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posted by n1 on Friday February 20 2015, @03:19AM   Printer-friendly
from the staying-home dept.

An EFF brief to Supreme Court argues that the 4th amendment also protect people against warrantless DNA analysis.

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."

More details about the case and some relevant argumentation in (the lower) court from the UBalt law school's site:

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.

 
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  • (Score: 2) by frojack on Friday February 20 2015, @03:51AM

    by frojack (1554) on Friday February 20 2015, @03:51AM (#147262) Journal

    Why does it seem that these issues always get into court via some scumbag lowlife that is clearly guilty.

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  • (Score: 5, Insightful) by Anal Pumpernickel on Friday February 20 2015, @04:06AM

    by Anal Pumpernickel (776) on Friday February 20 2015, @04:06AM (#147265)

    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

    by c0lo (156) Subscriber Badge on Friday February 20 2015, @04:06AM (#147266) Journal

    Why does it seem that these issues always get into court via some scumbag lowlife that is clearly guilty.

    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™"?)

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  • (Score: 0) by Anonymous Coward on Friday February 20 2015, @04:14AM

    by Anonymous Coward on Friday February 20 2015, @04:14AM (#147267)

    Selection bias.

  • (Score: 5, Insightful) by Whoever on Friday February 20 2015, @04:27AM

    by Whoever (4524) on Friday February 20 2015, @04:27AM (#147269) Journal

    The trouble with fighting for human freedom is that one spends most of one’s time defending scoundrels. For it is against scoundrels that oppressive laws are first aimed, and oppression must be stopped at the beginning if it is to be stopped at all.

                    — HL Mencken

  • (Score: 3, Insightful) by bradley13 on Friday February 20 2015, @07:44AM

    by bradley13 (3053) on Friday February 20 2015, @07:44AM (#147307) Homepage Journal

    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.

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  • (Score: 2) by JeanCroix on Friday February 20 2015, @02:53PM

    by JeanCroix (573) on Friday February 20 2015, @02:53PM (#147414)
    The name Larry Flynt instantly comes to mind...