DNA samples and the Fourth Amendment
Today the Court handed down Maryland v. King, finding that taking of DNA samples from arrestees is not a Fourth Amendment issue because it's used for identification, like photographs or fingerprints taken after arrest. I find Scalia's dissent more convincing -- he points out that the statute requires that the DNA be taken only after the arraignment, and that its processing takes months, so it's hardly comparable to fingerprints and photographs in terms of establishing who the defendant is. The dissent has an unusual group of signers -- Scalia is joined by most of the liberal wing, Justices Ginsburg, Sotomayor and Kagan.
The last footnote is amusing: "Compare, New York v. Belton, 453 U. S. 454 (1981) (suspicionless search of a car permitted upon arrest of the driver), with Arizona v. Gant, 556 U. S. 332 (2009) (on second thought, no)."
Truth is the Court is wrong as, IMO, it is in 99% of its decisions because the Court doesn't understand our system of government. DNA as well as fingerprints, photos, etc are "effects" of a person requiring a warrant for taking. But worse, once the authorities have one's DNA they have the Y-DNA of one's entire male line stretching back generations. AND they have one's maternal DNA going back infinitely.
Much of this is claimed under the so-called compelling government interest BUT in our system the government has no compelling interest. The government has nothing except that which is explicitly granted.
The actual question should have been, "Where in the constitution of MD was the authority granted to the state to decide whether or not such an invasion of the person could be made without a warrant?" Followed by, "Where in the fourth amendment of the Constitution for the United States is there any written exception to the requirement to obtain a warrant prior to any and all searches?" If there are no explicit exceptions, then there are no exceptions. The purpose is to protect every person from overzealous and unscrupulous persons of the type most often drawn to government work.
Yes, I know that the Courts have said the 4th is not applicable to the states (Barron, 1833) and then under Incorporation the Courts have not really fully incorporated the real 4th against the states. Incorporation has been used to add holes to the 4th in order for the government bypass the protections and abuse the people, through such incorrect readings of the probable cause clause out of context, i.e. being required to obtain a warrant AFTER WHICH a reasonable search may be may and without which ALL searches are unreasonable. The Court acts just like Bible thumpers in taking words and clauses out of context and then using their crystal balls to extract impossible and improbable meanings from the words.
Some folks will say you can read the 4th many ways BUT in truth there is one standard format for proper English grammar and that is why the Framers sent all the Constitution through the Committee on Style. And we who read the Constitution must have the proper education in order to read what is written according to the standardized rules of the English language. To do otherwise is to destroy the language and the process of standardization required for communication.
Posted by: fwb at June 5, 2013 10:18 AM
The slippery slope:
Obama's NSA collecting phone records of millions daily...
Secret court order requires VERIZON to hand over 'telephony metadata'...
WH defends, says 'critical tool' against terrorist threats...
Specifically targeted Americans, not foreigners...
DHS: Laptops, phones can be searched based on hunches...
FBI 'WANTS BACK DOOR TO ALL SOFTWARE'...
These are headlines today, 6-6-13. Either we stand behind the 4th amendment word for word (and every other amendment) and hold that all Rights circumscribe government authority or we sit and watch the Courts and the government chip away at the Right. The Bill of Rights is latter law while the Constitution is prior law. The maxim, Leges posteriores priores abrogant, must be recognized as applying. All too often the Court has held that the granted powers are not restricted as in the NFA 34. Taxing FA weapons is an infringement while the command of the 2nd is an absolute. Because the 2nd came later it abrogates the taxing power. Or should if truth were being sought in the Court.
But then the Court works FOR the government not for the People.
Posted by: fwb at June 6, 2013 07:00 AM
This is how it will be abused!
A person is "of interest" in some crime.
There is insufficient evidence to search the person "of interest"
The person is arrested for jay walking.
DNA is taken on arrest then person is not charged for jay walking
Person is exonerated, proven NOT to be involved as person "of interest".
BUT the DNA is now in the system.
Person applies for a job and one question is, "have you ever been arrested"?
Employer demands person's DNA results from police as screening for group insurance.
Person is denied job based on DNA
That's for starters!
Posted by: tom gunn at June 6, 2013 09:41 AM