything, it means the right to be let alone."

"A man's house is his castle; and while he is quiet, he is as well guarded as a prince in his castle." - James Otis, 1761.

A *prince*, not a servant. Asking for your DNA is a seizure ('search and seizure'). They are taking part of your body. If they could do it remotely by scanning you or something, that is a search. Unless they have a reason for suspecting you personally, the government is not supposed to collect your information. Terrorists can destroy our lives and buildings; only the government can take away our freedom and dignity.

Raised By Republicans said...

Several comments here:

1) "if liberty means anything, it means the right to be let alone." That has to be one of the most "American" statements I've ever heard!

2) James Otis in 1761!? I assume then you are not talking about Jim Otis the famous full back for the national champion Ohio State Buckeyes in the late 1960s?

3) "only the government can take away our freedom and dignity" reminds me of the ending of a Woody Guthrie song about Pretty Boy Floyd the bank robber:
"...Some'll rob you with a six gun,
And some with foutain pen
But as through your life you travel
And as through your life you roam
You'll never see an outlaw drive a family from their home."

US West said...

LTG is right about the Constitution, but what about the "exceptions"? The Court has consistently held that unless there is probable cause, general searches are unconstitutional. But it has allowed sobriety checkpoints under certain conditions, for instance, and the argument has been made that those violate the 4th. And But in 1990, the Court allowed them because the danger to public safety was serious enough to justify the brief intrusion, just like airport searches are allowed. Then there is the whole PATRIOT Act thing that allows just about everything.

But in the case Strangelove mentions, does the fact that a crime was committed in a given local constitute probable cause, thus allowing for such a sweeping "search"?

From what I have read, there seems to be no problem taking DNA from an individual if he is a suspect and probable cause has been established. However, most legal specialist agree with LTG that testing whole groups of people would, indeed, be a violation of the 4th amendment. This is becoming an issue because more and more states, including California, are setting up DNA databases.

From what I have read, even fingerprints may not be taken from an individual unless there is a specific, individualized reason for believing that the individual has committed a crime. One case I have seen sited was Davis v. Mississippi, 1969.

During the investigation of a crime scene, police discovered a set of fingerprints, but couldn't identify their owner. So they rounded up all the young African Americans in the town and had them printed. The prints matched 14 year old John Davis who was convicted and sentenced to life. The Court ruled that Davis' fingerprints had been illegally obtained, and reversed his conviction. There was no probable cause for the police to have made him give his prints.

I don't see how DNA would be treated any differently. But what authorities in MA are doing is getting around all of this by allowing DNA testing to be "voluntary". But the argument can be made that the police are using "inherent coercion" and thus any evidence discovered would be inadmissible.

The Law Talking Guy said...

USWest, the word you're looking for is not "exceptions" but "contours." The contours of what is a reasonable warrantless search are not spelled out in the Fourth Amendment, but through case law and experience. Sobriety checkpoints are an unusual stretch based largely on the idea that driving is a privilege conditioned on permitting certain kinds of searches. I think this idea is misguided - driving is a right (like using a blender or taking a bus) that should be limited only when specific circumstances demand it, and one should not be required to surrender constitutional rights to do so. But the law has been decided the other way for some decades now.

US West said...

I was thinking of the Automobile Exception. I think the issue has been whether or not you have a reasonable expectation of privacy in your car. The ruling seems to be that you don't, thus the exception. And the justification is just as you have stated: Driving is a privilege, not a right.

In addition, the Court has ruled that rights can be abrogated when there is a serious enough concern for public safety- thus the sobriety checkpoints, the state of emergency, wartime exceptions (PATRIOT ACT) etc.

Let’s take another idea around the same point. In CA, to get a driver’s license you have to agree to take breathalyzer test if asked to by an officer. You actually sign a document agreeing that you will not refuse if asked. So you are forced to trade your right to privacy for the privilege of driving. And we are supposed to trust that officers will not “ask” us to take a test unless there is probable cause. And all they have to do to establish probable cause is to pull you over for a seat belt violation and ask in the process if you have been drinking. If you answer yes, it’s all over.

I am sure that there will continue to be challenges to such things going forward. The question will be if the Court will grant certiorari and if so, how a newly composed Court would rule.

Dr. Strangelove said...

RbR remembered correctly: in Freeman vs. Florida DMV, the courts ruled that the muslim woman had to "momentarily" remove her veil for the photograph. One aspect of this case that is relevant to the present thread is the court's reasoning.

