the fourth amendment

[KrazyHorse]

Why don't you just move to Sweden or BC or Portland or any of the other northern eurocom countries then? There's not that much difference.

[Jon Miller]

My wife would be ecstatic if we would move to BC and love it if we moved to NA.

I have a job (Assistant Professor) in Chile, which pays better than europe (europe is a bit hard to make work unless you are both european, because they expect your wife to be able to work and for you to not have student debt. I left my postdoc in Brussels early).

JM
(We both enjoyed living in Sweden, but would prefer Canada.)

[snoopy369]

I think the issue is a really interesting one, in large part because it was clearly framed very carefully by the pro-testing side to make it a very good test case.

In particular, I find the fingerprint comparison very compelling. We collect fingerprints both to identify the individual and to identify whether they have committed other crimes, past or future; so the "identifying" argument (that fingerprints are sufficient) is invalid.

From my understanding, they're looking at a combination of markers that when taken in combination offer a very very high likelihood of identification - something like 1 in 1 billion. They're certainly not taking a whole genome (that takes a long time and is horrifically expensive), so we're not looking at the sort of privacy issues some of you are imagining - you can't identify health risks or whatnot from these markers; the markers they chose are all in noncoding regions, so they don't identify anything beyond identification. (See this fact sheet for more information.)

In general I think it's very hard to argue against the majority decision here - it's so similar to fingerprinting in its application and its processing, and in the security risks associated with it, that if we allow fingerprinting (which we certainly do) then we allow this. On the other hand, I instinctively want to argue against it, because it does seem like a slippery slope towards a police state and removing fourth amendment protections (which are certainly not dead; lots of criminals go free because of police mishandling of searches every day, even seemingly minor stuff). I think the Scalia/Thomas split, which is relatively uncommon, is indicative of this - I wouldn't be shocked to learn that the particular voting was rigged after the fact once they realized they as a group had to vote in favor of it.

[DinoDoc]

I don't get the basis of the fingerprinting/DNA comparison largely for the reasons laid out in the minority opinion by Scalia. The idea that the primary purpose behind this is to identify rather than investigate crimes strains credulity to its limit.

[snoopy369]

I think anyone who believes fingerprints are primarily used to identify someone strains my credulity to the limit.

This performs exactly the same function as fingerprints - it directly identifies a single person - but much better. Any argument against this particular application of DNA technology would be equally valid against fingerprinting.

[DinoDoc]

I think anyone who believes fingerprints are primarily used to identify someone strains my credulity to the limit.

The problem in my mind is that DNA collection lacks even a proper fig leaf of anything other than as a warrantless search by the state and as such shouldn't have been allowed by the Court.

[Sava]

Interesting... the way opinions on this matter are splitting.

[snoopy369]

I would also note that 'identify' is importantly used differently in the decision than presumably in your argument, DD. "Identification" can include identifying who committed a different crime; the word is used that way specifically in the statute and the decision. What is disallowed is using the DNA for the purpose of finding family members or other people beyond those whose DNA was correctly collected.

[snoopy369]

The problem in my mind is that DNA collection lacks even a proper fig leaf of anything other than as a warrantless search by the state and as such shouldn't have been allowed by the Court.

Again, I don't think you understand the specifics here, DD. There's nothing unconstitutional about using fingerprints/other identifying information to identify an individual, even to identify a previously unidentified individual.

Consider the following. A crime occurs, and someone gets a look at the perpetrator, but doesn't know him. A sketch artist draws a picture of the individual, and then the police keep that sketch, say in the form of a wanted poster. A few years later, someone commits a different crime and is arrested. The jail officer notices he looks similar to the sketch, and after a brief investigation books him for both charges. This is exactly identical to that, except the 'sketch' is replaced by 'dna profile of the accused'.

[DinoDoc]

Again, I don't think you understand the specifics here, DD. There's nothing unconstitutional about using fingerprints/other identifying information to identify an individual, even to identify a previously unidentified individual.

I understand it well enough. I simply find the Minority opinion to be more persuasive in this instance.

[snoopy369]

I mean I don't think you understand the usage of the word 'identification'. Your differentiation between investigation and identification is either based on flawed understanding, or an intentional misreading.

[Sava]

This is exactly identical to that, except the 'sketch' is replaced by 'dna profile of the accused'.

I'm with DD on this.

I can visually identify lots of people on the street. That is certainly not the same as grabbing a DNA sample and working up a profile on them.

But it's more a question of method, in my mind. If the cops get DNA off of a cigarette, used condom, or glass of water... that's fine. Once you equate visual identification with DNA profile, you open the door for the police to be allowed to stick a needle in your arm for a blood sample.

So yeah... 4th Amendment.

[snoopy369]

From the MajOp:

“[C]riminal identification is said to have
two main purposes: (1) The identification of the accused as
the person who committed the crime for which he is being
held; and, (2) the identification of the accused as the same
person who has been previously charged with, or convicted
of, other offenses against the criminal law”

There's your definition and "fig leaf" if you wish to so characterize it.

Sava, that's why the police aren't allowed to just go down the street swabbing people. That's the very important detail in the law about only applying this to booked and charged prisoners - ie, not just detained, but actually charged with a crime. At that point the State has some compelling interest, and some remit to commit searches.

For example, if you walk by a police station with some weed in your pocket, you're safe under the 4th amendment - they can't search you for it. (Unless they have a dog, but even then they probably can't search you solely on the dog's actions in a public place where you have reasonable expectation of privacy.) But once you're arrested for doing something else, they could search you, find the weed, and charge you with possession. Same thing here - once you're arrested and charged (not convicted, but charged), there's some additional remit (and has always been) for the police to conduct some searches.

[snoopy369]

Let me be clear - I think this is a very, very touch subject, and every bone in my body wants to side with this being a bad thing and unconstitutional. That's why I'm so impressed with the pro-CODIS folks; they clearly set up a case that is very, very difficult to make a legitimate argument against, given fingerprinting/etc. I totally sympathize with the arguments against the majority decision, but at the end of the day I think the majority decision was the legally correct one.

[DinoDoc]

... I think the majority decision was the legally correct one.

By definition, this would seem to always be the case.