California Appeals Court Strikes Down Law That Required DNA Samples From Everyone Arrested

from the sorry,-that's-unconstitutional dept

A year ago, we wrote about a legal challenge concerning the constitutionality of a California law that requires police to collect and store DNA of anyone arrested (not convicted). A California state appeals court has now struck down the law, saying that it's a violation of the 4th Amendment. Considering all of the rulings lately that seem to have done away with the 4th Amendment, it's nice to see one going in the other direction, though I'm sure there's still going to be an appeal. And, unfortunately, the article linked above suggests that this ruling will likely get reversed on appeal, noting that a federal appeals court (third circuit) recently ruled on the same issue, and said it's fine to collect DNA from arrestees. Still, while this court ruling is still in effect in CA, we might as well quote the judge:
Even focusing on the DNA profile alone, the analogy to fingerprints is blind to the nature of DNA. Courts are well aware tható[r]ecent studies have begun to question the notion that junk DNA does not contain useful genetic programming material and that an intense debate on this subject is now taking place in scientific and legal communities. ... Like the DNA laws of almost every other state and federal law, the DNA Act is silent as to how long these specimens and samples may be kept, and it is reasonable to expect they will be preserved long into the future, when it may be possible to extract even more personal and private information than is now the case. ... [T]he Act places few restrictions on the law enforcement uses to which such information may be put. This raises questions both about the kind of personal and private information that may be derived from the DNA samples in the DOJ's possession, and the uses of that biometric data as scientific developments increase the type and amount of information that can be extracted from it. For example, commentators have discussed the potential for research to identify genetic causes of antisocial behavior that might be used to justify various crime control measures. Fingerprinting presents no comparable threat to privacy.
One hopes the CA Supreme Court or another federal court comes to its senses and agrees on this, but it seems unlikely.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
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    Miff (profile), Aug 9th, 2011 @ 4:48am

    Well the solution to that kind of thing is easy: I'll just get a patent on my own DNA and sue anybody who takes a DNA sample. ;)

     

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    out_of_the_blue, Aug 9th, 2011 @ 4:50am

    Can't have a proper police state without it.

    Worst aspect is that it'll come to be taken as absolute proof, and then mere assertions of a DNA match will be used -- supplied by a preferred laboratory, as at current, which knows the result that police and prosecutors want. It's one of those "proofs" that rely on an assumption that the whole evidentiary chain is completely honest and never makes mistakes, either.

    But as we saw in the OJ Simpson trial, police took a vial of OJ's blood to his house. It's one of the more convincing points that they tried to frame him, TOO.

     

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  3.  
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    inc (profile), Aug 9th, 2011 @ 5:01am

    Doesn't law enforcement use the DNA of relatives for comparison if they don't have the suspects DNA? This alone makes DNA completely different then finger prints, and makes the analogy moot.

     

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  4.  
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    A Dan (profile), Aug 9th, 2011 @ 5:30am

    Typo

    "it's fine to collect DNA form arrestees" should be "from"

     

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  5.  
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    Anonymous Coward, Aug 9th, 2011 @ 5:45am

    "For example, commentators have discussed the potential for research to identify genetic causes of antisocial behavior that might be used to justify various crime control measures. Fingerprinting presents no comparable threat to privacy."

    Your address, and a host of other publicly available information, correlates with your likelihood of being convicted of crime. I don't see how the as yet theoretical possibility of DNA being used to predict ones propensity to commit crime is such a good reason to ban holding DNA samples from those arrested but not convicted.

    It may take centuries - if at all - before we can find a correlation between DNA and ones propensity to commit crime. Even then the correlation may well be tiny.

     

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  6.  
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    Howard the Duck, Aug 9th, 2011 @ 6:27am

    Re: Can't have a proper police state without it.

    Jeebus. Did you see the missiles hit the WTC too?

     

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  7.  
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    Howard the Duck, Aug 9th, 2011 @ 6:31am

    Re:

    It seems like correlation is all we need these days.

     

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  8.  
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    Anonymous Coward, Aug 9th, 2011 @ 6:51am

    Hallelujah. There may be a God!

     

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  9.  
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    gorehound (profile), Aug 9th, 2011 @ 6:56am

    I really really want to vote out all these republican scum and democrat assholes.
    I vote for others starting 2012.We must do something before we live in a true police state.

