Tag Archives: 4th Amendment

Two Sides of the Issue

The question of DNA testing is evidently coming before the Supreme Court this year. The issue is whether taking DNA from someone who has not been convicted of a crime is a violation of that person’s constitutional right to privacy, to bodily integrity.

You would think that a committed civil libertarian would be opposed to this practice, and perhaps if I knew more about the various situations in which the DNA is collected, and the arguments against its use, I would be. But I am very conflicted.

Unlike fingerprints, which are notoriously unreliable, DNA samples analyzed correctly are accurate. Because they are accurate, they prove innocence as well as guilt–DNA evidence has exonerated literally hundreds of people serving time for crimes they did not commit. It has saved countless others the trauma and expense of trials.

Furthermore, the procedures used to collect DNA are not particularly invasive. Typically, a quick swab of the inside of one’s cheek is all that is required–no more time-consuming than rolling fingers in ink and placing them on a surface capable of accepting the transfer, and barely more intrusive.

That said, there’s a legitimate concern that information from DNA and other identity markers can be abused. An effort to collect DNA from the citizenry at large would constitute serious overreach; it would tempt unethical officials to misuse the information, and identity thieves to steal it.

But what about routinely taking DNA samples from people who are arrested? The argument is that a national DNA bank would allow authorities to solve crimes like rape much more quickly, arguably preventing perpetrators from committing additional crimes before getting caught.

The 4th Amendment was crafted long before modern technology; we have to look to its purpose to determine how it should apply to these modern scientific marvels at our disposal. If taking someone’s DNA is a “search,” what is the probable cause, the legal justification, for that search? Can an arrest for some minor infraction provide that justification? Probably not.

I welcome comments and lessons from readers who know more about this issue than I do, because I see both sides of the argument. The positive results of expanded testing would seem to outweigh the negatives, but–especially in Constitutional law–the ends cannot justify otherwise forbidden means.

There are some very good lawyers who comment on this blog from time to time. I need your help now! What am I missing?

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Law and Order

Well, I certainly feel safer now that the Supreme Court has handed down its decision in Florence v. Burlington.

The issue in this case was whether jail officials have the right to strip-search anyone and everyone who is arrested, no matter what the charge and no matter the presence or lack of probable cause to believe the “strip-ee” possesses contraband or a weapon. The plaintiff in the case had been arrested for non-payment of a traffic ticket; it later turned out that he had paid his ticket, but due to a computer error, the payment wasn’t documented. (Governor Daniels can surely relate–those pesky computer errors have been cropping up with annoying frequency in his administration lately!)

According to the case syllabus,

“petitioner, like other arriving detainees, had to remove his clothing while an officer looked for body markings, wounds, and contraband; had an officer look at his ears, nose, mouth, hair, scalp, fingers, hands, arm- pits, and other body openings; had a mandatory shower; and had his clothes examined. Petitioner claims that he was also required to lift his genitals, turn around, and cough while squatting.”

The Court ruled 5-4 that authorities could lawfully require a person accused only of an unpaid traffic citation to submit to this process.

You can bet I won’t be jaywalking any time soon!

As Justice Breyer wrote in his dissent,

“In my view, such a search of an individual arrested for a minor offense that does not involve drugs or violence—say a traffic offense, a regulatory offense, an essentially civil matter, or any other such misdemeanor—is an “unreasonable search” forbidden by the Fourth Amendment, unless prison authorities have reasonable suspicion to believe that the individual possesses drugs or other contraband. And I dissent from the Court’s contrary determination.”

The majority placed a lot of emphasis on–and expressed sympathy for–the difficulties involved in running a penal institution. As a result, the Justices were unwilling to require those in charge to make initial distinctions–that is, to determine the presence or absence of probable cause sufficient to justify a bodily search of this magnitude.

But that is precisely what the 4th Amendment requires of government.

The prohibition against unreasonable searches doesn’t include a caveat for inconvenience or difficulty. And really, how threatening is a guy who’s been hauled in for an unpaid traffic ticket? If jail authorities can’t distinguish between an arrest for a traffic violation and one for theft or armed robbery, we have a lot bigger problem than strip searches.

A quick look at the breakdown of the Justices in the majority and minority certainly confirms the old saying that elections have consequences. We all need to “remember in November.”

And meanwhile, whatever you do, don’t cross against the light!

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