Supreme Court Will Review Md. DNA Law

[Wizard777]

Supreme Court will review Md. DNA law

Maryland's DNA law, which allows police to take samples of suspects' genetic material for possible matches to other crimes, will be reviewed by the U.S. Supreme Court next year, the justices announced Friday.

The law, a signature crime-fighting initiative of Gov. Martin O'Malley, was ruled unconstitutional by Maryland's highest court in April. But in July, U.S. Chief Justice John G. Roberts Jr. issued an order allowing police to continue collecting DNA samples, signaling that the high court would ultimately weigh in on the issue that has pitted law enforcement interests against privacy concerns.

On Friday, the Supreme Court announced it would hear Maryland v. King, a case that stems from a previously unsolved 2003 rape case in Salisbury. When a DNA sample was taken from Alonzo Jay King Jr. after an arrest on unrelated assault charges in 2009, it was used to convict him of the earlier crime. Saying the use of King's DNA violated his rights, the Maryland Court of Appeals overturned his conviction in April and sent the case back to trial court.

[Wizard777]

I think Marylands High Court made the right decision. This law forms a run around Article 26 (MDC) and the Fourth Amendment (USC) on the way to a fishing expedition. Without this law the police would have to have articulable Probable Cause to obtain a warrant to serach for and seize evidence. This law eliminates the Constitutional warrant requirement to search for and seize DNA evidence of violent crimes. The fishing expedition is the fact that at the time the evidence is being searched for and seized the police have no idea what crime this evidence is connected to, if any. So nevermind Probable Cause. They don't even have reasonable suspicion in relation to any particular or specific crime or case. At the absolute best they merely have a suspicion that he might have committed some other crime also.

[Lawman 27]

I think Marylands High Court made the right decision. This law forms a run around Article 26 (MDC) and the Fourth Amendment (USC) on the way to a fishing expedition. Without this law the police would have to have articulable Probable Cause to obtain a warrant to serach for and seize evidence. This law eliminates the Constitutional warrant requirement to search for and seize DNA evidence of violent crimes. The fishing expedition is the fact that at the time the evidence is being searched for and seized the police have no idea what crime this evidence is connected to, if any. So nevermind Probable Cause. They don't even have reasonable suspicion in relation to any particular or specific crime or case. At the absolute best they merely have a suspicion that he might have committed some other crime also.

Hi Wiz,

Let me ask you...

Couldn't you argue that fingerprinting a suspect when he/she is arrested would be a violation of those same rights?


For my own opinion (and this is just me) I think Maryland's Courts go on 'fishing expeditions' to look for any reason at all to throw out a conviction.

[Wizard777]

Hi Wiz,

Let me ask you...

Couldn't you argue that fingerprinting a suspect when he/she is arrested would be a violation of those same rights?


For my own opinion (and this is just me) I think Maryland's Courts go on 'fishing expeditions' to look for any reason at all to throw out a conviction.

This is not fingerprints. Fingerprints can't reveal familial information. Also taking fingerprints does not involve a search of the person. When you go inside of a persons body to obtain evidence. The Courts deem that to be an invasive search of the person.

You also have the slippery slope. So fingerprints and DNA are just a means of identifying a person. So is their signiture. So why not just collect DNA at a traffic stop instead of having them sign a ticket? How can you allow a murderer or rapist to just drive away from a traffic stop without linking their name and face to a DNA profile that will link them to their crimes? Sure you won't have them in custody when the test results come back. But you will be able to put a face and name to an unknown DNA profile. You'll know who to look for and that's more than you had before the traffic stop. Better yet why even wait for them to commit a crime. They take a newborn's footprints to ID them. Why not just take their DNA instead? Then you could have the DNA sitting in a database just waiting for baby to grow up and commit their first crime. Congratulations Mr. & Mrs. Doe! It's a suspect.

[Wizard777]

I'm anticipating this case to involve competing concepts. It's going to be ID v Search & Seizure. The State will argue that it's just an ID method and the defense will argue that it's a Search & Seizure of evidence. Since there is a claim of violation of a fundamental right. That will invoke strict scrutiny. That means the State will have to show that this is the least restrictive mean of achieving the compelling government interest to ID. They can use government issued ID or fingerprints to ID a person. But those less restrictive and less intrusive method's of ID will not match up to DNA evidence. So there goes the ID argument right out the window. It's now a strictly a Search & Seizure case. That same strict scrutiny should also shoot down compelling interest arguments that usually form exigent circumstances to the warrant Requirement. Like the destruction of evidence or no time to obtain a warrant etc. That's not going to hold up. The evidence they are seeking usually survives the destruction of the suspect possessing it. If it didn't this case would be a moot point.

