California DNA Collection Law Struck Down

wiedzmin writes with an article in Wired about DNA collection from criminals in California. From the article: "A California appeals court is striking down a voter-approved measure requiring every adult arrested on a felony charge to submit a DNA sample. The First District Court of Appeal in San Francisco said Proposition 69 amounted to unconstitutional, warrantless searches of arrestees. More than 1.6 million samples have been taken following the law's 2009 implementation. Only about a half of those arrested in California are convicted." Note that the State can still appeal the ruling; according to the article, the Attorney General's office has made no comment as to whether they will do so.

Comments

Should have been obvious all along

[mr1911]

Arrest != Conviction

The appeals court made the correct ruling. Now they just need to order all of the samples destroyed.

Re:Should have been obvious all along

[Intropy]

I was about to say that it doesn't really seem to be warrantless search so much as part of a sentence. And then I saw your comment, checked TFA, and realized it said "arrested" not "convicted." Yeah, completely obvious ruling. I guess my brain wanted to assume that the people passed something sensible rather than something moronic. I should know better by now.

Re:Should have been obvious all along

[trunicated]

The problem is Mr. and Mrs. John Q. Voter can't tell the difference between "accused" and "convicted".

Re:Should have been obvious all along

[Anonymous Coward]

Seriously, if you already have a warrant out for your arrest???? YOU ARE GOING TO BE SEARCHED ANYWAY!!!!! Use your heads people.

Re:Should have been obvious all along

[DeadCatX2]

If the police arrest you, they still need a warrant to search your home.

Re:Should have been obvious all along

[MozeeToby]

Not everyone that gets arrested is arrested for an outstanding warrant. You can be arrested for 'Obstructing Justice' for taking a video of police beating an unarmed man as an example. Whether the courts will see it that way or not is another argument, but a police officer can essentially arrest you for anything they want, whenever they want. Unlawful arrest charges against cops are virtually unheard of.

Re:Should have been obvious all along

[msauve]

How does this differ from collecting fingerprints at arrest? Because they draw blood (I'm assuming that's what they do)? How about if they brush their hair, and keep some follicles?

At least in my state, fingerprints are collected upon arrest, but are supposed to be destroyed if there is no conviction.

Re:Should have been obvious all along

[magarity]

Arrest != Conviction

No but you usually have to at least be under suspicion to get arrested. Keep in mind this was a ballot initiative - the people of California voted this on themselves. Meanwhile the people in Texas tried to curb TSA's subjecting everyone for suspicion of trying to take a plane ride and they were slapped down by the feds.

Re:Should have been obvious all along

[interkin3tic]

Arrest != Conviction

Law enforcement and legislators haven't been able to see the distinction for a long time. It's a wonder we still have courts.

Re:Should have been obvious all along

[Anonymous Coward]

you understand you can be arrested on a felony charge with out "a warrant out for your arrest???? " don't you?

'cause i am thinking you don't.

i'm also guessing you are from California.

and you vote.

Re:Should have been obvious all along

[elrous0]

Pretty big difference between being searched and having your DNA profile scanned and put into a database indefinitely (where it can functionally stay indefinitely whether you're convicted, never prosecuted, or even if you've been found innocent).

Re:Should have been obvious all along

[Zebraheaded]

...and the problem with having your DNA in a database is? Well, aside from the "if you ever do commit a crim you'll be easier to catch" aspect.

Re:Should have been obvious all along

[Synerg1y]

I somehow doubt they get completely removed to never be accessed again. Just like if your acquired the case paperwork is never thrown out and your legal record now shows an acquittal (accessible to legal but not public).

Re:Should have been obvious all along

[Wansu]

The problem is Mr. and Mrs. John Q. Voter can't tell the difference between "accused" and "convicted".

Many of them don't care about the difference between accused and convicted.

Re:Should have been obvious all along

[Anonymous Coward]

Now they just need to order all of the samples destroyed.

They can not order them destroyed because they are likely out of the hands of the state at this point and in the fed's hands. A state court can not order the feds to do squat. But any person ever charged with a crime based on evidence gained from this DNA database has a 4A claim to bounce the evidence (exclusionary rule)

Re:Should have been obvious all along

[AK Marc]

They wouldn't have been arrested if they weren't guilty...

Re:Should have been obvious all along

[terraformer]

Now they just need to order all of the samples destroyed.

They can not order them destroyed because they are likely out of the hands of the state at this point and in the fed's hands. A state court can not order the feds to do squat. But any person ever charged with a crime based on evidence gained from this DNA database has a 4A claim to bounce the evidence (exclusionary rule)

Re:Should have been obvious all along

[BJ_Covert_Action]

With my genetic code, anyone could grow an exact replica of my genitals, and those are my privates by name and definition, damn it!

Re:Should have been obvious all along

[AK Marc]

When they have 99.9999% accuracy, there's a near-100% chance of identifying an innocent person from a database with the number of samples as they currently have. If they then gave that the weight of an incorrect identification from an eye witness, then there wouldn't be a problem. But DNA evidence alone can convict because of CSI. So having the database will increase, not decrease, the number of wrongly convicted people.

Re:Should have been obvious all along

[MozeeToby]

You answered your own question:

but are supposed to be destroyed if there is no conviction.

That is not the case for this system, the DNA is kept on file for at least 2 years, can be kept longer if the police request it, and there are no penalties if the lab 'accidentally' forgets to remove it from the DB after the 2 years are up.

Re:Should have been obvious all along

[PitaBred]

Because your genes can tell a LOT more about you than just your fingerprints. DNA is more than identification.

Re:Should have been obvious all along

[intellitech]

The same thing should honestly be applied to fingerprinting and mug shots.

Law Enforcement, worldwide, has it way too easy.

Re:Should have been obvious all along

[Anonymous Coward]

The problem is Mr. and Mrs. John Q. Voter can't tell the difference between "accused" and "convicted".

The problem also lies with the fact that Mr. and Mrs. John Q. Voter can't tell the difference between "man" and "person" or "American citizen", "US citizen" or "state citizen".

Re:Should have been obvious all along

[Anonymous Coward]

lol

Troll? I smell the tinfoilers. Shame they went for you.

Re:Should have been obvious all along

[Kjella]

or even if you've been found innocent

Nobody is found innocent, only not guilty. You are presumed innocent on the possibility - the reasonable doubt - that you are indeed innocent, not the certainty. That is why so many find the taint of the accusation hangs over them, on the other hand it'd be pretty insulting to the victims if they were essentially judged to be liars and frauds when the evidence isn't strong enough for a conviction. We do know after all that the system lets many guilty men walk free by design.

Re:Should have been obvious all along

[Anonymous Coward]

...like in this case:

"8 months ago an 18-year old student named Jeremy Marks was sentenced to jail for felony crimes he allegedly committed while videotaping a Los Angeles Unified School District police officer beating up a 15-year old student for smoking'

http://blogs.laweekly.com/informer/2011/04/jeremy_marks_attempted_lynchin_1.php

Re:Should have been obvious all along

[Hatta]

The appeals court made the correct ruling

Don't worry, the Supreme Court will fix all that.

Re:Should have been obvious all along

[icebike]

Police actually don't need a warrant to search someone upon arrest. Nor do you have the right to refuse a search upon arrest.
You can be searched for weapons, drugs, stolen property, etc without a warrant whenever the arrest takes place without a warrant.

It law doesn't extend to bodily fluids, but the cops wanted to push the envelope, and this law allowed them to do so, until now.

Once convicted and sentenced to any correctional institution, all bets are off. The rules of the DOC are incorporated in every sentence of incarceration.

Re:Should have been obvious all along

[icebike]

This had nothing to do with homes or cars. It had to do with mouth swabs.

Clearly if you are arrested you are going to be searched (cloths, body and cavities) regardless of whether there is a warrant or not.

Re:Should have been obvious all along

[Hatta]

What is the justification for searching someone who has been convicted of no crime? Does that justification apply to DNA?

Search incident to arrest is justified by the need to protect the arresting officer from danger, as well as preventing destruction of evidence. Do these justifications apply to DNA? No, they clearly do not. DNA cannot be used as a weapon against a police officer, and the suspect's DNA cannot be destroyed.

So it's pretty clear that the existing justifications for searches incident to arrest do not apply to DNA.

Re:Should have been obvious all along

[DeadCatX2]

I don't think they can check your body cavities if you were merely arrested. I was under the impression that you had to be convicted, but IANAL.

It's one thing to check all items on your person. That sort of stuff is kinda "plain view"-ish.

However, collecting and permanently storing your DNA in a database is an invasive search that should require a warrant if you were merely arrested.

Re:Should have been obvious all along

[icebike]

Pretty big difference between being searched and having your DNA profile scanned and put into a database indefinitely (where it can functionally stay indefinitely whether you're convicted, never prosecuted, or even if you've been found innocent).

