Why, Supreme Court, Do You Make Me Agree With Antonin Scalia?

Another Fourth Amendment loss for citizens handed down by the Supreme Court.  The case is Maryland v. King (pdf).

The gist of the case is Alonzo King was arrested for an offense.  During the arrest, they took a cheek swab without consent to get DNA evidence from him.  He was never convicted of the offense for which he was arrested.  The DNA evidence they collected, though, brought to light that he was a suspect in a rape case.  The court, in a 5-4 vote, concluded that it’s perfectly fine for police to collect DNA evidence via cheek swab because it’s a trivial violation of a person’s privacy.

Kennedy wrote the opinion and was joined by Roberts, Alito, Breyer, and Thomas.  Scalia wrote the dissent joined by Ginsburg, Sotomayor, and Kagan.  And what a forceful dissent it is.  A peek:

The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment. Whenever this Court has allowed a suspicionless search, it has insisted upon a justifying motive apart from the investigation of crime.

It is obvious that no such noninvestigative motive exists in this case. The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous. And the Court’s comparison of Maryland’s DNA searches to other techniques, such as fingerprinting, can seem apt only to those who know no more than today’s opinion has chosen to tell them about how those DNA searches actually work.

This case makes it ok for the police to collect DNA from anyone they arrest no matter the offense.  Protest against the government, DNA swab.  Talk back to a police officer, DNA swab.  You get a DNA swab!  YOU get a DNA swab!  YOU ALL GET DNA SWABS!

Blargh.  With all the talk about Obama disobeying the Constitution and taking away our rights, no one’s paying attention to the Supreme Court which actually IS taking away our rights.

17 thoughts on “Why, Supreme Court, Do You Make Me Agree With Antonin Scalia?

    1. Jean-Paul Post author

      Good question. The argument being made here is the obvious uses of fingerprinting versus the obvious uses of DNA testing as well as what consists of an unreasonable search or seizure. The argument of the state in this case is that fingerprinting is used for identification purposes only and that DNA testing serves the same purpose. This is very obviously not true in this case since it was clearly used to investigate King for other crimes, thus his arrest for rape.

      I would also add that fingerprinting is completely non-invasive whereas DNA testing is minimally invasive. They are, after all, sticking a foreign body inside of you. Could they cut off some of your hair without a warrant? Could they get a fecal sample without a warrant? Could they draw blood without a warrant?

      1. Steven Scott

        As far as I know, nobody has my fingerprints on record anywhere. From what I can tell, they only fingerprint people when they are accused of a crime (except for people who want security clearance but that is a separate matter). If I were taken into custody and my prints matched the prints of some murder weapon downstate, I’d believe that I would be investigated. Trying to differentiate the two methods in this matter I think is a weak semantics argument. Either both should be illegal, or both should be legal.

        Also, it is splitting hairs about which is more invasive. Them covering your fingers in ink, or having them stick a q-tip in your mouth for 2 seconds. I’d rather not spend 2 minutes scrubbing black ink from under my fingernails.

        1. Jean-Paul Post author

          Fingerprints are used for identification WITHIN the system, not without. That is what the state was arguing that the DNA swab was going to be used for. From what I read, it was their entire argument. That was blatantly untrue in this case. From what was actually argued, it was the wrong decision.

          I don’t think it’s splitting hairs. Somewhere there is a line. Fingerprints are an inconvenience of having black ink on your fingers but nothing is being taken from you. No matter how insignificant, a DNA swab is taking live cells from your body. That seems like a good line not to cross to me.

          1. Steven Scott

            So now my argument should be constrained to what the state argued?

            Are you against the state upgrading how they do identification within their system to one that is more digital and easier to verify (and not to mention more accurate)? Or are you against the ‘ulterior motives’ of the state in the case even though fingerprinting has always been used to catch criminals, since almost the moment of its conception in modern times?