     

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  10.  
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    That Anonymous Coward (profile), Aug 9th, 2011 @ 6:59am

    Step 1, all Judges, Lawyers, Politicians, Police, Firemen, etc. They all have to submit their DNA to the program first.

    Step 2, Watch this law get stopped damn fast.

     

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  11.  
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    Qritiqal (profile), Aug 9th, 2011 @ 7:57am

    Re: Can't have a proper police state without it.

    I suppose someone else had a motive to kill Nicole Simpson and her new boyfriend in a blind, bloody rage.

    Are you seriously suggesting that OJ wasn't guilty?
    Yes, the police might have done something illegal to try to get him convicted, but my opinion is that it's only a "frame" if you DIDN'T ACTUALLY DO THE CRIME.

     

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  12.  
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    Anonymous Coward, Aug 9th, 2011 @ 8:05am

    Re:

    Please explain how your contribution has anything to do with this blog posting?

     

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  13.  
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    Beta (profile), Aug 9th, 2011 @ 8:24am

    Re: Re: Can't have a proper police state without it.

    "...My opinion is that it's only a "frame" if you DIDN'T ACTUALLY DO THE CRIME."

    I disagree, but at best you're making a point that out_of_the_blue used the wrong word: he is asserting that the police planted evidence. I believe that OJ was probably guilty, but that doesn't make the police more trustworthy, it doesn't excuse them for tampering with evidence if they did so, and it doesn't make me confident that they wouldn't fabricate evidence against someone who was actually innocent.

    If I were on the jury of a case like that, I'd want to see the defense submit some blinded samples to the same lab, just to see whether they can get the same results without any covert hints. (That kind of curiosity is why I'll never be allowed on a jury, and that in turn is why a defender will rarely make that kind of test, for fear of how it might turn out.)

     

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    Anonymous Coward, Aug 9th, 2011 @ 12:59pm

    Re:

    "Your address, and a host of other publicly available information, correlates with your likelihood of being convicted of crime."

    True, but you have at least SOME control over your address. And people are probably more sympathetic if you were driven to crime by outside factors, as opposed to being "born evil."

    "I don't see how the as yet theoretical possibility of DNA being used to predict ones propensity to commit crime is such a good reason to ban holding DNA samples from those arrested but not convicted."

    You say "holding" as if it's just something temporary that will be destroyed if the person is found not guilty, or is never even charged. Once they have your DNA they are going to put it in their system and keep it forever.

    Keep in mind that it is possible to be arrested for doing something perfectly legal.

    "It may take centuries - if at all - before we can find a correlation between DNA and ones propensity to commit crime. Even then the correlation may well be tiny."

    Yes, and it may come next year with a huge correlation. And if he have a huge database of people's DNA, some who were guilty and some who were not, that day is likely to come sooner rather than later.

     

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  15.  
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    Anonymous Coward, Aug 9th, 2011 @ 1:02pm

    Re: Re: Re: Can't have a proper police state without it.

    Don't think a jury member has the ability to ask for that sort of thing... or for anything at all. I think the court system is scared to death that a jury might ask "illegal" questions that would result in a conviction being overturned by appeal.

     

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  16.  
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    Anonymous Coward, Aug 9th, 2011 @ 9:01pm

    I absolutely agree with That Anonymous Coward on comment # 10. If we require the same DNA samples from all public servants (in case we need to identify them in case of an accident, perhaps?) then this program will get stopped by their outrage.

     

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  17.  
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    Beta (profile), Aug 11th, 2011 @ 7:37am

    Re: Re: Re: Re: Can't have a proper police state without it.

    I was about to reply that I knew I couldn't ask for it, I just meant...

    Then I realized that I wasn't sure what I meant. Without a test, I'd have doubts about the lab results-- which is just what the defense would want. If the labs failed the test I would dismiss their results (and the testimony of any expert who vouched for them), but if they passed I'd trust that evidence, so maybe doing the tests would be a bad bet for the defense.

    The prosecution could arrange the test (if they actually thought the lab didn't fiddle the results), but at best that would convince a skeptic like me at the cost of raising doubts in the minds of more typical jurors, reminding them that lab results can be false...

    Just thinking about lawyers makes me think this way.

     

    reply to this | link to this | view in thread ]


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