Playing the devils advocate here...:

Its not that much different than having your finger prints taken upon arrest when you think of it. And all such fingerprints go to the data base whether you are convicted or not.

If there is a difference, its largely one of perception.

Re:Should have been obvious all along

[Nimey]

Sheesh. Next thing you'll be calling for some judicial activism, Citizen.

Re:Should have been obvious all along

[icebike]

I think your math is a bit off.
First you need several dozen more 9s after the decimal.
Second you are conflating percentage of accuracy with the number of permutations of DNA available in the population.

Re:Should have been obvious all along

[subanark]

No they aren't. Your privates are just what is on your body. It's like claiming that you own your identical twin brother's body parts.

Re:Should have been obvious all along

[DeadCatX2]

I did some googling, and it looks like Bell v Wolfish is the relevant case law. It appears that pre-trial detainees may be cavity searched, but I believe the pre-trial bit implies that they have been charged with violating some law, not merely arrested.

Re:Should have been obvious all along

[icebike]

I assure you you will get a cavity search upon being sent to jail after an arrest.

How about your finger prints, Do you think they need a warrant for those too?

Re:Should have been obvious all along

[Anonymous Coward]

Let's get this err straight, the state of California was going to Proposition 69 those arrested for a DNA sample and they couldn't refuse? Yeah, it should be obvious, that it was rape! What did they do if the victims complained? Compare it to bad Texas weather like Clayton Williams did?

Re:Should have been obvious all along

[ubrgeek]

There's something ironically funny about using "body cavities" and "IANAL" in the same sentence.

Re:Should have been obvious all along

[stephanruby]

In California, we get fingerprinted at the DMV (granted, it's only a thumbprint thought).

Re:Should have been obvious all along

[PCM2]

Unlawful arrest charges against cops are virtually unheard of.

Just because you don't hear about them doesn't mean they don't happen. The United States Code provides for civil -- not criminal -- redress for wrongful arrest. Civil suits are almost always settled out of court, and one of the provisions of the settlement is typically that the claimant doesn't go blabbing about the case.

Re:Should have been obvious all along

[icebike]

But again, charging does not necessarily require a warrant.

Re:Should have been obvious all along

[PCM2]

If you want to go the full distance, it's possible that someone with a prior felony conviction might actually be exonerated on a new charge, based on the DNA sample on file with the state.

I think a lot of the fear in this case is a "slippery slope" type of argument -- as in, once the government has all of this information, what do they intend to do with it? DNA sequencing provides a lot more information than simple identification. What if the government decides some day that people with certain genetic markers are predisposed to commit certain types of crimes (say, crimes of a sexual nature) and that someone meeting those terms and who has a felony conviction warrants special surveillance? Is it likely? Maybe not. Is it impossible? Absolutely not.

Re:Should have been obvious all along

[DeadCatX2]

I don't know about that. Judging from this web site which purports to be "law enforcement training" written by Emory A. Plitt, Jr, Associate Judge of the Circuit Court in Bel Air, Maryland, you're wrong. Now, unless you're a lawyer or a judge with credentials equal to or greater than the Honorable Emory A. Plitt, Jr. then I think you lose this one.

Can an officer search a person at the time of arrest?

The Fourth Amendment allows a number of exemptions from the general rule that a warrant is needed to search. One of these exemptions is a search incident to an arrest. If the arrest is lawful, the search of the person arrested is lawful. There are two reasons for a search incident to an arrest: (1) to find and remove any objects or property which may be used as a weapon against the officer or others and (2) to seize any contraband or evidence of a crime which could be destroyed, lost, stolen, etc. if not immediately seized. These searches are considered to be reasonable under the Fourth Amendment. The search may occur immediately at the scene of the arrest and/or upon arrival at the station.

I'm pretty sure that saving a DNA swab does not fit into reasons 1 or 2, above.

Are there any general rules which apply to all strip and body cavity searches of arrested persons?

Like many situations that officers must deal with, there is no one Supreme Court case or other appellate court case or cases which set forth all the rules for you in one place. As a result of the many lawsuits over these kinds of searches, there are some general rules which apply to all such searches: ...

6) Strip searches should never be done randomly or at the whim of an officer;

7) The mere fact of an arrest does not allow a strip search or body cavity search just because the person was arrested;

Regarding fingerprinting, while the primary purpose of fingerprinting is identification, DNA is a whole different beast. For instance, DNA from a relative can be used to implicate someone else for a crime, and the use of DNA collected one person against someone who was never arrested is pretty clearly an egregious violation of privacy. Remember, it's not just the arrested person's privacy that you're violating, it's their entire family.

Re:Should have been obvious all along

[MarkvW]

Arrest != Conviction

While that statement is true, it has NOTHING to do with the discussion. The correct analysis centers on this:

Probable Cause to Arrest != Probable Cause to Take DNA

That's the proper issue.

Re:Should have been obvious all along

[AK Marc]

You are correct in that I simplified the statistics by incorrectly assuming random distribution of DNA markers. However, my statement is correct for the number of 9s I had listed, even if it would also have been true with more 9s after the decimal.

Re:Should have been obvious all along

[magarity]

The legislature has nothing to do with it - this is over a ballot initiative. Basically the citizens of California ordered their police to do this to them upon arrest.

Re:Should have been obvious all along

[mr1911]

Yeah, but they need to be able to state why they arrest you. If they arrest you for no better reason than to search you, whatever they found in that search is inadmissible as proof against you.

At least that is the way it is supposed to be. It comes down to how slimy the prosecution is and/or how good your attorney is.

Re:Should have been obvious all along

[Anonymous Coward]

It was a ballot initiative, but I wonder how many voters knew what they were voting on.

I skimmed the beginning of the initiative just now and you have to get to the third page of it -- section 296(a)(2) -- to see that it applies to arrests. The "Findings and Declarations of Purpose" section at the beginning keeps talking about how it's to protect the innocent. Once you actually get to the body of the proposition, it's really easy to see "section 296" referenced earlier in the text, skip over to page 137, see that 296(a)(1) applies to convictions, and there's a whole ton of stuff crossed out below that, and completely miss the second column that says it applies to arrests as well. (I knew what to look for and I missed it the first time!) There's no indentation or other visible structure so it takes a bit of work just to know what section you're in.

The whole thing is over 15,000 words, so reading at 250 words per minute, it would take an average person over an hour just to read it entirely. There were 15 other propositions on the ballot at the time, and not all of them were as long as Proposition 69, but I really doubt the average voter spent even a few hours reading these.

Re:Should have been obvious all along

[mr1911]

No but you usually have to at least be under suspicion to get arrested.

In theory yes. In reality, you will find this is abused more than you would like to believe.

Meanwhile the people in Texas tried to curb TSA's subjecting everyone for suspicion of trying to take a plane ride and they were slapped down by the feds.

That is a big part of the problem.

Keep in mind this was a ballot initiative - the people of California voted this on themselves.

That is the rest of the problem.

Re:Should have been obvious all along

[Martin Blank]

A .0001% chance of a false negative is not the same as the same chance of a false positive.

Re:Should have been obvious all along

[icebike]

Sorry, but every thing you posted agrees with my statements. Even the parts you highlighted about general searching. So it looks like YOU lose this one.

As for strip searching, it happens every single day in every single county lockup. You get your jump suit and you change into it under the watchful eye of a deputy. Its not random, its policy. It might be delayed if your alledged crime is such that you will make bail.

I think the good professor needs to get out in the real world.

Re:Should have been obvious all along

[AK Marc]

It's a sad state of affairs when reflecting the beliefs of the majority is labeled a "troll."

Re:Should have been obvious all along

[DeadCatX2]

You allege that you can body cavity search someone for merely being arrested.

7) The mere fact of an arrest does not allow a strip search or body cavity search just because the person was arrested;

Looks to be pretty much the exact opposite of what you claim.

Also, I fail to see how a DNA search satisfies (1) to find and remove any objects or property which may be used as a weapon against the officer or others and (2) to seize any contraband or evidence of a crime which could be destroyed, lost, stolen, etc. if not immediately seized. I'm pretty sure DNA is not a weapon, nor is it contraband or evidence of a crime.

And you still entirely avoided the fact that while fingerprinting can identify one person, DNA can identify relatives of an entire family.

But I guess there's no arguing with authoritarians who want to sacrifice their civil liberties.

Re:Should have been obvious all along

[icebike]

True, you are usually told immediately what you are being charged with, and then you are cuffed, and searched, and if they find illegal substances in your pockets MORE charges are added on.

And that's just the preliminary search. After the ride in the squad car it happens all over again.

I'm sure there are lesser standards for simple infractions (drunk and disorderly types of stuff) as opposed to crimes like assault, burglary, etc. But if they take you in, they have to search you.

