Federal Judge rules ok for cops to take DNA in felony arrests
 

In the first case of its type, a federal judge in California has ruled that police can forcibly take DNA samples, including drawing blood with a needle, from Americans who have been arrested but not convicted of a crime.

U.S. Magistrate Judge Gregory Hollows ruled on Thursday that a federal law allowing DNA samples upon arrest for a felony was constitutional and did not violate the Fourth Amendment's prohibition of "unreasonable searches and seizures."

Hollows, who was appointed by President George H.W. Bush, said the procedure was no more invasive or worrisome than fingerprinting or a photograph. "The court agrees that DNA sampling is analogous to taking fingerprints as part of the routine booking process upon arrest," he wrote, calling it "a law enforcement tool that is a technological progression from photographs and fingerprints."

"The invasiveness of DNA testing is minimal," Hollows wrote (PDF). "The DNA can be taken by an oral swab, and even blood tests have been held to be a minimal intrusion."

"We are very gratified with the ruling," Lawrence Brown, acting U.S. attorney for the Eastern District of California, said in a statement. It also said that the U.S. Department of Justice "exercised its authority under the statute earlier this year and issued direction to various federal agencies to begin collecting the DNA of individuals who are arrested or facing charges, as has historically been the case with the collection of fingerprints."

A bill that President Bush signed in January 2006 said any federal police agency could "collect DNA samples from individuals who are arrested." Anyone who fails to cooperate is, under federal law, guilty of an additional crime.

In addition, federal law and subsequent regulations from the Department of Justice authorize any means "reasonably necessary to detain, restrain, and collect a DNA sample from an individual who refuses to cooperate in the collection of the sample." The cheek swab or blood tests can be outsourced to "private entities."


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Good Job, Federal Judges! We will make it harder and harder for someone to get away with criminal activity if we can build a national database of DNA signatures. I wouldn't care if my DNA was in the system....I don't plan on offing anyone anyway!

Never say never!! LOL

This ruling will last as long as no one gets infected (or claims to get infected) by a needle...hehehe.

(yes they had better use sterilized needles! and only once!)

Now supposed the police has to use reasonable force to get DNA...how will that go over?

Which IMO iis only a matter of time: "Not as invasive" as fingerprinting my left foot.

I don't like it, but whatever. I'm not planning on committing a felony nor am I planning on being mistaken for someone who committed a felony.

Oh yes...that will be wonderful...a new way to take your DNA without your consent...

"You fit the description."

Makes me really nervous now.

Beats the hell out of relying on eye witness identifications in cross-racial identifications. I don't think someone in police custody for a felony (or even a misdemeanor) has a right to privacy concerning their DNA. The police are allowed to take blood for such crimes, so they might as well be able to look at it, index it, etc.

All the better to keep dangerous people from committing crimes.

I don't disagree with the concept here, but anything in the ballpark of "it doesn't matter if you have nothing to hide" in re: privacy or police activity scares the crap out of me.

This is really exactly on the fence, for me - how far are we from a national DNA database? Then how far are we from a national birth defect susceptibility database? Then how far from a national HPV database? Then . . .

I have concerns about this from a privacy perspective, in that I think it's difficult to put together one of these databases and ensure privacy. It sounds like a good idea in the abstract, but I'd be interested to see what safeguards would be set up for something like this.

Exactly. I don't like it but it's not something I'm going to get heated about.

What exactly is your fear from a privacy perspective? At this point, your DNA can't say too terribly much about you since science has yet to unravel what all of our genes do. I think is a stretch to say that we'll start looking for genetic defects or genetic susceptibilities from this data. That kind of research is way in the future and so expensive as to be impossible for the government to undertake anytime soon. We already have protections against discrimination based on genetic data.....I feel pretty safe.

-How far is "WAY" into the future? What's the fastest way to make something inexpensive? (HINT: It may just be the government needing it)

-Also, you vastly underestimate the amount of data that can be extracted from genetic information, but that's really not important to your argument.

-Remember, no matter how far ahead . . . they'll still have the data, so if it's an eventuality (and it is) then it will . . . eventually happen.

-It's not just the DNA in a blood/tissue sample - there's more in there. They can keep the blood, look for anything else, etc. Liver failure? It's there, the police know. Why? They don't need that information.

-"I didn't do anything wrong so why should I care?" is still an abhorrent justification, hence the worry.

I'm not sure I have a problem with this on a substantive level, but it starts to edge into worrisome territory when we play that card.

