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

[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

[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

[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

[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

[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

[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

[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]

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

[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

[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

[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

[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

[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

[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

[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

[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: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.

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).

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: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: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?

[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: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.

Proposition 69...

[cobrausn]

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

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

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.