DNA sampling upheld for all felony suspects

[alp227]

Source: Bob Egelko, San Francisco Chronicle

(12-23) 16:24 PST SAN FRANCISCO -- A federal judge refused Wednesday to block a voter-approved California law requiring anyone arrested on a felony charge to provide DNA samples, saying genetic information is similar to fingerprints and helps police solve crimes.

U.S. District Judge Charles Breyer of San Francisco rejected an American Civil Liberties Union request to halt enforcement of the law, which took effect in January, while a lawsuit that the group filed proceeds. He said the ACLU is unlikely to prove that mandatory DNA samples are an unconstitutional invasion of privacy.

Police collect DNA by swabbing a person's inner cheek. A state laboratory analyzes the information and sends it to a national database that officers use when testing evidence from crime scenes.

Previously, the state collected DNA samples only from those who had been convicted of a sex crime or a violent felony. Proposition 69, approved by 62 percent of the voters in November 2004, extended the requirement to anyone arrested on a felony sex charge; starting this year, the measure required everyone arrested for a felony to provide samples.

Read more: http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2009/12/23/BA1L1B8UCL.DTL

---

Breyer was appointed to the federal court by Clinton, by the way. The ACLU argued that Prop 69 violated the Fourth Amendment, but Judge Breyer argued that DNA is a mere form of identification. An anti-war protester who got arrested and allegedly forced to provide a DNA sample or be sent to jail is the lead plantiff in the ACLU lawsuit.

[rantormusing]

1. A little off topic

Even though Obama isn't the change this country needs, as long as the majority of the general population is cruising on this punishment fetish, there will be no meaningful change in this country. THere's a cruel streak out.

[paulsby]

2. DNA helps free the innocent and convict the guilty

i usually agree with the ACLU, but not on this.

i see it as "reasonable" and thus acceptable under the 4th

[rantormusing]

3. Yeah, but not by force

If Dna is needed in regards to innocence or guilt, it should be accessible during trial. Both sides can make motions pertaining to why etc etc. This is a blanket enforcement without any regard to a specific search, pretty unreasonable to me.

[paulsby]

4. it's the exact same as the way they take fingerprints.

by force.

it's an identifier, just like DNA.

it can be used to help exonerate the innocent, and convict the guilty as well

and trust, em, fingerprinting was just as controversial when it was introduced, and when it was done by force to all arrestees and DNA is now.

you just (likely) accept it because it's the status quo.

20 yrs from now people will think the same way of DNA testing upon arrest, as they do of fingerprinting

[rantormusing]

6. Status quo isn;'t proof of right or wrong.

If this is being done at the arrest, it violates the 4th amendment. You need, actually scratch that, you should need a judges order for DNA access. As i said above, establishing innocence or guilt, that should be done during the trial. Plus they already have an identifier, this is more, and more harmful, security theater. I hate to call it even that, it's pretty foul, i could be nice and say the police can save themselves a step, and wait for the judges order, but they probably get off on this too.

[paulsby]

9. i agree

i wasn't saying it was proof. i was saying the situation with DNA *now* is analogous to the situation with fingerprints oh so many decades ago.

here's what you don't get.

fingerprints, JUST LIKE DNA can establish innocence or guilt (or more correctly provide substantial evidence towards it), and yet fingerprints are done at time of arrest too.

so, i repeat.

if it's ok to take fingerpritns UPON arrest, w/o an order, then why isn't it ok to take DNA.

they are both identifiers.

so, you are saying we can only use ONE identifiers? so should we require a court order to photograph a person being booked? that's an identifier. heck, in most cases, a photograph is a much more useful identifier than DNA.

what's so special about DNA vs. a photo, or fingerprints?

[rantormusing]

12. WHen is enough enough

These things can be tampered with, and a quick google search will prove that. Look at mississppi and steven hayne. The reason that DNA evidence is now freeing scores of people is because evidence and testimony have been withheld and abused in the past. SO no, without a judges order, without a proper reason, they can take a long walk off a short pier. The world will be better off minus one authoritarian. Fingerprints are wrong too, hell even certain employers can get that access now.

