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Maryland v. King: Are suspiconless DNA searches permissible for crime solving or suspect identification? (Probably, both).

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11 Responses

  1. Ken Rhodes says:

    I am baffled by the most fundamental argument in this whole case–calling a DNA swab a “search.”

    I fail to see how it’s fundamentally different than fingerprinting an arrestee, then checking his fingerprints against prints acquired in other active or unsolved cases.

    Should we require a warrant for fingerprinting, by calling it a “warrantless search?”

  2. Joe says:

    Since the swab is being inserted inside a person’s body, why would it not be a search, limited as it might be, as compared to the fingerprint, which if one wants to be technical, would be more of a seizure? If it was a pinprick, would it be different? Why?

    Scalia is wary about the breadth of fingerprinting. And, if fingerprinting was done in the same way as this procedure is, it would probably not be ‘fundamentally different.’ Has Ken Rhodes read the dissent, including the fact specific nature of the argument made?

  3. Joe says:

    My concern is more on how broad this opinion will be applied than anything. It’s like drug testing in schools. First, athletes. Then, chess club, though they lost a justice when they did that. Maybe, the limits cited by the majority are necessary to retain the five, though the usual suspects supported drug testing to belong to chess club. So …

  4. Ken Rhodes says:

    “Has Ken Rhodes read the dissent?”

    No, I have not. I have, however, read the majority opinion, and I find this statement to be convincing:

    Also uncontested is the right on the part of the Government, always recognized under English and American law, to search the person of the accused when legally arrested. …The validity of the search of a person incident to a lawful arrest has been regarded as settled from its first enunciation, and has remained virtually unchallenged. United States v. Robinson, 414 U. S. 218, 224 (1973). Even in that context, the Court has been clear that individual suspicion is not necessary, because the constitutionality of a search incident to an arrest does not depend on whether there is any indication that the person arrested possesses weapons or evidence. The fact of a lawful arrest, standing alone, authorizes a search. Michigan v. DeFillippo, 443 U. S. 31, 35 (1979).

    If you are *arrested* (not merely stopped or detained), it says unequivocally, you are automatically subject to being searched.

  5. Let’s get this straight. Police must have a valid search warrant to put a GPS tracking device on a car on the public streets to track the movements of the car, but not to stick a swab in the mouth of a person who has been arrested (but not had any level of that mere accusation made), huh? Which is more intrusive? Add to that the fact that DNA information can be kept forever, and be available for any purpose in the future and even past death? This seems awfully inconsistent to me.

  6. Orin Kerr says:

    Justin,

    Actually, the courts haven’t decided if a search warrant is needed to put a GPS tracking device on a car. The Supreme Court has decided that doing so is a search, but whether a warrant is needed remains open. In King, by contrast, it was conceded that the swabbing was a search.

    Also, King leaves undecided whether the “raw” DNA can be analyzed for other purposes beyond obtaining identity information under the same standard.

  7. Ken Rhodes says:

    In an earlier response yesterday, I was asked “Has Ken Rhodes read the dissent?”

    I replied “No, I have not. I have, however, read the majority opinion, and I find [it] to be convincing…”

    Well, After I wrote that I DID read the dissent, and I was disappointed (but not surprised). Mr. Justice Scalia uses over-the-top language and questionable analogies to overstate a case that still fails to convince me.

    At the bottom of all this, I am gobsmacked by the concession that a DNA swab is a “search” while a fingerprint is not. However, getting beyond that (IMO) absurdity which has been accepted in law, Scalia is dead wrong in his assertions about the Founding Fathers alleged imprimatur against searches. I am not an attorney, so all I can offer on my own is what I consider a lifetime of experience, reading, and common sense. However, I find that some pretty noteworthy attorneys agree with me. First, of course, were the majority of SCOTUS. And then this morning, I found this OpEd piece in the NY Times. The authors are professors of law at Yale and Georgetown, respectively.

    http://www.nytimes.com/2013/06/04/opinion/why-the-court-was-right-to-allow-cheek-swabs.html?nl=todaysheadlines&emc=edit_th_20130604&pagewanted=all

  8. Joe says:

    Prof. Amar has various interesting opinions, including as to the 4A (e.g., he is no fan of the exclusionary rule), to reference that op-ed. He was on Chris Hayes last night and is a repeat player on MSNBC. I think he’s wrong here.

    Ken Rhodes didn’t answer my question as to the “search” nature of a pinprick. I still don’t know why he doesn’t agree with any of the nine justices that the swab is a search. To reduce your level of gobsmack-ery, let it be known that there are rules for fingerprinting too. The USSC on down have set standards there. Simply requiring the general public at large to be fingerprinting would be quite controversial on that level.

    The dissent also doesn’t deny you can be searched when arrested. Since you have now read it, you probably know this (in fact, the dissent accepts ‘special needs’ searches even beyond arrest) It is the nature of the search and the usage of its fruits that is specifically at issue here. Again, all nine justices suggest there are limits, the majority noting various (e.g., apparently the nature of the crime matters).

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