Otis doesn't get to wander into the Mayberry jail and lock himself in any more.

Re:Should have been obvious all along

[failedlogic]

Well, at least the cop wasn't allegedly beating up the 15yr old.

Re:Should have been obvious all along

[Anonymous Coward]

DNA tests don't contain all that you think they do. The best examplie I can give for genetic testing is to think of a library with billions of 10,000-page books, each one is a person's genome.
Now, you get another book in, with no title, and want to see if it's a duplicate of any other books. You have a robot take tiny (i.e. 5-letter) snippets of the book and look at all the other books in the library for snippets that match.
That is, let's say this book has the letters "he ga" at the bottom of page 542, the robot wood look in every book for "he ga" at the bottom of 542. If it got a match, then there is a chance that they are the same book, but it is not conclusive. One book could say "Then he gave her the ring" while the other says "The gall bladder is removed." Both have "he ga" in them. So maybe you have a 1:10,000 chance that a book will match the search. So you take another snippet, say "ads t" on the top of page 5,303. Again, this snippet has a 1:10,000 chance of matching. Combining the two, you have a 1:100,000,000 chance of the two books being the same. With billions of books though, that's not enough. But if you used another snippet, say "y unt" in the middle of page 8,318, then you are pretty sure you've narrowed it down to one specific match.
But even now that you've found your match, you have no idea about the content of this book, except that it has the following bits: "he ga" at the bottom of 542, "ads t" on the top of page 5,303, "y unt" in the middle of page 8,318. You don't even know a single word of the book. Likewise, a DNA test picks out small sections and sees if they happen at the same place, but tell nothing about the person's genome.

Re:Should have been obvious all along

[AK Marc]

I agree. I used "accuracy" which didn't define which I was talking about. Why? Because that's what most people use. As such, I never spoke incorrectly, even if I did speak inaccurately. People do not separate out false negatives and false positives, they lump them together and perform invalid statistical analysis on them, so I erred on the side of the vernacular, as that's how most people see it. And yes, they do post "accuracy" numbers that are essentially the average of the false positive and false negative chances, and just call that the chance of a "false" reading.

Re:Should have been obvious all along

[TaoPhoenix]

Far from "obvious" given our recent rash of Paid Rulings.

No, I will not wear tinfoil.

Just that for the moment it's too early for this one. Give it 2 years.

Re:Should have been obvious all along

[DJRumpy]

It is my understanding that the search of your person is basically a requirement for an officers safety and no court would undo that. An officer must ask to search your home, or your car and you can refuse them consent. They can and sometimes do proceed without consent, which will often make any evidence they find inadmissible unless they can prove they had due cause for the search (for instance you are drunk driving and they search your vehicle for open containers, or they smell it on your breath through the window for example.

Re:Should have been obvious all along

[icebike]

You allege that you can body cavity search someone for merely being arrested.

7) The mere fact of an arrest does not allow a strip search or body cavity search just because the person was arrested;

Tell you what... You and the good professor go out and take a swing at a cop someplace and see who comes out being right. Being booked into county jail you will be strip searched. Why? because they can't have some gang banger's homeboys getting tossed in jail for spitting on a cop and thereby smuggling in weapons.

Here's your jump suit. Step over there and strip down and put it on. Deputy Jones will watch you. What? A legal degree? Tell it to the judge.

Re:Should have been obvious all along

[virtualXTC]

Remember, it's not just the arrested person's privacy that you're violating, it's their entire family.

This isn't exactly true, and is interesting to note; forensic DNA samples just cut up the DNA an measure it's length / terminal sequence. It does not reveal whole genes and thus is unlikely to reveal any genetic disorders. However, after reviewing the law, cheek swabs are to be kept indefinitely, which means the state could potentially get a full sequence at a later data if they were to change the protocol on how sequencing was done.

Re:Should have been obvious all along

[virtualXTC]

how is this different than a fingerprint?

Re:Should have been obvious all along

[drsmithy]

The problem is Mr. and Mrs. John Q. Voter can't tell the difference between "accused" and "convicted".

Heck, many of them struggle with the difference between "accused" and "arrested"...

Re:Should have been obvious all along

[suutar]

These are also supposed to be removed from the statewide databank when they're notified that the subject is no longer a suspect. But the time limit for notification is 2 years. And if they happen to not actually remove it, and it gets matched in a search, the result is not invalidated. And of course local law enforcement can keep their own database.
(Actually, the prescribed method is cheek swabs)

Re:Should have been obvious all along

[icebike]

Exactly right.

The constitution does not protect you from search and seizure, it protects you from UNREASONABLE search and seizure.

Unreasonable is a pretty slippery word. Customs can seize your cell phone when you enter the US without even leveling a charge or having any real suspicion. Simply because courts have found it is "reasonable" that the United States may defend its borders and control the flow of goods into the country.

Re:Should have been obvious all along

[DragonWriter]

While that statement is true, it has NOTHING to do with the discussion.

Well, it does, insofar as TFS asserts that this has to do with DNA collection from "criminals" rather than from arrested suspects.

Re:Should have been obvious all along

[virtualXTC]

The problem with your statement is "DNA Fingerprinting" != "DNA sequencing"

Re:Should have been obvious all along

[drinkypoo]

Good enough, that's the fingerprint you give to get a gun, too.

Re:Should have been obvious all along

[mattack2]

I don't agree that it's obvious, and I hope they appeal the ruling.

I had to sign up for selective service (draft) and I didn't want to. If there were DNA & fingerprint records for more people, more criminals would be caught.

Re:Should have been obvious all along

[DM9290]

How does this differ from collecting fingerprints at arrest?

well DNA not only identifies you, it identifies your siblings and your entire family?

Re:Should have been obvious all along

[DeadCatX2]

I never said anything about whole genes. So they cut up DNA and measure it. If they cut up my brother's DNA, they will probably be able to tell that he's related to me, even without whole gene sequencing. Therefore, they have access to my DNA profile despite my never being arrested, solely because they arrested my brother.

And it still dances around the fact that Mr. Thank-you-sir-may-I-have-another above believes that because the police can stick their finger in your ass when go to jail, they can swab your DNA. However, the point of cavity searches is to catch contraband and protect the jail/prison from weapons. I'm pretty sure DNA is neither contraband nor a weapon, and therefore the police have no reasonable grounds for collecting it.

It also ignores the fact that state's can grant extra rights to their citizens above and beyond what federal law requires.

Re:Should have been obvious all along

[Anonymous Coward]

Cops simply can't ever do anything against the law. It's impossible. If they were to strip search them, then that means it's legal! We should violate everyone to the fullest extent possible in order to be 100% safe.

Re:Should have been obvious all along

[msauve]

"DNA not only identifies you, it identifies your siblings and your entire family?"

Which, if your family is native to the US, is already a matter of public record, so what's your point?

Furthermore, I assume that they're actually cataloging the DNA markers which allow statistically unique identification, not sequencing the entire genome. Those markers have been chosen so you are unique from your parents and siblings.

Re:Should have been obvious all along

[interkin3tic]

... ah, good point, the one group of people more incompetent at lawmaking than our elected reps are, of course, ourselves directly.

One of these days, I'm going to start a referendum to prevent any further referendums.

Re:Should have been obvious all along

[Anonymous Coward]

Are you blaming the law enforcement and legislators for this? Because this proposition was passed by the voters.

Re:Should have been obvious all along

[fyngyrz]

Police actually don't need a warrant to search someone upon arrest. Nor do you have the right to refuse a search upon arrest.

Actually, police DO need a warrant to search a US citizen's person, home, papers or effects. The 4th amendment is quite specific:

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.

Also, the 14th amendment extends this restraint from the federal to the state governments. That covers every government agency from the local police to the forest service to the secret service.

So, no unreasonable search; and a reasonable search consists of probable cause, supported by oath or affirmation, which causes issuance of the search warrant, which then authorizes a search -- but only for the items named in the warrant. No "fishing expeditions."

The whole "police can search" thing is the result of congressional and judicial malfeasance and really, really bad education and apathy on the part of the citizens; the government was never authorized to perform these kinds of searches; it would take a constitutional amendment to create a valid authorization, because as is, the act is forbidden to them.

Remember: The constitution is the authorizing document for the US government. That's the basis for legitimate government power. There is no other basis, and all other power exercised by the government is usurped and unauthorized. While powers unspoken may be found in general terms in various parts of the constitution, there are certain things -- searches among them -- that are absolutely forbidden to them and so not up for any kind of argument at all. This is not a monarchy; it is a constitutional republic. The second you say "oh, they don't have to pay attention to that old piece of paper", you've just accepted a new form of government, one with absolutely unlimited power. Unfortunately, a lot of people are just that stupid.