[paulsby]

13. where to start

first of all, yes DNA can be tampered with. so can fingerprints. so can witnesses (not to mention that witnesses can lie of their own volition or be mistaken as hell).

it is not the case that the reason that DNA is now freeing scores of people is because evidence and testimony have been witheld. that's true in some cases. what is also true is that even given honest prosecutors, cops, witnesses, etc. innocent people cAN and DO and WILL get convicted. why? because the trial process is an imperfect search for truth. heck, victims lie. see: duke "rape" case etc. i accept that it is unfortunate but true that even given perfect honesty and intentions, that innocent people will get convicted. there is NO way around that w/o perfect knowledge.

you have yet to distinguish why DNA should be treated differently than fingerprints (or photographs) at booking.

i'll help you. DNA testing (at this point) requires an intrusion into the body, via a swab. fingerprints and photos DOn'T

see, was that so hard?

there are other identifiers that may be used in the future at processing. ears for instance are unique to each person. iirc, they are already used at the border for that purpose.

you haven't explained what's "authoritarian" about DNA VERSUS fingerprints or photographs.

locard's principle has always been (or for many decades at least) a part of investigation, but now we can get much more granular

that's good for innocents. it's just as important to eliminate innocents from suspicion as it is to convict the guilty.

justice demands it

[rantormusing]

18. Actually, i did slip it in there.

Not like i could change anything, but i would regard fingerprinting as intrusive/unreasonable without a court order. If it's needed then go to the judge, pretty simple to me. If we're saying it is ok to take DNA by force, then i would regard that as a pretty authoritarian stance. It comes down to taking these samples without reason, or cause, identifying is redundant. As for processes eliminating the innocent from certain cases, they already have those, but maybe if locking people up wasn't so incentivized, then less innocent people would be behind bars.

[paulsby]

19. well, aside from the fact that

the title of your post reminds me of a confession i got from a rapist recently... :)

i can certainly applaud you for intellectual honesty. *if* you think fingerprinting is not 'reasonable' (which is the 4th amendment metric) w.o a court order, then it's consistent to say the same about DNA.

identifying WITHOUT fingerprints or DNA would not be redundant. photographs simply aren't that reliable.

a fingerprint or DNA can positively confirm that john doe is the same john doe that was arrested 10 yrs ago. a photo won't do it.

it all comes down to the 4th. the 4th is a balancing test, as well as a "what would the reasonable man" think test.

i certainly think DNA and fingerprints are reasonable. you don't

i can accept that. i just don't agree with that.

so that's kewl

[rantormusing]

22. lol

It's not what a reasonable man would think, it's what a judge would think, and there should be a cause, but a "reasonable" man might not think that's necessary, they'd be wrong though. Police do "process" those who arrested, right? THey just don't snap a picture, dirty your hands, and stick cotton swabs in your mouth, I'm assuming they ask questions, talk to neighbors, maybe write down the last place they lived. I'm sure accurate, reliable information can be kept without the need for invasive procedures.

[paulsby]

33. no, actually you are wrong

the "reasonable man" test is frequently used in 4th amendment (and other constitutional law) analysis.

check it out in lexis-nexis if you don't believe me.

it IS what a judge thinks (see: judicial review) but in many issues of constitutional law, he applies the "reasonable man" standard, not the "reasonable judge" standard.

as for processing, without fingerprints (or dna), there is ALWAYS a question of id. trust me. i've been to dozens of id hearings.

it's not unheard of , for example, on a traffic stop, for a driver to use somebody else's name, dob, etc. which then sometimes results in THAT person getting warrant due to subsequent failure to appear, etc.

actually, there's a funny story about this. we have a local set of twins that are frequent flier criminals. very difficult to tell apart. when one has a warrant, they will both claim to be the other one (obviously if seperated, it's difficult to determine if the guy claiming to be joe is in fact joe).

anyway, these GENIUSES went and got tattoos that actually make a profane reference to police. but the tattoos are slightly differnet (in terms of the way the letters are offset) and now we have a definitive way to tell one for the other, prior to bringing them in for printing

idiots

[winyanstaz]

10. You are correct but most Americans no longer know or care about their rights.

let alone what the Constitution stands for or means.
It's another tiny step toward total and complete control and ownership by the government of all parts of a persons life and body.
They want to do this..even though the person has not been convicted of anything..but merely on suspicion.
That will mean at any time all a policeman has to do is suspect you of anything at all...and can pull you over and take your dna.
And what happens to that dna if you are found innocent? Do they give it back? Destroy it? Or are you forever in their database?
Why do they even bother to pretend anymore that it is to "help us" and just make it mandatory for all new babies and all citizens to be dna registered.
When does the encroachment on civil rights stop?

[rantormusing]

11. thank you

was getting mighty lonely at this small party.

