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An EFF brief to Supreme Court argues that the 4th amendment also protect people against warrantless DNA analysis.
More details about the case and some relevant argumentation in (the lower) court from the UBalt law school's site:EFF is asking the Supreme Court to hear arguments in Raynor v. State of Maryland, a case that examines whether police should be allowed to collect and analyze "inadvertently shed" DNA without a warrant or consent, such as swabbing cells from a drinking glass or a chair. EFF argues that genetic material contains a vast amount of personal information that should receive the full protection of the Constitution against unreasonable searches and seizures.
"As human beings, we shed hundreds of thousands of skin and hair cells daily, with each cell containing information about who we are, where we come from, and who we will be," EFF Senior Staff Attorney Jennifer Lynch said. "The court must recognize that allowing police the limitless ability to collect and search genetic material will usher in a future where DNA may be collected from any person at any time, entered into and checked against DNA databases, and used to conduct pervasive surveillance."
Raynor is a case of first impression, or a legal case in which there is no binding authority on the matter in dispute.
The matter involves a two-year-old rape case. After 22 suspects were eliminated, the victim thought of Glenn Joseph Raynor. When Raynor told police he had nothing to do with a rape, they told him to give them a DNA sample. He stated he would do so if they could assure him his DNA would not go into a database. When police told him his DNA would go into a database, he refused to give a sample. Police then asked to talk with Raynor, who complied. After the conversation, as soon as Raynor left the police barracks, police swabbed the chair where he had been seated, obtained a DNA sample, analyzed it without a warrant and made a match. Raynor was convicted in the rape.
...
The state argued that Raynor abandoned his DNA. Warnken countered that the court had held, in two previous cases, that abandonment requires a volitional, intentional act and that Raynor’s automatic and involuntary shedding of skin cells was not a volitional act.
The state also argued that DNA was just like fingerprints and that there is no reasonable expectation of privacy in fingerprints. Warnken noted that neither the Supreme Court nor Maryland courts had ever ruled on whether there is a reasonable expectation of privacy in fingerprints. Moreover, he argued that society is significantly more willing to recognize a reasonable expectation of privacy in the intimate details of one’s genetic makeup than in one’s fingerprints.
The state argued that, even if there is a reasonable expectation of privacy in DNA, making the Fourth Amendment applicable, the state could validly cross that line in this case because police had reasonable articulable suspicion of criminal activity. The state argued reasonable suspicion based on a combination of factors: 1) Raynor and the victim lived in same house many years apart; 2) Raynor and the victim attended the same school many years apart; 3) Raynor was married and the victim’s assailant wore a wedding ring; 4) Raynor fit the assailant’s general description; and 5) Raynor had a metallic smell and the assailant had a metallic smell.
Warnken argued that these five factors create no more than a hunch and do not create reasonable articulable suspicion of criminal activity. Moreover, Warnken argued that reasonable suspicion is constitutionally inadequate because police must have probable cause and a warrant.
The state also argued that, even if Raynor prevailed on the merits of the case, the evidence was admissible nonetheless. The state said the rule that excludes unconstitutionally obtained evidence does not apply when police have a good-faith belief in the constitutionality of their conduct. Warnken argued the court had filed an opinion in 2013 that made clear that the police are not excused from unconstitutional conduct when the law is uncertain and there is no case expressly forbidding their unconstitutional conduct. Instead, the standard is that police conduct is excused only when there was case authority expressly authorizing such police conduct and the court later changed its position regarding that authorization.
(Score: 2, Insightful) by Anonymous Coward on Friday February 20 2015, @03:37AM
"The state said the rule that excludes unconstitutionally obtained evidence does not apply when police have a good-faith belief in the constitutionality of their conduct."
You may have completely violated the constitution, but you say you had Good Faith that your actions were constitutional. Therefore, it's not a problem that the constitution was violated, and the evidence is magically admissible. And I instantly take you at your word that you had Good Faith that your actions were alright.
What could go wrong?