Lastly, if the government needs a new (or currently forbidden) power -- which searching without a warrant certainly is -- there is a mechanism provided for them to ask for it; it's is article five, amendment. Outside of that, there is absolutely no way for them to legitimately obtain the power to search without issuance of warrant, subsequent to probable cause, supported by oath or affirmation.

Unauthorized power: government out of control; citizens bewildered by government deception and official malfeasance.

Re:Should have been obvious all along

[fyngyrz]

Unreasonable is a pretty slippery word

Exactly wrong. Unreasonable isn't slippery at all, at least, not in the case of search. It's defined right in the 4th amendment, quite specifically. Go read it.

Also, the courts have no authority to abrogate the meaning of the 4th amendment. Article three awards the power to judge guilty or not; it does not award the power to alter. That is limited to article five. This is simply the government acting out of the bounds of its authorization, exerting, in this case, power that was explicitly forbidden to it.

Re:Should have been obvious all along

[icebike]

So an officer can't arrest you and search you without a warrant is that what you are claiming?

Look, Son, cut and paste jobs just don't cut it in an adult world.

To complete your education, go out right now, find a cop, and punch him in the face.
I guarantee you will be arrested without a warrant, searched without a warrant, taken to jail, and searched again, without a warrant.

Did you miss that word Unreasonable in your little cut and past job?

Re:Should have been obvious all along

[fyngyrz]

The Fourth Amendment allows a number of exemptions from the general rule that a warrant is needed to search. One of these exemptions is a search incident to an arrest.

Let's start here. Show me where in the 4th amendment this "allowance" is made. Here it is, in its entirety:

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.

I've highlighted a critical section for your benefit.

So get back to me when you find it. I won't hold my breath.

Re:Should have been obvious all along

[fyngyrz]

What you're describing, however, is the unauthorized actions of a government agency out of control. Not the legal conditions from which a presumed authorization arises. We already know the cops are acting as defacto thugs; what needs to be established is the basis for their actions. Without a legal basis, they're no different than muggers with overwhelming power -- and should be treated similarly.

Re:Should have been obvious all along

[fyngyrz]

So an officer can't arrest you and search you without a warrant is that what you are claiming?

What I'm telling you is that a search without a warrant isn't an authorized power of the government, and when it is performed, the government is acting outside the bounds of the agreement that says it is allowed to exist. I'm not saying it doesn't happen -- I'm saying it's wrong when it happens.

Did you miss that word Unreasonable in your little cut and past job?

No. In fact, I pointed it out. 2nd para after the "little cut and paste job." But apparently, you did miss it. "Unreasonable" is fully defined for the case of government search right there in the 4th amendment. Read it. Then read it again. WTF do you think they're talking about when they define these requirements? When the government goes and gets an ice cream cone? No, they're talking about what makes the search reasonable. Now READ it and perhaps you'll finally grasp it,

Re:Should have been obvious all along

[hairyfeet]

Actually it ain't true in the county lockups in the south, as from what I've seen the cops here are so homophobic they ain't going anywhere near a man's junk and sure ain't gonna watch!

I know because i actually had to bail my ex bro in law out not once but twice out of two different jails and in BOTH cases I had to bite my damned tongue to keep from laughing because the bulge that boy had was so comically large it looked like something out of an Airplane! spoof. I swear he must have walked out of those jails with a good oz+ of weed right there in his gigantic bulge.

Re:Should have been obvious all along

[LibRT]

Aren't you a "Mr or Mrs John Q Voter"?!? If so, how come you have the powers to figure it out but assume the rest of the population doesn't? I see an awful lot of comments along these lines, ie, "I can figure these things out but the rest of the people can't, therefore we must apply laws such that the dumb population can be made to see things with my scintillating clarity." It's nonsense, all of it, and the height of arrogant presumption: you, in all likelihood, aren't any more "perceptive" or "insightful" than those who disagree with your viewpoints (and are therefore presumed to be idiots).

To the article: I'm not in favor of the government retaining this data or any other data from unconvicted people, but does this differ significantly from fingerprints (ie insisting that you surrender personally identifying biological traits)? Note I'm not arguing either should be stored indefinitely, or that taking fingerprints is acceptable (nor am I arguing it isn't). I'm just honestly not seeing the significant difference between the two (but am open to being informed).

Re:Should have been obvious all along

[Anonymous Coward]

Let me clarify that a bit, since most people either won't click or won't understand what that really says.

ALL searches without a warrant are inherently unreasonable. The 4th specifies what's required to get a warrant, and is very clear on those requirements.

The courts have virtually obliterated the constitutional right to be free from unreasonable (warrantless) searches. But the courts are very, very wrong on this subject.

Re:Should have been obvious all along

[DryGrian]

They don't draw any blood. They swab the inside of your cheek and mail it to Sacramento.

Re:Should have been obvious all along

[Calydor]

So in a country where anyone can own a firearm you want to stop the police from checking that someone they've just arrested isn't carrying one?

I think you'll find that removing this step of the arrest is going to lead to a lot of dead cops.

I'm not defending unreasonable searches in general, but a search for firearms, knives etc. during an arrest is only common sense and a necessity for the police to protect themselves.

Re:Should have been obvious all along

[BJ_Covert_Action]

Well, I was trying to be funny. But you know how that goes on /.

Re:Should have been obvious all along

[Anonymus]

No, I'm sorry, I disagree. Have you met the average person on the street? They can often be very nice, friendly, hardworking people, but most of them are so ignorant or stupid that I'm amazed when they are capable of forming sentences. Just being here debating an issue with coherent thoughts, even thinking about an issue for oneself beyond what a friend or pastor said to think, puts one leaps and bounds above "Mr or Mrs John Q Voter".

To the article: the difference is that a fingerprint doesn't really tell you anything about a person. I suspect it can be used to predict gender, and maybe age and race with some fancy algorithms. It's not a very big violation of privacy (in most people's opinion, not everyone obviously) because all it can really do is identify. With DNA, depending on how in-depth the data collected is, you almost know more about a person than they do. Admittedly, the DNA testing that modern police use isn't usually good enough to tell you much, and in fact are often not adequate even for identification.

But with vaguely written laws, it's usually not specified what the testing and data retention is restricted to. In the future, a full genome could be sequenced while someone is being booked at the station. It tells you hair color, eye color, predisposition to diseases, allergies. It suggests likely height, left- or right-handedness, inclinations towards violent behavior, certain personality types, and sexual orientation. You're also collecting a bit of information on all of their relatives (who can now be identified as such) and could trace lineage for centuries.

Re:Should have been obvious all along

[Cant use a slash wtf]

You're absolutely right. They might discover my viking heritage and that I'm genetically pre-disposed to heart disease.

This absolutely can not happen.

Re:Should have been obvious all along

[AmiMoJo]

Many of them don't care about the difference between accused and convicted.

Until it's them being accused.

Re:Should have been obvious all along

[RockDoctor]

Now they just need to order all of the samples destroyed.

The samples and any analytical results obtained from them.

Now, now, there are lawyers about. Nit-picking pedantry is necessary.

Re:Should have been obvious all along

[AmiMoJo]

As often as not DNA isn't identification. Much like fingerprinting it can work if you get a perfect sample and a flawless examination by an expert, but in the real world that rarely happens. Take the case of the only man ever charged over the Omagh bombing. The DNA evidence they found was weak so had to be "amplified" before a match could be made. His defence successfully argued that amplification makes the resulting match worthless. At best DNA can be considered an aid to law enforcement, but it is not proof of identity.

DNA allows police to be lazy and real criminals to escape prosecution. Say you try on a jacket in a shop but decide not to buy it, then someone else purchases it and goes on to commit a crime. The police can't be bothered to properly investigate because there is DNA that links the crime to you and the actual criminal. They haul you both in and the perpetrator argues that he was not at the scene and uses the fact that your DNA was found there or on the garment as a defence. Reasonable doubt is demonstrated, the police have by this time let the trail go cold and failed to properly gather other evidence anyway and the case collapses.

Poor forensics have causes several high profile cases to collapse in the past few years, all of which could have been avoided if the evidence was given the correct weighting in the first place.

Re:Should have been obvious all along

[LibRT]

You do realize that when someone else is disparaging the "average person" or the "average voter" they are including you in that group?

Good points about the DNA data - thanks for that - I somehow managed to misplace my thinking cap, yet again...I think it's over here under my tin foil lid...

Re:Should have been obvious all along

[Anonymous Coward]

What is the harm in them having a DNA sample of someone who is not convicted? At most it can be used to convict them in future cases, but that cannot be considered harmfull to anyone.

