{"id":1315,"date":"2013-06-05T12:15:41","date_gmt":"2013-06-05T17:15:41","guid":{"rendered":"https:\/\/iowappa.com\/?p=1315"},"modified":"2013-06-05T12:16:23","modified_gmt":"2013-06-05T17:16:23","slug":"tony-and-the-women","status":"publish","type":"post","link":"https:\/\/iowappa.com\/?p=1315","title":{"rendered":"A Horrible Decision"},"content":{"rendered":"

\"webeagle\"<\/a>It\u2019s one of those United States Supreme Court cases in which you want to read the dissent before the actual opinion.<\/span>\u00a0 <\/span>In <\/span><\/span>Maryland v. King<\/span><\/a>, that\u2019s exactly what I did.<\/span>\u00a0 <\/span>Associate Justice Antonin Scalia wrote the dissent, and was joined by Justices Ginsberg, Sotomayor, and Kagan \u2013 the Court\u2019s three female members.<\/span>\u00a0 <\/span><\/span><\/p>\n

Maryland v. King<\/span><\/a> is an opinion that allows law enforcement agencies to collect DNA from people who have been arrested.<\/span>\u00a0 <\/span>Many states, including Iowa, allow for the collection of DNA after a person has been convicted of a certain crime, but twenty-eight states and the federal government allow for the collection upon arrest.<\/span>\u00a0 <\/span>On Monday, the Court said it was constitutionally okay to take a sample of \u201cskin cells\u201d.<\/span>\u00a0 <\/span>They might just as well take an arm or a leg, your heart, your brain, or your medical records.<\/span>\u00a0 <\/span>The majority opinion in the case adds credence to the phrase \u201cif you\u2019ve done nothing wrong, you\u2019ve nothing to fear\u201d.<\/span>\u00a0 <\/span>That is not the way America works, or the way it used to work.<\/span>\u00a0 <\/span>That\u2019s where I give credit to my Eighth Amendment (the death penalty is NOT cruel and unusual punishment) nemesis, Justice \u201cTony\u201d Scalia.<\/span><\/span><\/p>\n

Justice Scalia\u2019s first paragraph in his dissent is simple and brilliant.<\/span><\/p>\n

The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incrimi\u00adnating evidence. That prohibition is categorical and with\u00adout exception; it lies at the very heart of the Fourth Amendment. Whenever this Court has allowed a suspi\u00adcionless search, it has insisted upon a justifying motive apart from the investigation of crime.<\/span><\/p>\n

We have said this before in previous blogs:<\/span><\/p>\n

Guilty Until Proven Innocent <\/span><\/a><\/p>\n

DNA:<\/span>\u00a0 <\/span>Modern Day Fingerprints?<\/span><\/span><\/a><\/p>\n

The majority opinion really misses the boat.\u00a0<\/span> Justice Kennedy acknowledges that collecting DNA is a Fourth Amendment search. \u201cIt can be agreed that using a buccal swab on the inner tissues of a person\u2019s cheek in order to obtain DNA samples is a search. Virtually any \u201cintrusio[n] into the human body\u201d will work an invasion of \u201c\u2018cherished personal security\u2019 that is subject to constitutional scrutiny.\u201d<\/span>\u00a0 He got that right, but then he went on to use examples.<\/span>\u00a0 \u201cThe Court has applied the Fourth Amendment to police efforts to draw blood,. . . scraping an arrestee\u2019s fingernails to obtain trace evidence, and even to \u201ca breathalyzer test, which generally requires the production of alveolaror \u2018deep lung\u2019 breath for chemical analysis\u201d<\/span>\u00a0 What he failed to grasp was the difference of circumstances. His examples have one thing in common.<\/span>\u00a0 The drawing of an arrestee\u2019s blood, scraping fingernails, and using breathalyzers are evidence-acquiring techniques that are used on a person who is a suspect of a \u201ccertain\u201d crime in the present time.<\/span>\u00a0 The difference between these Fourth Amendment searches and DNA searches for arrestees is that the DNA searches are not connected to the crime before law enforcement.<\/span>\u00a0 The evidence obtained has nothing to do with solving the crime for which the arrestee is facing charges.<\/span>\u00a0 <\/span><\/span><\/p>\n

Some may claim that the collection of fingerprints is the same thing.\u00a0 It\u2019s not.\u00a0 DNA is your family history.\u00a0 As Stephanie wrote in a previous blog, \u201cFingerprints and DNA are very different.\u00a0 DNA can be inadvertently transferred from one location to another; fingerprints cannot. DNA has a genetic link.\u00a0 Fingerprints do not.\u201d\u00a0And although it\u2019s possible to have two people in the entire world have identical fingerprints, those two people may be on different continents, be of diverse cultures and races, and have absolutely nothing in common.\u00a0 As for DNA, the person with a match closest to yours is most likely a sibling.\u00a0 And twins often do have the same DNA.\u00a0 Yeah, it\u2019s different.<\/span><\/p>\n

We can expect bills next year by the Attorney General, county attorneys, and quite possibly the huge brood of law enforcement lobbying groups, to expand the already expanded list of eligible felons and misdemeanants who have been arrested for a crime to submit to the buccal swab.<\/span><\/p>\n

\u00a9 Copyright 2013.<\/span>\u00a0 Fawkes-Lee & Ryan.<\/span>\u00a0 All rights reserved.<\/span><\/span><\/i><\/p>\n","protected":false},"excerpt":{"rendered":"

On Monday, the Court said it was constitutionally okay to take a sample of \u201cskin cells\u201d. They might just as well take an arm or a leg, your heart, your brain, or your medical records. Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"open","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[42,264,17,56],"tags":[180,234,233,512,239,365,511],"class_list":["post-1315","post","type-post","status-publish","format-standard","hentry","category-criminal-justice","category-fairness","category-issues","category-privacy","tag-dna","tag-fourth-amendment","tag-justice-ginsburg","tag-justice-kagan","tag-justice-scalia","tag-justice-stotomayor","tag-maryland-v-king"],"_links":{"self":[{"href":"https:\/\/iowappa.com\/index.php?rest_route=\/wp\/v2\/posts\/1315","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/iowappa.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/iowappa.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/iowappa.com\/index.php?rest_route=\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/iowappa.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=1315"}],"version-history":[{"count":2,"href":"https:\/\/iowappa.com\/index.php?rest_route=\/wp\/v2\/posts\/1315\/revisions"}],"predecessor-version":[{"id":1317,"href":"https:\/\/iowappa.com\/index.php?rest_route=\/wp\/v2\/posts\/1315\/revisions\/1317"}],"wp:attachment":[{"href":"https:\/\/iowappa.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=1315"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/iowappa.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=1315"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/iowappa.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=1315"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}