Instead, the standard is that police conduct is excused only when there was case authority expressly authorizing such police conduct and the court later changed its position regarding that authorization.
Well, that standard is garbage. Courts rule some pretty silly things at times, and police shouldn't be excused from violating the constitution when that happens. If the courts wake up and realize the police collected evidence unconstitutionally, then it shouldn't be admissible, regardless of past rulings.
(Score: 3, Interesting) by frojack on Friday February 20 2015, @04:33AM
You may have completely violated the constitution, but you say you had Good Faith that your actions were constitutional. Therefore, it's not a problem
Its not that simple. (and I suspect you know that).
If it can be shown that the department was in fact aware of the violation, or had training concerning it, or had cases dismissed because of it, or had heard of the violation or had their District Attorney advise them of it, the cops can not claim good faith.
Since heretofore evidence collection in that way was commonly used on discarded objects (abandonment via a volitional, intentional act).
The difference in this case: The police invited him into a "clean room" situation knowing that he would shed cells. He volunteered (volitional, intentional act) to come in for an interview. (After already being made aware that he was under suspicion - Dumb!).
So the ruse, at the time, was constitutional, and the police could claim good faith. (In, truth, I suspect they knew they were pushing the envelope. There had to have been a better way.)
No, you are mistaken. I've always had this sig.
(Score: 0) by Anonymous Coward on Friday February 20 2015, @04:51AM
Its not that simple. (and I suspect you know that).
The specifics do not matter, as the logic itself is ridiculous. I don't care about their faith, good or not; if what they did was indeed unconstitutional, then they should not be let off.
He volunteered (volitional, intentional act) to come in for an interview.
Volunteering to do A != also volunteering to do B. You just volunteered to A. You sure as hell didn't volunteer to surrender your DNA to them just because you were in a specific location, something which you don't think about and have little control over.
I agree, people need to be educated so that they don't deal with government thugs in a way that puts them in danger (that don't talk to cops video would be a good start), but that's besides the point.
So the ruse, at the time, was constitutional
At the time? That makes no sense, as constitutionality does not change except when the constitution is amended. I suspect you're going to appeal to the courts, but they only interpret the constitution (or they should); they cannot change it.
And no, it wasn't, for reasons the summary lays out already. The government's arguments show them to be, as usual, anti-freedom and illogical.
(Score: 1, Insightful) by Anonymous Coward on Friday February 20 2015, @05:02AM
Indeed. A few decades back, when I were a little lad, the common refrain was "ignorance of the law is no excuse." (Often uttered by cops, no less.) The truly terrifying thing is that the police are apparently claiming to be ignorant of basic constitutional rights! Could somebody please explain why these guys are even on the police payroll?
(Score: 2) by frojack on Friday February 20 2015, @03:51AM
Why does it seem that these issues always get into court via some scumbag lowlife that is clearly guilty.
No, you are mistaken. I've always had this sig.
(Score: 5, Insightful) by Anal Pumpernickel on Friday February 20 2015, @04:06AM
Our commitment to our constitution and liberties is tested not when everything is peaceful, but when we are in danger. The 9/11 terrorist attacks just proved yet again that we didn't care about freedom, and if we turn our backs on the 'clearly guilty', that will demonstrate the same thing. It's usually 'guilty' people whose freedoms are attacked first, and if the government wins, they will start attacking even larger groups. We can't let them violate anyone's rights.
As for "always," that's not even necessarily true to any significant extent. Maybe it's just that these cases usually get more publicity to rile up the overly emotional public, perhaps as a way to manipulate them into turning their backs on freedom.
(Score: 4, Insightful) by c0lo on Friday February 20 2015, @04:06AM
Maybe because we aren't yet in the situation in which the system is that f***ed up that innocent suffer (would you like to live those times?).