Re:Should have been obvious all along

[Bob the Super Hamste]

The reason for the search that police can do when arresting you is to ensure that you aren't carrying dangerous items that could endanger them like a weapon, or bomb. Stolen property is some what questionable since how would they know it is stolen but drugs very often fall under what the law considers reasonable suspension. Whether you agree or not is different, but even by the most liberal interpretation of reasonable most DNA sampling seems to fall afoul of the law. About the only time I think it might be acceptable is if someone was arrested for some major crime (rape, murder, or other violent offense) and a DNA sample was taken to rule them out or not. Even then it seems this can be easily abused unless the sample is immediately destroyed after being used to rule out a suspect or not.

Re:Should have been obvious all along

[Bob the Super Hamste]

Well to be honest they accused is usually already convicted in the court of public opinion by the time they go trial any way. So the rest is just a formality.

Re:Should have been obvious all along

[Bob the Super Hamste]

I didn't know some states required finger prints be submitted for purchasing a firearm, although if it is California it shouldn't surprise me. Don't let Minnesota know since they will probably add that to the requirements for purchasing Sudafed since the requirements for purchasing that are about the same as purchasing a long gun.

Re:Should have been obvious all along

[JimFive]

ALL searches without a warrant are inherently unreasonable.

That is your own interpretation. There is no where in the 4th that says a warrant is required for reasonability. What it does indicate is that a warrant is proof of reasonability.

Warrantless searches should have to meet a fairly high bar: Urgent and Imminent. They should also be reviewed by the court based on What the officer knew/saw at the time of the search (ideally, without the court knowing the result of the search). The fact that "Urgent and Imminent" has turned into "Probable Cause" and that there is no review of reasonableness is a travesty.
--
JimFive

Re:Should have been obvious all along

[Anonymous Coward]

http://en.wikipedia.org/wiki/Searches_incident_to_a_lawful_arrest

It a long recionized right of an officer to conduct a search of someone arrested and the area they (the arrestee) are in control of at the time of the arrest. This is not a goverment conspiracy, or the 'the man' putting you down, its about the safty of the officer and public. .

Re:Should have been obvious all along

[fyngyrz]

If I say I am enabling you to govern, then I say as a condition of this enabling, you SHALL NOT search without a warrant, and certain conditions must obtain for you to get one, where do you get off saying "oh, but I can search without a warrant if I *need* to"?????

Furthermore, if I say to you, but if you need a power you don't have, you can use this process here called amendment by ASKING THE PEOPLE if you can have it.... and then you DO NOT USE THAT PROCESS, but you still say "oh, but I can still search without a warrant if I *need* to"...

You know what that means? That means you are ignoring what you have been told. That means you have violated one of the conditions that enabled you to govern. That means you are using unauthorized power; that means the conditions under which you were permitted to govern are no longer in place.

Do you get it now?

Re:Should have been obvious all along

[fyngyrz]

So in a country where anyone can own a firearm you want to stop the police from checking that someone they've just arrested isn't carrying one?

I think you'll find that removing this step of the arrest is going to lead to a lot of dead cops.

What you're trying to do here is make an argument for the claim "well, I know you said SHALL NOT, but we need to"; that case is addressed by article five, and I am ALL FOR the idea that if the government needs a particular power, that they USE article five. I am NOT for the government just taking a power because they think they need it. This is because if they can take a power based on their estimation of need, regardless of what the constitution says, then there is NO POWER THEY CANNOT TAKE -- and in fact, we are seeing exactly that kind of behavior from the government; they make any law they like and CONTINUALLY violate the constitutional restrictions put on them as a condition of governance.

As far as I'm concerned, if the government wants to search someone, they need a warrant. That's because that's what the constitution says. There are no exceptions to the rule in the constitution, and therefore, there are no exceptions available to the government.

Further: No reasonable person has ever said that the constitution was a mechanism to make it easy to govern. In fact, if you read the relevant literature from the time, they were looking to restrict government as much as they possibly could.

Yet they *did* provide article five, amendment; so the door is not entirely closed. But they must use that door. Right now, they're coming in the window, and like anyone who enters through the window with intent to steal something not freely given, they should be stopped and punished.

I'm not defending unreasonable searches in general, but a search for firearms, knives etc. during an arrest is only common sense and a necessity for the police to protect themselves.

Fine. Get a warrant, make the arrest. Should take just a few minutes, especially today with faxes and printers and networks. "I have a warrant for your arrest. Here it is. Do you have any weapons? (subject answers yes, right here, or no) This warrant includes permission to search you for unrevealed weapons. I am now going to search you." Where's the problem?

Re:Should have been obvious all along

[magarity]

The whole thing is over 15,000 words, so reading at 250 words per minute, it would take an average person over an hour just to read it entirely. There were 15 other propositions on the ballot at the time, and not all of them were as long as Proposition 69, but I really doubt the average voter spent even a few hours reading these.

So they had to pass it to find out what was in it?

Re:Should have been obvious all along

[JimFive]

I got it before. You don't. There are 2 statements in the 4th amendment. Paraphrased, the first statement says that any search or seizure must be reasonable. The second statement requires that warrants must be specific. Nowhere in that amendment does it say that ALL searches require a warrant.

Consider what a warrant is: an order by an authority (usually a court or government) to permit an otherwise illegal action. Thus, if an action is legal then no warrant is necessary. If a search or seizure is reasonable then it is not illegal and does not require a warrant.
--
JimFive

Re:Should have been obvious all along

[fyngyrz]

It is unauthorized power. Get a warrant, make the arrest. Otherwise, the officer is doing it wrong, and they should be at risk from outraged citizens.

Re:Should have been obvious all along

[drinkypoo]

We now have a fingerprint and 10 day waiting period for the transfer of any and all firearms, and any fun firearms not registered in 2000 are prohibited to all but active duty police, or highly-federally-licensed firearms dealers.

Re:Should have been obvious all along

[Anonymous Coward]

Exactly so. It's not a 'search' since a person's DNA is not, in and of itself, evidence of a crime. It's to IDENTIFY a person just like fingerprints and mug shots. It's just better at it than either of the above.

Another insane ruling from one of the dumbest appeals courts in the country.

Re:Should have been obvious all along

[Anonymous Coward]

Because your genes can tell a LOT more about you than just your fingerprints. DNA is more than identification.

But nothing that would impact on criminality in a case or anything of that sort. Sure, you might find out Joe Blow is likely to develope male pattern baldness from his DNA but in what whacked-out universe do you think that the the police would even look at stuff like this? They ONLY use it for identification because it would be stupid and insane to do anything else with the samples. It's exactly like fingerprints in every reasonable respect.

By your argument if, for example, they found that certain genetic conditions had an observable effect on fingerprints or even your facial appearance, then the police would have to stop taking mug shots? That's insane but is exactly what you are saying.

DNA and no guilt?

[bdabautcb]

Should we collect DNA at traffic stops as well?

Re:DNA and no guilt?

[Martin Blank]

Police would love to be able to do this. I don't know if it would increase their danger, though, as people who know they have warrants out on them might be more likely to flee or lash out if they believe they'll be identified immediately upon a DNA scan.

This is about government power

[Anonymous Coward]

Guess which way Democrat-controlled California will go....

Re:This is about government power

[cobrausn]

Seems like Anonymous Coward is right - we're fucked.

Re:This is about government power

[Dishevel]

Nope.
The Republicans are just the opposite side of the same "Government Power" coin.
Republicans and Democrats do not differ in how much power they want the government to have. Only on who should benefit the most.
Big Businesses and Super Rich or Labor Unions and Lawyers.

Personally I do not trust either for shit.
People have to stand up and take responsibility for their own lives first and then remove themselves from the government teat.
Once we no longer need the government to provide for our finances we can take away their power over us.

Re:This is about government power

[Anonymous Coward]

Next election, you should all vote communist. You might get a freer government.

Re:This is about government power

[interkin3tic]

It's a common perception that California is extremely liberal. This is only the case if you focus on SF, Berkley, Hollywood, and ignore the rest of the state, or are so far right that you think Fox News is -actually- fair and balanced.

...of course, since you're implying democrats hate the right to privacy, I'm guessing you do...

Re:This is about government power

[Martin Blank]

I've said it many times before, and I'm sure I'll say it many times in the future: California is not a traditional Democrat state. This is a state that demands to keep the death penalty, that was the first to institute three strikes, and that was among the first to adopt mandatory minimums, IIRC. These often pass by significant majorities. Other states may be predictable Democrat bastions; betting on California to go a particular way is often a hazardous bet.

Re:This is about government power

[Kjella]

People have to stand up and take responsibility for their own lives first and then remove themselves from the government teat. Once we no longer need the government to provide for our finances we can take away their power over us.