[paulsby]

21. what happens to your fingerprints

if you are found NOT GUILTY .Note: most people are not found "innocent". that's a fallacy. it's not within the power of a jury or judge to determine that, genertally speaking).
\
the fingerprints remain on file.

so does yer DNA.

it doesn't mean a cop has to "suspect you of anything at all" and can take your DNA.

it requires probable cause... of a felony offense.

DNA and fingerprints DO help people. namely those who are in fact innocent. i've eliminated suspects in MANY cases via one or both.

and helped send scumbags who prey on others to prison.

b00ya!

[bl968]

28. Warrant

Actually all they have to do is arrest you then they have the dna on file and can scan the database and then find it without a warrant. The same reasoning that says they can arrest someone based on fingerprints on file and do not need a judges warrant to search the database to begin with.

[winyanstaz]

31. and why should they be able to keep the fingerprints of innocent people?

[izquierdista]

5. What force?

They could get dead skin cells with a piece of Scotch tape, even less intrusive than taking a set of fingerprints. Or spit. Crimes have been solved matching saliva on cigarette butts.

[rantormusing]

7. I think that's called securing a crime scene,

and someone had to ask a judge if they could get that saliva to match to those cigarette butts they found at the crime scene.

[GreenStormCloud]

35. No, they don't have to ask a judge to be able to pick up a butt.

If you throw it away, it is trash. They can pick up trash without a warrant. Once you discard something, it is in the public domain. It no longer belongs to you. After all, does the trash guy need a judge's warrant to pick up your garbage?

[Hestia]

8. I think you are thinking of TV shows - actual DNA is almost impossible to

get off of cigarette's, etc. Judges and juries think if it is on CSI, it must be true. Even fingerprinting is not 100% foolproof, and ballistics is worse on the list. Used to be, we errored on the side of caution and not a scorched earth policy.

[izquierdista]

16. You don't need many cell nuclei to do a test

PCR technology gets better all the time. Why in another 163 years, they might even be able to clone a new President from the old one's nose.

[rantormusing]

20. It's the tv shows that are the problem.

[paulsby]

we call this the CSI effect

it's really funny, but sometimes a major pain in the ass.

victims especially think we are going to call out CSI for their burg or something

aint gonna happen

[paulsby]

34. we call this the CSI effect

it's really funny, but sometimes a major pain in the ass.

victims especially think we are going to call out CSI for their burg or something

aint gonna happen

[XemaSab]

14. Say there are 12 unsolved rapes in a town in the last 20 years

A dude was arrested last week for assaulting a woman in the same 'hood.

For simple assault he might spend a few months in county.

For being a serial rapist he might go away from life.

[rantormusing]

15. Uhm no,

I can't really assume why a DNA sample would be necessary in an assault case, but that's for the judges and lawyers to fight over. If there is a reason to suspect him, then they can make their case.

[tabasco]

30. Yeah, we should have installed AWOL Bush as emperor for life.

I'm very happy with the change.

[sasquatch]

17. I'm ambivalent about this whole situtaion though, but I do not like the man was forced on threat of-

imprisonment to give his DNA for a petty offense.

[boppers]

24. I thought he was arrested for a felony?

Isn't that how it's supposed to work?

[alp227]

25. Are you talking about Elizabeth Haskell from the article?

From the article:

The lead plaintiff, Elizabeth Haskell of Oakland, was arrested in March at an anti-war rally in San Francisco on suspicion of forcibly trying to free another demonstrator, but was eventually released without charges, the suit said. She said police had told her she would be charged with another crime and held in jail if she refused to provide a DNA sample.

You were writing "the man..." :wtf:

[sasquatch]

29. I meant it in the general sense, as in "All men are created equal"

:)

[bluedigger]

23. There is a HUGE difference between DNA and other identification traits.

Fingerprints, photographs, retinal scans, ears, etc. are various means of identifying individuals through unique character traits.

DNA is not just a unique character trait, it is your unique genetic identity, itself. Science is quickly unraveling the various genetic markers, and the opportunities for misuse of this information are numerous and horrifying, at least to me.

Voluntary release of the information to prove one's innocence should remain, but requiring submittal of such upon accusation is one giant leap towards a brave new world.

[midnight]

26. I hope he wins. Collecting DNA evidence is more than mere form of identification.

Wake up...

[LiberalFighter]

27. Where was it that Rape Kits were found to have a major back-log?

Doesn't do any good to collect DNA if nothing is done with it. Just spending taxpayer money uselessly.

And if DNA is collected what is to prevent prosecutors and police from tampering with evidence to produce the needed evidence? And plant it against someone they want convicted?

[Djarun]

32. YAY!!!!! Let's all watch Farenheit 451 & Gattaca!