The only thing that truly concerns me about this is that in the 20th century SCOTUS has interpreted the Fouth Amendment to the point of practically restoring the very thing it was meant to prohibit the use of. That's the Writ of Assistance. The Crown did consider that to be a most necessary and valuable crime fighting tool. This would be SCOTUS' wet dream in undermining the Fourth Amendment's protection. This law essentially forms a Writ of Assistance aka General Warrant issued without probable cause, without specifically naming persons and without expiration.

This would also set a dangerous precendt in Seperation of Powers. The legislature has issued a general warrant under the guises of law. But it is for all intents and purposes a general warrant. This is where the Legislature exceeds their authority. The authority over warrants is squarely and entirely in the domain of the courts. The dangerous precedent this sets is that if the Magistrates will not grant Law enforcement general warrants. Then law enforcement can go to the Legislature and have them issue the General Warrant under the guises of law.

[Omaha Beach]

I think Marylands High Court made the right decision. This law forms a run around Article 26 (MDC) and the Fourth Amendment (USC) on the way to a fishing expedition. Without this law the police would have to have articulable Probable Cause to obtain a warrant to serach for and seize evidence. This law eliminates the Constitutional warrant requirement to search for and seize DNA evidence of violent crimes. The fishing expedition is the fact that at the time the evidence is being searched for and seized the police have no idea what crime this evidence is connected to, if any. So nevermind Probable Cause. They don't even have reasonable suspicion in relation to any particular or specific crime or case. At the absolute best they merely have a suspicion that he might have committed some other crime also.

And what will you say Oliver Wendell when the SC holds, 5 to 4 to uphold the law. Ironic isnt it that lefties like OMalley and Gansler are counting on the 5 conservatives on the Court to back them up on this one.

[yuca]

This is not fingerprints. Fingerprints can't reveal familial information. Also taking fingerprints does not involve a search of the person. When you go inside of a persons body to obtain evidence. The Courts deem that to be an invasive search of the person.

You don't need to go "inside" of a person's body to obtain a DNA sample. If that were the case, no evidence would ever be left at a crime scene.

Your position is consistent with your other pro-crime views, so I'll give you some credit.

If the Supreme Court ever decides this case, I think it will be upheld.

[Wizard777]

And what will you say Oliver Wendell when the SC holds, 5 to 4 to uphold the law. Ironic isnt it that lefties like OMalley and Gansler are counting on the 5 conservatives on the Court to back them up on this one.

What is truly a shame is that the defense challenged the law as a violation of the Fourth Amendment. That gave SCOTUS jurisdiction. Had he challenged the law as a violation of Article 26 of the Maryland Constitution. Then as an issue of a State Statute being overturned by a State Constitution, SCOTUS would have had no jurisdiction. Actually the Maryland Constutution would have offered greater protections than the Fourth Amendment. Because this statute essentially forms a General Warrant and the Maryland Constitution specifically prohibits the use of General Warrants. The strongest hand of all would have been to challenge it as a violation of both Constitions. The actions of the police in seizing the evidence without a warrant violates the Fouth Amendment and the Statute it's self violates Article 26.

But like I said, the court is hard pressed to restore the Writ of Assistance.

[Wizard777]

This is a link to the Maryland High Courts decision. I must give you warning. The cites of other cases in which other courts have up held this as being merely for the purposes of identification is a convoluted collection of brain farts making for a tortured and grueling read. It frightens me that people that damned obtuse or downright stupid are allowed to put on a robe and decide rights that people have fought and died for.

This is how it works for the purposes of indentification.......or doesn't work as the case may be. The collect a DNA Sample from Bob Smith. That DNA Sample is then analysed to create a DNA Profile. That DNA Profile entered into the database and if there is a match a notification is sent. Niether the database nor the DNA profile contains any indentifying information like a name or picture. So how can this serve any valid identification purpose when any positive results provide no indentifying information. Never and at any time will this process tell the police that the person they have in custody is undeniably Bob Smith. It only tells them that the person they have in custody has committed other crimes. The must use other means to determine that the person they have in custody is undeniably Bob Smith. So this cannot possibly be an identification tool. So it must be an investigative tool to gather and analyse evidence.


ALONZO JAY KING, JR. v. STATE OF MARYLAND

[Wizard777]

Hi Wiz,

Let me ask you...

Couldn't you argue that fingerprinting a suspect when he/she is arrested would be a violation of those same rights?


For my own opinion (and this is just me) I think Maryland's Courts go on 'fishing expeditions' to look for any reason at all to throw out a conviction.