YMMV, but I'd much rather deal with the government than the corporations. And if you mean like really go it on your own, well I just don't consider that very realistic. There's no way I could provide my own health care for example, a bad traffic accident could be in the millions even though the risk is small. I need to pool that risk somehow, and honestly I'd much rather deal with my country's universal healthcare than the US health insurance companies. And that goes for pretty much every other case where I'd get screwed over by big institutions, chains and conglomerates. Yes, every time you create an organization it starts having a life of its own like democracy and the political system, but alone you're an ant to be brushed away if not trampled on.

Re:This is about government power

[drinkypoo]

YMMV, but I'd much rather deal with the government than the corporations.

The government is just a corporation that sells our birthright to corporations. Indeed, it is permitting them to control more and more aspects of our lives; you might as well say it's selling us to them. When the corporations own every source of food, housing, and water in the world, then indeed we will belong to them, and they are achieving this ownership through the government. They are taking over water rights through a variety of underhanded deals and taking over food production by having small food producers put out of business by the FDA. If you don't use water one year they take away your allotment to encourage overpumping of aquifers.

Seriously, the government is just there to fuck you over on behalf of the corporations at this point.

Re:This is about government power

[Anonymous Coward]

Most of your issues regarding corporations is how they use government to pass laws that limit competition allowing them to fuck you in the ass.
Corporations suck. This is true. Government also sucks.
The difference between the two comes down to which one can come in my house and take me away when I do something they do not like.

Wait. Why is this a bad thing?

[Anonymous Coward]

The law itself. I mean, isn't that what happens already? IANAL though, so I have no idea.

Re:Wait. Why is this a bad thing?

[ThatsMyNick]

With Proposition 69, you would have had your DNA taken as soon as you are arrested. Now, your DNA would be taken only when you are convicted.

Re:Wait. Why is this a bad thing?

[elrous0]

The original Proposition 69 in 2004 just limited this to those arrested for sex offenses. But then in 2009 they extended it to everyone arrested for ANY felony. Even if they expected the original version to hold up in court, there is no way in holy hell that they couldn't have know that the 2009 revision would last about 5 minutes in front of any court.

Re:Wait. Why is this a bad thing?

[Martin Blank]

It was a tiered system when it was voted on. Those who read even the summary knew that. It was phased to provide time for the labs to ramp up for the expected number of samples being taken.

Arrest?!? Did they really think that would stand?

[elrous0]

Apparently, they did at least try to specify, initially, that they could only keep these DNA profiles for 2 years. But then they stripped even that restriction of any teeth by allowing the lab to keep it indefinitely (based only on the assurance by the arresting cops that the suspect was still part of an "ongoing investigation") and absolving the lab of any legal penalties for not purging profiles from the database (or any defendant from claiming in his defense that his sample should have been purged).

Suspicion comes before arrest?

[Zebraheaded]

"“What the DNA Act authorizes is the warrantless and suspicionless search of individuals..." A felony is commited. I find someone I think might do it. Let's call them a...suspect. I arrest this suspect. Now you're saying it's suspicionless for me to take a DNA sample?

Re:Suspicion comes before arrest?

[Anonymous Coward]

Simple answer: Yes.

Re:Suspicion comes before arrest?

[Zebraheaded]

So then how do you get arrested for a felony without being suspected of anything?

Re:Suspicion comes before arrest?

[thaylin]

Really? That is as far as you can think? First of all lets throw out that suspicion does not equate to evidence that he did it. To be under suspicion maybe all you need to be is white and around 6 foot like the perp. Now lets think past that for a sec and assume you are really not the person that committed that crime, but you did commit another crime, that you are not suspected for. That is what they are referring too. And while I would like someone like that arrested too, it is unconstitutional.

Re:Suspicion comes before arrest?

[MozeeToby]

Ok, let's say you get arrested for a felony, they take your DNA swab. I'd agree that that isn't unreasonable (though I would personally argue for requiring a warrant for even that much, but I digress). Then the DA, for whatever reason, decides not to press charges and you're released.

Now, lets say someone gets raped. They take DNA evidence from the attacker and punch it through the database that now includes your information. That is a suspicion-less search, and there are very, very good reasons why they are a bad idea. Specifically, DNA evidence might be 99.99% accurate, but that statement falls to pieces when you have 5 million entries in your database and have no way of weighting one match compared to another. To summarize, you have not been convicted of a crime, but your DNA is being searched every single time DNA is gathered from a crime scene, and that is a major problem.

Re:Suspicion comes before arrest?

[Anonymous Coward]

This is comparable to the police searching a suspects house when they are arrested for shoplifting, sure it might be related to their crime, but the police need to first prove that it's necessary to a judge and get a warrant.
Someone who has been arrested has not been convicted and until they certain protections are still afforded them.

Re:Suspicion comes before arrest?

[MozeeToby]

Your DNA is going to be searched every single time DNA is gathered from a crime scene for the rest of your life (and probably beyond), including crimes that have absolutely nothing to do with what you were arrested for, even if no charges were ever filed or if you were found innocent in a court of law. That is being searched without being suspected.

Re:Suspicion comes before arrest?

[Ohio Calvinist]

If the person is arrested and there is compelling evidence, the court might allow for a DNA sample to be taken and compared against cases where there is a reasonable suspicion. Arresting someone (which can be done at-will, for almost any reason), so that the police can expand their DNA database and hope that the DNA search will turn up a match for some crime in which they previously had no suspicion is a pretty far reach and is sloppy police work. The issue is the burden in which the police need to draw the sample (ought to be more than the burden for arrest), the retention and maintenance of the data, and to what extent the police can use the DNA to try to develop further charges in which there is no reasonable suspicion.

Re:Suspicion comes before arrest?

[Anonymous Coward]

A person gets murdered. Even without investigation all close relatives are immediately suspects. *Then* the investigation begins.

Re:Suspicion comes before arrest?

[gnud]

Well, what if there's no DNA in evidence to compare the sample against? With this law, a sample would be taken anyway.

Re:Suspicion comes before arrest?

[Zebraheaded]

My vehicle's license plate number, make, model, color is being searched for a match every time there is a traffic violation or an amber alert. Should I bitch that my registration should not be on record to avoid suspicionless search?

Re:Suspicion comes before arrest?

[Zebraheaded]

What happens when there's an amber alert? Shit! The police search through car registrations for a match. I'm being searched without suspicion!

Re:Suspicion comes before arrest?

[StillNeedMoreCoffee]

Well given that the rule of law says innocent until proven guilty, your premise is assume guilt not only of this crime but of any crime that might have ever happened or is going to happen, Much like the sex offender databases. I especially like the case of the 18 year old boy convicted as a sex offender for having contact with his 17 year old girlfriend in college. Its the law, he's a sex offender and will be labeled as such for the rest of his life, in databases, with old biddies scanning to see who is living next door. What was that book, oh yes the Scarlet Letter. Looks like we are going back to the Witch hunt days. This DNA collection is just part of that mind set.

Re:Suspicion comes before arrest?

[AK Marc]

With a one in a million chance of a false hit, and multiple millions of samples, you'll get multiple false positives. This will result in innocent people being convicted because DNA is never wrong (CSI has trained jurors of that). Police will ignore vindicating alibis when DNA says otherwise, punishing the innocent for being in the database.

Re:Suspicion comes before arrest?

[Anonymous Coward]

So then how do you get arrested for a felony without being suspected of anything?

How could it be possible that DNA is evidence in every single felony arrest?

Re:Suspicion comes before arrest?

[Ohio Calvinist]

No. Your vehicles' external properties are publicly visible. Physical attributes of your person are also being checked as you walk down the street by law enforcement. However, if a witness said a "red car" ran a red light, it would be unreasonable to detain all red cars, just as it would be unreasonable to detain all men or all men of a particular race because a witness claimed to be assaulted by a man, or a man of a particular race. If the witness said license ABC-123 ran the light, then it is more reasonable for the officer to question you, because there is a specific trait.

There is a significant difference when it comes to an officer ordering you to empty your pockets, open your briefcase, open your glove box or draw your blood if he or she has no more suspicion that you are guilty of a crime than he would be suspicious of any other random person.

You could make a case that it is unjust to have to place personally identifying information on the outside of the car where it can be readily searched without the officer having observed you break the law or otherwise have suspicion.

Re:Suspicion comes before arrest?

[Zebraheaded]

There is absolutely no assumption of guilt involved with this. Your fingerprints, your properties, your vehicles...all these exist in databases which the polica already search through without any assumption of your guilt or innocence. This is no different. Go bitch about those databases if you're going to bitch about this one. There is nothing to fear in having your DNA on file unless you have something to fear already.

Re:Suspicion comes before arrest?

[Anonymous Coward]

You register your car in exchange for being allowed to drive on public roads. In the case of DNA swabs, you're not voluntarily registering anything, it's being forcibly taken from you.

Re:Suspicion comes before arrest?

[Zebraheaded]

So you voluntarily give your fingerprints then?

Re:Suspicion comes before arrest?

