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California DNA Collection Law Struck Down

Unknown Lamer posted more than 3 years ago | from the mark-of-the-beast dept.

Privacy 192

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.

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Should have been obvious all along (5, Insightful)

mr1911 (1942298) | more than 3 years ago | (#37037482)

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 (2)

Intropy (2009018) | more than 3 years ago | (#37037542)

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 (1)

icebike (68054) | more than 3 years ago | (#37037988)

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 (3, Insightful)

trunicated (1272370) | more than 3 years ago | (#37037576)

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 (4, Insightful)

Wansu (846) | more than 3 years ago | (#37037740)

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 (2, Insightful)

AK Marc (707885) | more than 3 years ago | (#37037758)

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

Re:Should have been obvious all along (0)

Anonymous Coward | more than 3 years ago | (#37037896)

lol

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

Re:Should have been obvious all along (1)

Anonymous Coward | more than 3 years ago | (#37037922)

...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 (0)

Anonymous Coward | more than 3 years ago | (#37037848)

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 (0)

Anonymous Coward | more than 3 years ago | (#37037596)

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 (3, Informative)

DeadCatX2 (950953) | more than 3 years ago | (#37037622)

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

Re:Should have been obvious all along (1)

icebike (68054) | more than 3 years ago | (#37038006)

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 (1)

DeadCatX2 (950953) | more than 3 years ago | (#37038038)

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 (1)

icebike (68054) | more than 3 years ago | (#37038086)

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 (2, Informative)

DeadCatX2 (950953) | more than 3 years ago | (#37038188)

I don't know about that. Judging from this web site [aele.org] 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 (1)

ubrgeek (679399) | more than 3 years ago | (#37038124)

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

Re:Should have been obvious all along (1)

DeadCatX2 (950953) | more than 3 years ago | (#37038080)

I did some googling, and it looks like Bell v Wolfish [wikipedia.org] 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 (1)

icebike (68054) | more than 3 years ago | (#37038162)

But again, charging does not necessarily require a warrant.

Re:Should have been obvious all along (4, Informative)

MozeeToby (1163751) | more than 3 years ago | (#37037642)

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 (2)

PCM2 (4486) | more than 3 years ago | (#37038146)

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 (1)

Anonymous Coward | more than 3 years ago | (#37037672)

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 (3, Insightful)

elrous0 (869638) | more than 3 years ago | (#37037674)

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 (1)

Zebraheaded (1229302) | more than 3 years ago | (#37037710)

...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 (3, Insightful)

BJ_Covert_Action (1499847) | more than 3 years ago | (#37037776)

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 (1)

subanark (937286) | more than 3 years ago | (#37038078)

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 (1)

AK Marc (707885) | more than 3 years ago | (#37037794)

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 (1)

icebike (68054) | more than 3 years ago | (#37038068)

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 (1)

AK Marc (707885) | more than 3 years ago | (#37038208)

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 (1)

Kjella (173770) | more than 3 years ago | (#37037914)

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 (2)

icebike (68054) | more than 3 years ago | (#37038040)

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 (1)

PCM2 (4486) | more than 3 years ago | (#37038182)

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 (1)

Hatta (162192) | more than 3 years ago | (#37038014)

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 [onecle.com] 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 (3, Interesting)

msauve (701917) | more than 3 years ago | (#37037648)

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: How does this differ from fingerprints (1)

RareButSeriousSideEf (968810) | more than 3 years ago | (#37037718)

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.

Re: How does this differ from fingerprints (0)

Anonymous Coward | more than 3 years ago | (#37038204)

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

Re:Should have been obvious all along (1)

Synerg1y (2169962) | more than 3 years ago | (#37037726)

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 (1)

MozeeToby (1163751) | more than 3 years ago | (#37037806)

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 (3, Interesting)

PitaBred (632671) | more than 3 years ago | (#37037808)

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 (1)

stephanruby (542433) | more than 3 years ago | (#37038140)

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

Re:Should have been obvious all along (1)

magarity (164372) | more than 3 years ago | (#37037658)

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 (4, Insightful)

interkin3tic (1469267) | more than 3 years ago | (#37037660)

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 (1)

Nimey (114278) | more than 3 years ago | (#37038062)

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

Re:Should have been obvious all along (2, Interesting)

Anonymous Coward | more than 3 years ago | (#37037750)

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 (1)

terraformer (617565) | more than 3 years ago | (#37037766)

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 (1)

intellitech (1912116) | more than 3 years ago | (#37037830)

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 (2)

Hatta (162192) | more than 3 years ago | (#37037948)

The appeals court made the correct ruling

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

Re:Should have been obvious all along (0)

Anonymous Coward | more than 3 years ago | (#37038088)

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 (1)

MarkvW (1037596) | more than 3 years ago | (#37038206)

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.

DNA and no guilt? (2)

bdabautcb (1040566) | more than 3 years ago | (#37037496)

Should we collect DNA at traffic stops as well?

This is about government power (0, Troll)

Anonymous Coward | more than 3 years ago | (#37037502)

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

Re:This is about government power (-1)

Anonymous Coward | more than 3 years ago | (#37037580)

Only the Republican Party will save us from the abuses of governmental power! They will bring judicial oversight to bear! Oh wait...