In reveiwing the decision I found a very interesting factoid. No court has ever made a determination on the Constitutionality of taking fingerprints in regards to the Fourth Amendment. That makes the case very interesting. Especially if Gansler asserts that this is no different than Fingerprinting. Because before the court could agree with that they would first have to make a determination on the Constitutionality of seizing a persons fingerprints. I would LMAO if SCOTUS decided police need a warrant for fingerprints and DNA.

But I think another area it will fail totality of circumstances is that a match to the DNA database only forms probable cause to get a warrant to obtain a second DNA sample. So if they didn't need a warrant for the first sample. Then why would they need a warrant for a second sample? So there seems to be an admission that a warrant is needed to obtain a sample. Also this is like the police searching your house without a warrant. Finding contraband and using that as probable cause to obtain a warrant to search for the contraband that they've already found.

[Wizard777]

I'm also highly impressed that Maryland's high court has found this to consist of not one but two searches. The first search is obtaining the sample. The second search is analysing the sample.

[Omaha Beach]

In reveiwing the decision I found a very interesting factoid. No court has ever made a determination on the Constitutionality of taking fingerprints in regards to the Fourth Amendment. That makes the case very interesting. Especially if Gansler asserts that this is no different than Fingerprinting. Because before the court could agree with that they would first have to make a determination on the Constitutionality of seizing a persons fingerprints. I would LMAO if SCOTUS decided police need a warrant for fingerprints and DNA.

But I think another area it will fail totality of circumstances is that a match to the DNA database only forms probable cause to get a warrant to obtain a second DNA sample. So if they didn't need a warrant for the first sample. Then why would they need a warrant for a second sample? So there seems to be an admission that a warrant is needed to obtain a sample. Also this is like the police searching your house without a warrant. Finding contraband and using that as probable cause to obtain a warrant to search for the contraband that they've already found.

So when the SC does rule in favor of upholding this law i guess you will continue your rant as to how you know more about Constitutional law than theJustices even though you never spent a day in law school.

[Wizard777]

So when the SC does rule in favor of upholding this law i guess you will continue your rant as to how you know more about Constitutional law than theJustices even though you never spent a day in law school.

I don't think they will. That would mean they are brain dead and Obama would have to fill the vacancies.

[Wizard777]

U.S. Supreme Court to hear arguments over Md. DNA case

In a Maryland case that's garnered the attention of the other 49 states, the federal Department of Justice and the national science community, the U.S. Supreme Court will hear arguments Tuesday over whether to restrict police in collecting DNA to solve crimes.

The justices will rule on a police practice common in Maryland: taking genetic information from individuals arrested — but not convicted — to link them to unsolved crimes. In the past, the court has acknowledged the power of DNA but has not allowed it to run afoul of fundamental American rights such as the Fourth Amendment's protection against unreasonable searches.

At the center of the case is a Salisbury man, Alonzo Jay King. Police took his DNA when he was arrested in 2009 on assault charges and linked him to the 2003 rape of a Wicomico County woman at gunpoint. King appealed his rape conviction, challenging the key DNA evidence.

[Wizard777]

Hi Wiz,

Let me ask you...

Couldn't you argue that fingerprinting a suspect when he/she is arrested would be a violation of those same rights?


For my own opinion (and this is just me) I think Maryland's Courts go on 'fishing expeditions' to look for any reason at all to throw out a conviction.

Now that all the information I've taken in on this has had a chance to digest. Allow me to give you a much simpler answer. No it would not be a violation of those same rights. Obtaining fingerprints does not involve a search or seizure of the person. The fingerprints exist on the outside of the body and are in plain view. It also doesn't involve an invasive proceedure. Also with fingerprints you are not taking any part of the persons body. You simply making a copy of the friction ridges using black printers ink. You are not taking the fingerprints or friction ridges themselves. They remain on the fingers. With DNA you are going inside the body to retrieve a part of the body.

[Wizard777]

This is where Ganslers aruement falls apart. Taking the DNA could not have been done for the purpose of identification. Because you must indentify the person before taking the sample. If you do not have an identity to attach to the sample. It is no more useful than an anonymous DNA sample obtained at a crime scene. If a DNA sample actually identified a person. Then all you would need is the sample obtained at the crime scene. The only thing the DNA test will tell you is that these samples match or these samples do not match. The test will never produce a name that you don't already have before taking the sample.