[Zebraheaded]

"... no more suspicion that you are guilty of a crime than he would be suspicious of any other random person." I wasn't aware that "random" was the criteria for making felony arrests.

Re:Suspicion comes before arrest?

[Zebraheaded]

The same way that fingerprints are.

Re:Suspicion comes before arrest?

[Anonymous Coward]

I agree that they're similar, but I don't think that makes the DNA collection ok, I think it makes taking fingerprints not ok.

Re:Suspicion comes before arrest?

[Anonymous Coward]

You missed the point. This is about a search that occurs AFTER the case related to the initial arrest has been dismissed. That means that, for all intents and purposes, the DNA sample being checked IS of a "random" person, not a person of interest.

Re:Suspicion comes before arrest?

[calmofthestorm]

You can choose not to have a car like I do. You can't choose not to have DNA.

Re:Suspicion comes before arrest?

[Anonymous Coward]

One big difference. Judges and juries understand that there are many cars that match "beige Ford sedan" and police/prosecutors need to find a hell of a lot more evidence. Even if someone reports your plate number, it should be possible to convince a jury that the witness might have misread it if there is absolutely no other evidence.

  Juries do not necessarily understand false positives for DNA results (in fact, most police officers and DA's probably don't either). Get a big enough database of DNA samples, scan it often, and you will end up with false positives.

Re:Suspicion comes before arrest?

[magarity]

DNA evidence might be 99.99% accurate, but that statement falls to pieces when you have 5 million entries in your database and have no way of weighting one match compared to another.

How is DNA info stored in a database, anyway? And why can't you see if there are duplicates with select count(1), dna from californiaresidents group by dna having count(1) > 1 ?

Re:Suspicion comes before arrest?

[suutar]

The problem, I think, is that you're getting DNA-sampled regardless of whether the DNA has any evidence value for your arrest. Shoplifting over a certain value is a felony. Generally they don't need DNA to make that case. Taking a DNA sample is not germane to your arrest or trial. Why should they do it?

Re:Suspicion comes before arrest?

[suutar]

As I recall, it's like storing a long string attached to your name. Then they feed in a bunch of strings from fragments found at the crime scene, and see how many of them are substrings in _your_ string. Lots of substrings, not many unfound, and bang.

Which makes one wonder... is the query designed to return multiple positives, or does it implicitly assume that the first match is right? (or even that the best match is right, which seems intuitively closer, but still not that hot).

Re:Suspicion comes before arrest?

[the eric conspiracy]

From the Death Penalty Information Center:

Accuracy of DNA "Matches" to Definitively Identify Suspects Questioned

New research has called into question the reliability of some use of DNA tests to definitively identify suspects in criminal investigations. After recent evidence of chromosomal "matches" based on DNA testing turned out to belong to unrelated individuals, some scientists wonder whether there are flaws in the assumptions that underlie the FBIâ(TM)s statistical estimates of DNA accuracy. In 2001, Arizona state crime lab analyst Kathryn Troyer was running tests on the stateâ(TM)s database when she came across two felons with remarkably similar genetic profiles. They matched at 9 of the 13 locations on chromosomes, or loci, commonly used to distinguish people. While the FBI estimated the odds of finding unrelated people sharing those genetic markers to be 1 in 113 billion, Troyer found the men to be unrelated and of different races--one was black and the other white.

Since that initial discovery, Troyer has found dozens of similar "matches," sparking a legal fight over whether the nationâ(TM)s genetic databases should be more closely scrutinized. At the time of her discovery, many states looked at only nine or fewer loci when searching for suspects (most attempt to compare 13 loci when evidence is available). Because of her results, Troyer and her colleagues believed that a 9-locus match could lead investigators to the wrong person. âoeWe felt it was interesting and just wanted people to understand it could happen,â Troyer explained. âoeIf youâ(TM)re going to search at nine loci, you need to be aware of what it means. Itâ(TM)s not necessarily absolutely the guy,â added Troyerâ(TM)s colleague Phoenix Lab Director Todd Griffith.

Inspired by these findings, defense attorney Bicka Barlow investigated if there might be similar matches in DNA databases to challenge prosecutorsâ(TM) assertions that the odds of a coincidental match were as remote as 1 in 1 trillion. She subpoenaed a new search of the Arizona database and found that there were 122 pairs of individuals that matched at 9 of 13 loci and 20 pairs that matched 10 out of about 65,000 felons. For years, courtrooms have treated DNA results as the gold standard in evidence, finding it hard to argue with odds like 1 in 100 billion. âoeTroyerâ(TM)s discovery threatened to turn the tables on prosecutors. At first blush, the Arizona matches appeared to contradict those statistics and the popular notion that DNA profiles, like DNA, were essentially unique.â

The FBIâ(TM)s estimates originated from a sample population of a few hundred people in the 1990â(TM)s. The FBI sent out a nationwide alert to crime labs warning of defense requests after Barlowâ(TM)s subpoena. Illinois did a similar search of their database in 2006 and found 903 pairs of profiles matching at 9 or more loci in a database of about 220,000. Maryland searched their database for matches in 2007 and found 32 pairs matched at 9 or more loci among fewer than 30,000 profiles.
(J. Felch, M. Dolan, "How reliable is DNA in identifying suspects," L.A. Times, July 20, 2008). See Studies and Innocence.

Re:Suspicion comes before arrest?

[FreakyGreenLeaky]

Speaking as a non-US observer in all this: how is this different to your finger prints being compared every time an official does a finger print search in their DB? ...or vehicle registration numbers, or social security numbers, or credit card purchases in the vicinity of a crime, or video surveillance of a public road, or cell phone records of a particular tower in the vicinity of a crime, etc, etc.

I too am uncomfortable with too much information being collected, but if it's regulated and checks/balances are in place, does it not help fight crime and catch baby rapers, mother rapers, FATHER rapers. (sorry, for an silly second there Alice's Restaurant came to mind:)

Re:Suspicion comes before arrest?

[StillNeedMoreCoffee]

"There is nothing to fear in having your DNA on file unless you have something to fear already."

Well some of the problems here are the people in power. If the FBI had not at times held files on the people they thought were politically different that the administration, some being elected officials, (affects trust of those who have access to the data and their motives and agenda) , or if data in databases (like identity theft) had not been stolen, (affects trust in the security of the data and how its used), or companies mining data about you and selling it to the highest bidder (affects trust that personal, private inforamtion will be used against you say to deny a loan, or health insurance or a job).

Data is power, this is your data and no one elses business. If there is no reasonable reason to take it, it should not be taken.

We are at the edge of 1984. "Unless you have something to fear already" actually I do, the collection of data about me and who and how that will be used and not for my benefit.

slashdot fail

[jalfrock]

The introductory comment says it's about "DNA collection from criminals". The whole point is that half of these people are *not* "criminals"!

Re:slashdot fail

[NoNonAlphaCharsHere]

Half of the people arrested for felonies aren't criminals? Sounds like they have a bigger police problem than DNA sampling.

Re:slashdot fail

[Anonymous Coward]

Have of them aren't convicted, so no, they aren't criminals as far as the law should be concerned.

Re: How does this differ from fingerprints

[RareButSeriousSideEf]

Took the words out right of my mouth. Given a similar "destruction upon not-guilty" provision (or better yet, no submission to database prior to conviction), the practice seems perfectly reasonable to me.

DNA vs Fingerprints

[Anonymous Coward]

I don't pretend to have any kind of in-depth knowledge of criminal law, but don't they already do this with fingerprints? If so, what's the difference between fingerprints and DNA? There are only a very few circumstances where DNA is proof of criminal misconduct--most of the time it just proves that someone was somewhere (much the same way that fingerprints do). Although there are theoretical circumstances where your DNA might be misused in ways that fingerprints can't be, I can't think of any that are past the theoretical stage at this point.

If, on the other hand, this statute differs from how fingerprints are processed, I absolutely agree with the judge.

Re:DNA vs Fingerprints

[SpanglerIsAGod]

There are several differences between DNA and Fingerprints, however I think that fingerprints should be treated the same. Fingerprints shouldn't be added to the database without a conviction either. I don't know if they are in California or not though.

I think the thing that potentially makes DNA collection worse then fingerprint collection is more of a future concern. As we become more familiar with genetics there may be a lot of things this could be used for other than identification. It could potentially be used to show individuals who may have a higher predisposition to commit a crime. I don't think this will ever be able to show someone will in fact commit a crime, but it could lead to classes of people being monitored differently by the police because of their DNA on file. Much like how particular ethnic groups are more likely to be arrested for particular crimes even when those who commit them are well distributed across ethnicity.

How is it any different

[Anonymous Coward]

than fingerprinting a suspect?

I guess that means...

[Anonymous Coward]

fingerprints are going to be next?