Or maybe it is to keep us remembering the words "It is better that ten guilty persons escape than that one innocent suffer" (nose holding or not, you reckon that's a "bad thing™"?)
https://www.youtube.com/watch?v=aoFiw2jMy-0 https://soylentnews.org/~MichaelDavidCrawford
(Score: 2) by SecurityGuy on Friday February 20 2015, @05:47PM
Yes, we do.
http://thearsonproject.org/case-studies/todd-willingham/ [thearsonproject.org]
(Score: 0) by Anonymous Coward on Friday February 20 2015, @04:14AM
Selection bias.
(Score: 5, Insightful) by Whoever on Friday February 20 2015, @04:27AM
(Score: 3, Insightful) by bradley13 on Friday February 20 2015, @07:44AM
Lowlife? What are the chances that the guy really is guilty? Consider the other evidence they had: he lived in the same house she did, but not at the same time. He went to the same school she did, but again, not at the same time. He had a "metallic" smell, and so did the assailant - huh? - how subjective is that? Really, the entire conviction relies on the DNA evidence. What are the chances that the skin cells swabbed off of that chair were uncontaminated by any other DNA (especially the person doing the swabbing), and were properly handled thereafter? I wouldn't be so sure of this guy's guilt...
One forgets just how unreliable the standard DNA analysis is. Only a few markers are analyzed, and a match doesn't have to be (and rarely is) exact. Consider the birthday game: there are 365 days in a year, and yet only about 20 people in a room is enough to give a 50-50 chance of a match, i.e., nearly 50% false positives. What level of false positives are acceptable in DNA analysis?
Add the possibility of contamination or other handling errors, and the rate can be quite high, by some accounts easily reaching 1:10 or 1:20. Here's a paper discussing the problem. They note that DNA evidence used to be used only to confirm other strong evidence. However, because people believe DNA analysis is so good (even though it really isn't), it is increasingly being used directly to convict. [nfstc.org] In their conclusion, they say:
"Particularly in cases in which there is little other evidence against the suspect, ignorance of the true probability of error creates a disturbing element of uncertainty about the value of DNA evidence."
Even if we completely eliminate the possibility of handling errors, if you build a database of millions of samples, you will still have false positives.
Everyone is somebody else's weirdo.
(Score: 2) by frojack on Friday February 20 2015, @09:06PM
The birthday game? You're going with that?
The match was a 13 CODIS loci match. Nobody is contesting the match! Nobody!
Having Lived long ago in the same house means he had a key, or knew a way in.
It does NOT mean that his skin cell fell from a door frame and accidentally landed in the victims vagina!
If any two samples have matching genotypes at all 13 CODIS loci, it is a virtual certainty that the two DNA samples came from the same individual (or an identical twin). 1 in 7.7 quadrillion Caucasians (1 in 7.7 times 10 to the 15th power! [arizona.edu]
You want to play birthday against 7.7 quadrillion?
Your citation refers to errors, contamination, or foul play incidents. Nobody is claiming any of those. Its not an issue in this case.
No, you are mistaken. I've always had this sig.
(Score: 2) by JeanCroix on Friday February 20 2015, @02:53PM
(Score: 2) by wantkitteh on Friday February 20 2015, @09:16PM
Remember that bit when they go over the crime scene with a vacuum, hoovering up all the dead skin, dropped hair and fingernails, giving them DNA of everyone who'd been there in a generic dragnet - how easy it world be to place someone at the scene in the minds of the police, just steal their comb and their loofer, shake them out as you leave the scene... But back to reality.
However effective a tool DNA testing is, those who use it must understand its limitations. After all these years, they still don't. Remember that story about those completely unconnected crimes that the same DNA kept showing up at, eventually determined to be contamination by a worker in the swab factory? (Or whatever, I forget the details) Investigators were scratching their heads for ages over that, simply because the tools and databases in place weren't designed with picking up that kind of false positive in mind, or so it seems. Extending the application of DNA testing will throw up more procedural problems very quickly, yet police are still in the mindset that it's incontrovertible. Let's hope this is all considered before these procedures are rolled out, but during a global recession doesn't seem a good time to try.