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: 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?