To me, that seems kind of like saying "the police can come in without permission and search my house anytime they have a mind to. I'm not guilty of anything."

There's a reason that our Founding Fathers didn't want a government that powerful.

Drawing blood can be very evasive and painful. If a person has veins that "roll" like mine do, then getting blood drawn can cause bruising all up and down the arm, and cause the person who is drawing the blood to have to stick you multiple times. *shudders* last time I had blood drawn it took 3 tries and I ended up looking like something had happened to my arm.

I can see some benefits not related to "perps" such as helping to identify Jane and John Does or in mass disasters such as the events of September 11th and any time bodies are found with no way to figure out who they are or who the next of kin is. From my perspective having that could help contemporary Native Americans have their remains handled in accordance to their cultural ways, or in the case of potential organ donation contact relatives faster to help for the greater good.

But it also could easily be used against people. If someone got a hold of some of my hair, and considering I shed a lot it wouldn't be hard, could place it at crime scenes and then I'm in a buttload of trouble.

So much for "presumed innocent until proven guilty."

I'm not willing to allow the government any more control than it already has. If that means I die unidentified, so be it.

This seems really problematic to me, that they can take DNA on the mere suggestion that a person has committed a crime. It is an invasion of privacy, and it is all to easy for the police to have cases of "mistaken" identity.


I hope that it will be appealed.

This is only sort of related and kind of dumb at that, but why isn't submitting DNA regarded as a form of required self-incrimination in the cases where it does match? Is it because it's not testimony? (have we talked about this before?)

It also seems, as Vandal Squirrel gets at, that CSI, Forsensic Files and shows them kind of train criminals how to scientifically manipulate crime scenes. DNA as a crime related tool may not remain as useful. On the other hand, CSI and TV shows misrepresent the nature of most crimes, so who knows?

Assuming that these samples are saved in a database, which the OP doesn't really address:

Maybe the database could be required to be narrow in the information that it stores. Surely, there'd be levels of detail that could be useful for identifying people but not enough to create a true medical profile, right?

Maybe there's also a way to legally limit what the database can be used for in particular cases. I'm not sure that because you've been arrested for a particularly crime that your DNA should matched against all open crimes or stored forever. I might be okay with that post conviction, though.

Perhaps Congress and the states need to address how DNA evidence can be admissible in the criminal prosecution process, address it in the Federal Rules of Evidence and the state statutes.

For example, DNA evidence standing alone, without any corroborating evidence, IMHO, should not be admissible by the state (but should be admissible by the defendant at any time, before or after the trial), but should be able to be used as probable cause to find evidence. I do agree that the rules could use some 'tightening up' so as to let DNA evidence find its proper place in civil and criminal trials. Off the top of my head, those are a couple areas I believe the nation's legislators need to look at, but I doubt they will because the police will bitch and moan about being deprived of important tools for prosecuting criminals.

Is it addressed at all in the Federal Rules of Criminal Procedure? I'm taking Crim Pro next summer session (as well as a law and forensic science class with Dr. Henry Lee in the fall), so I suppose I'll find out then...

In all seriousness, find out

I dunno... I'm studying for the Bar right now and as far as I know, the Federal Rules of Criminal Procedure ain't on it... My state hasn't addressed it as far as I know, but I've never worked on a criminal case in my life, so it beats the hell out of me.

Wow.

You might die unidentified, but if any of your relatives commit a crime you could stop being a Jane Doe.

How do you feel about information taken from people in certain jobs, say working with kids and fingerprinting them or people who work in casinos, do you think that gives the government too much control?

Was the "wow" because I spelled "Forensic" so badly? Haha...

Yeah, it sounds like we have about the same criminal law experience; I figured FRCP was a shot in the dark, but like you I would assume there have to be rules for it somewhere.

I think you already know it wasn't spelling related, but the "wow" was because I assumed that you're talking about true crime TV forensic rock star Henry Lee.

(Actually, while I appreciate his awesomeness and all, I actually don't like watching him that much. I've never even seen his show. I probably wouldn't enjoy a class with him for a lot of reasons.)

At the very least, it should be an interesting class; it's being co-taught by him, the executive director of his institute, and a trial court judge who has a reputation as a pretty brilliant guy.

I'm not planning on going into criminal law, but it seemed like too good of an opportunity to pass up, and other people who took the class gave it great reviews.

Oh, I agree. And the three teacher combo sounds even better. It's got to be good to know even if you really don't ever use it in court.