One might have expected the State to argue that driving is a privilege, a voluntary activity, and so extra restrictions on the license were acceptable. But instead they went the opposite direction. The State argued (and the court agreed) that, a driver license was the official ID card for Florida, used by even non-drivers to "negotiate everyday life." The court found that the State had a compelling interest to prevent "identity theft and fraud" and also:

"The state has always had a compelling interest in promoting public safety. That interest is served by having the means to accurately and swiftly determine identities in given circumstances. In the past 25 years, identification technology has advanced greatly and continues to improve. It remains incumbent upon the State that it seek to protect its citizens with the best available technology. The evidence presented shows that photographs and digital images, although not perfect, are still the best available means to make crucial identifications in the shortest possible time."

If this holds up, then it would seem to suggest that if DNA could be used to swiftly determine identities, perhaps also remotely, then the state would almost be obligated collect DNA samples from everyone. For the record, this verdict was rendered on June 6, 2003, by circuit judge Janet Thorpe of Orange County, Florida. The case was appealed to the 5th District Court of Appeal; oral arguments were delivered on June 9, 2004. So far as I can tell, their opinion has not yet been published.

US West said...

Dr. Strangelove,
I don't think that DNA will rise to the same standard as a photo ID. The nature of the photo is different. I could argue that your photo is really part of the public domain since people see you everyday. And we treat photos and even signatures differently than fingerprints, medical and dental records, which before DNA were the prinicple ways used to identify people. For instance, we tend to accept that surveillance cameras will photograph or monitor us. I might argue that there is a public expectation that people will have photos on their IDs and that their faces will be visible. We have them for passports as well as drivers’ licenses. We accept this as standard practice and the courts have ruled in the past that some things become legal simply because they are so prevalent in society.

I am not sure if you are trying to compare the FLorida and MA cases, but if so, it is apples and oranges. The facts of each case are very different. In MA, there had been a crime committed and law enforcement wanted to find a suspect. It isn’t the same thing as someone arguing that taking a photo without a veil is an illegal search.

The question in the MA case is if the fact that a crime was committed constituted probable cause to have a whole town of men DNA tested. And if not, would it constitute a 4th amendment violation.

My guess would be that the Florida case was argued around the 14th Amendment (states rights). This is a completely different animal.

Also, the question isn’t about the evasiveness of the information collection. So gathering DNA remotely or through a swab isn’t really at issue. It might be in other instances, but not in the cases we are currently exploring.

Let me throw another one into the mix. Ferguson v. City of Charleston (2001). The hospital in Chareston started turing over urine samples of pregnant woman who tested postive for drug use to police. These women were never told that their urine samples would be used in this way. Many of these women were convicted of child abuse, child endangerment, and distributing drugs to a minor (through the ambical cord no less) as a result of the hosptial's actions. Besides the obvious problems associate with the nature of the crimes these women were prosecuted under, there was the 4th amendment issue. The Court ruled 6-3 that these tests violated the 4th because they were used to generate evidence for law enforcement purposes.

The same would hold for the blimp flying over a staduim collecting DNA remotely. If it is used for law enforcement purposes without consent, it is a violation of the 4th amendment. If there is one guy in the staduim that you are after, your warrent will say so and you can only collect DNA from the one guy.

My guess is that the Florida case will go no further than the circuit court of appeals. I don’t see where the US Supreme Court would even consider it given the current climate and the other, more important issues on the table. And if the recent decision on Federal Sentencing guidelines is any indication of a new trend, the Court is even more divided and confused than usual.

In any event, I would say that in terms of DNA evidence, Davis v. Mississippi is still controlling, and I am sure there are several other cases that we could

Dr. Strangelove said...

USWest writes, "The nature of the photo is different. I could argue that your photo is really part of the public domain since people see you everyday." Very good... that's a distinction that makes sense. I had not thought of that.

The Law Talking Guy said...

The issue of DNA searches vs. the photo ID case are rather discrete. The Muslim woman was claiming religious exemption, not privacy rights. She was trying to be discreet. Sorry for the pun.

Reason: the state has long ago decided that you may have to carry a photo ID in order to drive. Some states require a thumbprint now. If states in the future require a DNA sample to be on the driver's license, it may come to pass.

The Muslim woman was defeated, in the end, by the rationale that if she wore a veil, the photo ID did not serve its purpose. It's kind of the same reason you're not allowed to close your eyes during the photo - or rather they'll keep taking it till they get one with eyes.

None of this would justify asking everyone in town to produce their picture IDs for a lineup.

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