Re:This is about government power (2)

cobrausn (1915176) | more than 3 years ago | (#37037684)

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

Re:This is about government power (5, Interesting)

Dishevel (1105119) | more than 3 years ago | (#37037730)

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 (0)

Anonymous Coward | more than 3 years ago | (#37037862)

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

Wait. Why is this a bad thing? (0)

Anonymous Coward | more than 3 years ago | (#37037510)

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? (2)

ThatsMyNick (2004126) | more than 3 years ago | (#37037594)

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? (1)

elrous0 (869638) | more than 3 years ago | (#37037712)

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.

Arrest?!? Did they really think that would stand? (3, Interesting)

elrous0 (869638) | more than 3 years ago | (#37037626)

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).

Re:Arrest?!? Did they really think that would stan (2)

houghi (78078) | more than 3 years ago | (#37037854)

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:Arrest?!? Did they really think that would stan (3, Funny)

ColdWetDog (752185) | more than 3 years ago | (#37037940)

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

Suspicion comes before arrest? (1)

Zebraheaded (1229302) | more than 3 years ago | (#37037646)

"“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? (1)

Anonymous Coward | more than 3 years ago | (#37037680)

Simple answer: Yes.

Re:Suspicion comes before arrest? (1)

Zebraheaded (1229302) | more than 3 years ago | (#37037694)

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

Re:Suspicion comes before arrest? (0)

Anonymous Coward | more than 3 years ago | (#37037762)

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? (1)

MozeeToby (1163751) | more than 3 years ago | (#37037768)

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? (1)

Zebraheaded (1229302) | more than 3 years ago | (#37037844)

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? (0)

Anonymous Coward | more than 3 years ago | (#37038136)

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? (0)

Anonymous Coward | more than 3 years ago | (#37037934)

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? (1)

Zebraheaded (1229302) | more than 3 years ago | (#37038058)

The same way that fingerprints are.

Re:Suspicion comes before arrest? (1)

thaylin (555395) | more than 3 years ago | (#37037746)

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? (1)

AK Marc (707885) | more than 3 years ago | (#37037886)

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? (2)

MozeeToby (1163751) | more than 3 years ago | (#37037754)

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? (1)

Zebraheaded (1229302) | more than 3 years ago | (#37037826)

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? (1)

Ohio Calvinist (895750) | more than 3 years ago | (#37037944)

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? (1)

Zebraheaded (1229302) | more than 3 years ago | (#37038048)

"... 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? (0)

Anonymous Coward | more than 3 years ago | (#37038104)

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? (0)

Anonymous Coward | more than 3 years ago | (#37038004)

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? (1)

Zebraheaded (1229302) | more than 3 years ago | (#37038020)

So you voluntarily give your fingerprints then?

Re:Suspicion comes before arrest? (0)

Anonymous Coward | more than 3 years ago | (#37038094)

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? (1)

calmofthestorm (1344385) | more than 3 years ago | (#37038106)

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

Re:Suspicion comes before arrest? (3, Informative)

Ohio Calvinist (895750) | more than 3 years ago | (#37037778)

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? (0)

Anonymous Coward | more than 3 years ago | (#37037798)

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

Re:Suspicion comes before arrest? (1)

gnud (934243) | more than 3 years ago | (#37037820)

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? (1)

StillNeedMoreCoffee (123989) | more than 3 years ago | (#37037856)

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? (0)

Zebraheaded (1229302) | more than 3 years ago | (#37037956)

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.

slashdot fail (4, Insightful)

jalfrock (982820) | more than 3 years ago | (#37037662)

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 (1)

NoNonAlphaCharsHere (2201864) | more than 3 years ago | (#37037784)

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

DNA vs Fingerprints (0)

Anonymous Coward | more than 3 years ago | (#37037734)

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 (1)

SpanglerIsAGod (2052716) | more than 3 years ago | (#37038026)

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 (0)

Anonymous Coward | more than 3 years ago | (#37037760)

than fingerprinting a suspect?

I guess that means... (1)

Anonymous Coward | more than 3 years ago | (#37037774)

fingerprints are going to be next?

They should only do this for certain people (-1)

Anonymous Coward | more than 3 years ago | (#37037790)

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

Re:They should only do this for certain people (0)

Anonymous Coward | more than 3 years ago | (#37037858)

You say that as if they were disjoint sets.

Re:They should only do this for certain people (1)

couchslug (175151) | more than 3 years ago | (#37037876)

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

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

Should the ban apply to fingerprints as well (1)

RNLockwood (224353) | more than 3 years ago | (#37037810)

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.

Proposition 69... (4, Funny)

cobrausn (1915176) | more than 3 years ago | (#37037926)

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

Is DNA the same as a high-def photo? (0)

Anonymous Coward | more than 3 years ago | (#37037984)

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? (1)

spire3661 (1038968) | more than 3 years ago | (#37038074)

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? (2)

jvonk (315830) | more than 3 years ago | (#37038018)

The US Marshals collect DNA [usmarshals.gov] from all the people they arrest, per 42 USC 14135a [cornell.edu] .

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.

Why would the state appeal? (0)

Anonymous Coward | more than 3 years ago | (#37038076)

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.

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