Should the ban apply to fingerprints as well

[RNLockwood]

What's the difference between making a person give up fingerprints and giving up DNA without a warrant? Either may be used to search databases, that is, for fishing for possible links to crimes. I think that the two are very much analogous.

Re:Should the ban apply to fingerprints as well

[BJ_Covert_Action]

Except the information stored in your fingerprints cannot be used to determine whether you have certain gene sequences that make you a higher risk factor for genetic diseases like your DNA can. DNA is a lot more than a unique identifier from person to person (and whether or not it is that is debatable). It stores a lot of personal, private data about you.

And if you think someone other than the police will never get their hands on this database (or, at least, part of it) eventually, you are kidding yourself.

Re:Should the ban apply to fingerprints as well

[Anonymous Coward]

I think that the risk of gleaning medical information can be avoided by running the test, saving the results, and destroying the sample immediately. AFAIK the tests don't look for genes but "junk" markers. .

Re:Arrest?!? Did they really think that would stan

[houghi]

We are ALL under an ongoing investigation. Not specifically about any crime or even crime at all. I am not paranoid, I know that I am being followed.

Re:They should only do this for certain people

[Anonymous Coward]

You say that as if they were disjoint sets.

Re:They should only do this for certain people

[couchslug]

"Get those fucking thugs off the streets. Niggers, spics, Republicans and faggots."

I'm a Latino Mulatto Log Cabin Republican, you insensitive clod!

Proposition 69...

[cobrausn]

Is poorly named unless the police also have to give a DNA sample to the arrested.

Re:Proposition 69...

[umbrellasd]

I do not want to receive (or give) that type of DNA sample, thank you!

Re:Proposition 69...

[Anonymous Coward]

I'm pretty sure you need air quotes around "DNA sample."

Re:Proposition 69...

[Bob the Super Hamste]

Depends on the arresting officer but as a general rule I probably wouldn't want to either.

Re:Arrest?!? Did they really think that would stan

[ColdWetDog]

Yes. We'd like to talk to you about that. We're really upset that you keep flipping the bird at us. We're just doing our job (and we've noticed you aren't doing yours - hanging out on Slashdot all day).

-- your friends from some undisclosed Government Agency

Is DNA the same as a high-def photo?

[Anonymous Coward]

Suppose at a crime scene a high-def image of the person is taken. Then that image is compared against all photos in the drivers license database. Is that legal? Suppose there's a match, and the suspect was never arrested or convicted. Is that still legal? So how is that different from doing DNA matching?

Re:Is DNA the same as a high-def photo?

[spire3661]

Because DNA is much more then flat impression data like a fingerprint or a photograph. Its your 'source code', and contains all of your inherent medical history. IN the past we have deemed this information extremely private. Private enough to not collect it widely, but only when necessary. An arrest should not constitute necessary.

Great; now how about the Feds?

[jvonk]

The US Marshals collect DNA from all the people they arrest, per 42 USC 14135a.

Excerpt:

(a) Collection of DNA samples
(1) From individuals in custody
(A) The Attorney General may, as prescribed by the Attorney General in regulation, collect DNA samples from individuals who are arrested, facing charges, or convicted or from non-United States persons who are detained under the authority of the United States. The Attorney General may delegate this function within the Department of Justice as provided in section 510 of title 28 and may also authorize and direct any other agency of the United States that arrests or detains individuals or supervises individuals facing charges to carry out any function and exercise any power of the Attorney General under this section.

Automatic expurgation of DNA data upon acquittal? Ha.

Re:Great; now how about the Feds?

[amiga3D]

I wonder what the founding fathers would think of all this....but of coursed if they were alive today they would be considered anti-government terrorists.

Why would the state appeal?

[Anonymous Coward]

Why would the state appeal the ruling? This was a people's measure. For all we know the state thought the people were idiots for passing it in the first place. On that note, wake up people -- a majority of citizens were IN FAVOR of crap like this, this came straight from the people, this was not something cooked up by a power-hungry government. Be afraid.

Re: How does this differ from fingerprints

[Anonymous Coward]

Except that once you've been arrested they can run your DNA profile against all unsolved cases.
Hooray for false positives!

Re: How does this differ from fingerprints

[Anonymous Coward]

Except that once you've been arrested they can run your DNA profile against all unsolved cases. Hooray for true positives!

FTFY. False positives are a statistical anomaly Defense attorneys can press for more detailed tests should less accurate screening tests offer a false positive, assuming the more detailed tests are not done automatically by the prosecution to make their case stronger in front of the jury. The *far* more common case will be honest-to-god true positives, identification of a formerly unknown person at the scene. So yeah, hooray, that is good news. A small portion of criminals create a very disproportionately large number of the crimes.

DNA can't convict you

[Anonymous Coward]

Just ask the OJ jury - "Alls that proves is dat OJ's gots blood".

TFS makes critical error: arrestees != criminals

[DragonWriter]

wiedzmin writes with an article in Wired about DNA collection from criminals in California.

Actually, no, the whole point (and a key factor in it beingstruck down) is that it is not about DNA collection from criminals.

Re: How does this differ from fingerprints

[Tmack]

Except that once you've been arrested they can run your DNA profile against all unsolved cases. Hooray for false positives!

And they dont for fingerprints?? (Which have a much higher false-positive rate)

-Tm

Re: How does this differ from fingerprints

[Anonymous Coward]

What is peoples obsession with implementing more and more Orwellian law! What happened to the America I believed in? Where there were no licenses to go down to the local pub or get a job. Honestly. We don't need any of these laws. Before your even 18 the government has a dozen means of tracking you without a good reason. The license plate, the drivers license, the finger print, the employment license (barbers, computer repair people, just about every one). It is ridicules. I was in Princeton, NJ, USA several months back to pick up Richard Stallman for a conference (humourlessly) and I wanted to park my vehicle at the train station. I couldn't park without first inserting a credit card. How ridicules is that? This was not a private lot either. It was PUBLIC transport. Now we also have government funded and mandated cameras too everywhere. Has ANY of this made us safer? I doubt it. Certainly one can be arrested for speeding without a license needing be issued just as we would arrest anybody else for any other crime. A license indicates you can safely drive yet- EVERYBODY has to learn first and is thus a danger anyway. You get better with experience. Ok- so you say it keeps physically incapable people off the road? UNSAFE DRIVERS CAN BE ARRESTED with or without licenses. Yea- it means there is more work involved. And that is how it should be. The less work it is for police the more of a police state we live in. Police should be there to assist in dangerous situations not to pester law abiding citizens.

Does California have an "implied consent" law?

[blindseer]

In many states there is a law that allows the police force a blood alcohol content test on a person. If a person has a license to drive the officer can force a blood sample from the driver. This also seems to be a trend for states that issue licenses to carry a firearm. Some states are so backward that the police are allowed to arrest people that "fake" drunkenness. You mouth off to the police then you are going with them for "public intoxication". I don't know if the police can take a blood sample then as a means to determine guilt but I would not be surprised if that is the case.

The point is that there may already be laws in California that allows for the taking of a blood sample, and therefore a DNA sample. Even though there may not be a formal database of DNA samples of those arrested on felonies there may already be laws that the police can exploit to build this database. Unless there is a law restricting the use of blood samples taken during a drunk driving stop I suspect someone in the government sees those samples as a way to prop up their career by (ab)using them and go fishing for DNA that might match up with a cold case.

This law being struck down is a nice start, we still have a long way to go in this country. Now lets see the courts strike down the licensing checkpoints in California. You know, those roadblocks where the police stop every car and ask the driver for their papers? Where if you cannot produce a valid license to drive they confiscate your car? The government has been getting away with way too much peeking into our lives.

With Scalia and his shadow

[ThatsNotPudding]

this police state law will be upheld. #RIPUSA

HOW MANY TIMES

[ThatsNotPudding]

Does it have to be pointed out (on Slashdot, no less!!) that duplicating DNA to plant at the next crime scene or in the evidence locker is a million times easier than duplicating fingerprints, FFS!!

just another bio-metric

[scharkalvin]

Are arrestees also finger printed? DNA samples are just another bio-metric as are finger prints and retina scans. If the latter two are legal to obtain from an arrestee then I don't see the problem here. Or maybe the ruling should also apply to finger prints as well.

DNA

[hidave]

I'm wondering now why the TSA doesn't take a DNA sample (cheek swab) from each passenger? A frisk invades the privacy of an individual much worse than a cheek swab, and if the TSA is allowed to frisk people with no proof of a crime nor reasonable cause to suspect a crime, why couldn't the police do it when there actually is a reasonable cause to suspect a crime (ie, an arrest). Likely, such tests would reveal that this person has committed crimes previously where DNA was found but no suspect's DNA was on file matching it. What is the difference between DNA and fingerprints, which are also taken when someone is arrested?