            I think that line is where the hairs are split. A swab is taking very few living cells from your body that you doesn’t need to preserve your health and the loss of which is inconsequential. It doesn’t take much time, or inconvenience anybody. Arguing that this is the start of a slippery slope is as silly to me as saying that improving background checks on firearm purchases will lead to Muslim-Nazi’s taking our guns so they can turn our country into a communist collective.

          2. Jean-Paul Post author

            If we are arguing the merits of the case, yes, you absolutely have to constrain your argument to what the state argued. That’s how the justice system works. Outside of the merits of the case, you’re free to argue whatever you want but it’s important to distinguish between the two.

            Inside the merits of the case, I’m not arguing slippery slope, I’m arguing line in the sand. There are things the Fourth Amendment protects against and there are things it doesn’t protect against. The Fourth Amendment should protect against EVERY type of search or seizure except the ones defined by the court. The burden of proof for the court to add another allowable search or seizure should be very high. In this case, they do not come close to meeting that burden. Fingerprinting works just fine for identification and collecting DNA is unnecessary and should be unconstitutional.

  1. Steven Scott

    I’ve always been arguing the merits of the idea, and could care less about Mr King in the great state of Maryland.

    As far as fingerprinting ‘working just fine’ like you and Antonin Scalia believe, there are many cases of errors in fingerprinting identification. In 1999, Byron Mitchell challeneged the accuracy of the findings of his fingerprints in a getaway vehicle. The FBI sent both his set of prints along with the evidence from the car to 39 different forensic labs. 9 of those came back and said that they didn’t match. Even though he was convicted anyway, that doesn’t strike me as very accurate.

    Oregon lawyer Brandon Mayfield spent 2 weeks behind bars because 3 FBI experts believed his prints were found on a bag used in a bombing in Madrid. He was released because investigators in Spain didn’t trust us so the eventually matched them instead to an Algerian man.

    Since there are no such thing as ‘partial’ DNA evidence and the results aren’t judged by an eye test; DNA testing is looking way more accurate to me as an identifier. Even if you don’t believe that DNA testing is all that accurate, double it up with fingerprinting and I think the only person you can be confused with is a literal clone.

    1. Jean-Paul Post author

      Ok, we are talking about two completely different things. You’re talking about expanding the investigative powers of police which is completely not what this case is about. This case is about being able to positively identify individuals WITHIN the penal system.

      But let’s get to your points. First off, in the Brandon Mayfield case, which I’ve actually heard of, the FBI lied. They could just have easily lied about DNA evidence. You can also thank the Patriot Act, another egregious erosion of individual rights, for them being able to hold him for two weeks. So it’s not exactly a great example.

      Second, the Bryon Mitchell case was a mistake of the court, not a mistake of fingerprinting. The court should have very obviously thrown out the case. Alas, our justice system is human.

      Third, there is such thing as “partial” DNA evidence and it’s being used to convict people in quite a few states now. This is wrong as well.

      Last, all of the cases that you will find about bad fingerprint identification are about partial fingerprints found at crime scenes. And we should be very skeptical of being able to convict an individual with only a partial print as evidence. That is not a good reason to collect DNA evidence from an individual just because he is arrested, though.

  2. Steven Scott

    If that isn’t what this case is about, then what is it about? I’m still confused to that…

    The reason Brandon Mayfield was on the FBI’s to do list was because he prints were similar enough for them to justify investigating him in the first place. Irregardless of which laws or Patriot Acts they abused after the fact; I wonder how often the human element behind fingerprint analysis ’rounds up’ to help target somebody?

    In Bryon Mitchell, the mistake of the court was to allow faulty fingerprinting. Also, the fact that there wasn’t an overwhelming consensus one way or another points to errors inherent in fingerprinting.

    You are right about the partial DNA thing and I don’t know how I feel about that. You are also correct and we should be skeptical of fingerprints if they are the lone evidence of a crime. It is a shame that we are not. It still doesn’t stop law enforcement agencies from collecting it to help investigate crimes; along with your height, weight, race, D.O.B., distinguishing marks, and other information when you are booked into holding cell. You believe that the government shouldn’t take a few cells as part of that booking process and that the 4th amendment should protect against it. I believe that as somebody being booked for a violent offense such as King, it is reasonable to check his DNA, and that the cells are so few and taken in such a manner to be inconsequential. I’m with the majority on this case, and you are with Scalia. I’m alright with that I guess.

    1. Jean-Paul Post author

      SCOTUSblog is the place to go when you don’t understand a case. Here’s their recap: http://www.scotusblog.com/2013/06/opinion-recap-solving-cold-cases-made-easier/. Of especial interest:

      It has been quite commonly accepted that the Constitution does allow the police to take a DNA sample from everyone who has been actually convicted of a crime, but the Court until this new ruling had never extended that permission to a person taken into custody by police on suspicion of a new, unrelated crime.

      Do you not think that we should also be skeptical of DNA evidence if it’s the only thing linking a person to a crime? King was convicted and sent to prison for life on DNA evidence alone.

      1. Steven Scott

        I’m less skeptical of it than I am of fingerprinting (or of the idea that the prosecution of his case was “Here is the DNA matching the defendant’s DNA found at the scene of the crime. The state rests.”)

        I’ll have to answer your question with a question. Do you think we should throw out old convictions and free people who have been in jail purely on the strength of new found DNA evidence?

        1. Jean-Paul Post author

          Why are you less skeptical? Could it be because you know more about fingerprinting than you do about DNA scanning?

          And to answer your question, absolutely! The burden of proof of guilt is much greater than the burden of proof of innocence.

  3. Steven Scott

    Actually, it is quite the opposite. I feel like I know more about DNA fingerprinting, with more lab results and challenges to it both in and out of court, than I do about fingerprinting. Even if the FBI’s claims of 1 in a billion error rate are BS (they are)…even it’s critics show it has a better than 77% accuracy rating which happened in Byron Mitchell’s case.

    In 2006, Illinois did a search of their DNA database and found that 903 of their 220,000 records on file matched somebody else with the 9 of the 12 loci that make up a DNA ‘fingerprint’. Why, that’s only 99.6% unique! Totally unacceptable.

    I’m uncomfortable with proving somebody’s innocence or guilt with just one piece of evidence even when that evidence is DNA. Even DNA evidence can be wrong . A new trial with a load of evidence being question or shot down with DNA evidence being added to it with a jury determining if the burden of proof is met seems more prudent.

    1. Jean-Paul Post author

      You can’t have a new trial. Double jeopardy.

      The burden of proof for the state to submit evidence is ‘beyond a reasonable doubt’. Having a fully matched fingerprint would certainly meet that burden at 99.6% positive.

  4. Steven Scott

    Appeals are kind of like new trials. I thought double jeopardy only exists when you are found innocent?

    You already admitted that it is really rare to have a fully formed fingerprint, and I think the human element present in fingerprinting forensics kind of makes 99.6% hard to fathom.

    1. Jean-Paul Post author

      An Appeal is an attempt by the losing party to correct errors made in the original trial. Only evidence against the claimed errors can be presented. It is really nothing like a new trial.
      There are two ways to overturn a verdict, with prejudice and without prejudice. With prejudice, double jeopardy would apply. Without prejudice, the state does have the ability to retry the case if they so choose. I am unclear on what qualifies as without prejudice. I would assume that it has to do with if the judge feels that the State’s case relied heavily on the evidence that was overturned.

  5. Steven Scott

    The former evidence, that which was applied at the last trial, would still apply. So it’s kind of like a shorthand for an new trial only with new evidence without a trial. Save money and hassle I guess. Actually, I think you might be backwards on the with/without prejudice thing. I think if it was something like the last judge doing something improper with the jury or something, you get a new trial. If the evidence they got you on was bogus, you get ‘with prejudice’.

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