They are essentially conducting a search for evidence. One of the ways you can prove someone committed a crime is by matching evidence. The old match game. Someone leaves a bullet in a body at the crime scene. You have one half of the puzzle. You then need to match that bullet to a gun. The gun is the other half of the puzzle. If they match you have the murder weapon and you then have to connect the identity of a person to that gun. If you cando that you have the murderer. With DNA you have one half of the puzzle left at the crime scene. You then must find the other half that only the person who commited the crime possesses. So there is no getting around the fact that the police are searching for evidence of a crime that has been commited. So they will need probable cause to search for or seize that evidence.

[Wizard777]

This is very interesting.

Maryland wrote in its brief, "Indeed, even absent a Fourth Amendment seizure, a person has no right to refuse to disclose identifying physical traits" such as voice, handwriting or hair samples.

This is not a fourth amendment issue. This goes to the fifth amendment protection against self incrimination. So this could possibly even invoke Miranda v Arizona. The result of which is YOU have the right to remain silent. DNA is what makes you "YOU". It's what makes you uniquely "YOU". It is the source of your personality. So that begs the question exactly how much of "YOU" has that right to remain silent? DNA stores information and is capable of communicating that Information. It even has it's own four lettered alphabet by which it communicates encoded information. The DNA is subjected to and interrogation to answer a question. Have you commited other crimes? Becuse the DNA has no will to resist the interrogation it will produce testimony that amounts to and undeniable confession and self incrimination to which no words can dispute. I was there and I did it!

It appears that this would violate the spirit of the fifth amendment.

Thus, we may view the historical development of the privilege as one which groped for the proper scope of governmental power over the citizen. As a "noble principle often transcends its origins," the privilege has come rightfully to be recognized in part as an individual's substantive right, a "right to a private enclave where he may lead a private life. That right is the hallmark of our democracy." United States v. Grunewald

All these policies point to one overriding thought: the constitutional foundation underlying the privilege is the respect a government -- state or federal -- must accord to the dignity and integrity of its citizens. To maintain a "fair state-individual balance," to require the government "to shoulder the entire load," 8 Wigmore, Evidence 317 (McNaughton rev.1961), to respect the inviolability of the human personality, our accusatory system of criminal justice demands that the government seeking to punish an individual produce the evidence against him by its own independent labors, rather than by the cruel, simple expedient of compelling it from his own mouth. Chambers v. Florida

By involuntarily collecting DNA while a person is in custody to be used as evidence against them. The state is shifting it's from it's normal independant labors to the expediency of literally compelling incrimination from his own mouth. So this begs another question. Does the Fifth Amendment include the right to literally keep ones mouth shut to avoid self incrimination?

[ybnormal]

Repeal the death penalty. High-speed chases forbidden within the city. No more DNA evidence permitted. What's next, stripping law enforcement of their weapons? Only in thug-supporting Maryland...with one of the most violent cities in the country.

[Wizard777]

Repeal the death penalty. High-speed chases forbidden within the city. No more DNA evidence permitted. What's next, stripping law enforcement of their weapons? Only in thug-supporting Maryland...with one of the most violent cities in the country.

If the court overturns the law DNA will still be used as evidence. But only if it is properly obtained by a search warrant supported by probable cause. This amounts to a general search. They searching for and seizing what may or may not be evidence of a crime with no particulars about that crime what so ever. They can't tell you who the victim is or even what the crime is.

Even with the law. If the police suspect Martin O'Malley of a rape or murder and they can't find a way to arrest him for a felony or attempting to commit a felony. Then they would need to get a search and seizure warrant to obtain his DNA without his consent. What this law essentially says is if are arrested for a felony or attempted felony. Even though you are only accused of a crime you lose this fourth amendment right based on that accusation. Even with a search incident to arrest. They have to get a warrant to stick things in your nose, ears, mouth, anus and veins unless there are exigent circumstances like medical emergency or the evidence will be destroyed. Even if they believe that their is evidence that will be destroyed. They still need probable cause to seize that evidence without consent or a warrant. Evidence being destroyed is not an issue here. In fact if the evidence is destroyed any prosecution that could result from it are a moot point. The suspect would no longer exist. This also cannot be represented as a search incident to institutionalization. Because it does not involve a search for contraband. So even jail officials would need a warrant to seize the DNA.

[Wizard777]

Supreme Court questions sides in challenge of Md. DNA law

The U.S. Supreme Court prodded the constitutional implications of Maryland's DNA collection law Tuesday, in what Justice Samuel Alito called "perhaps the most important criminal procedure case" in years.

The justices had questions about where to draw the line on police powers if investigators are allowed to perform a search for DNA in the interest of turning up evidence of old crimes.

Members of the high court asked whether granting police a right to take DNA from people suspected of serious crimes at the time of their arrest — as Maryland does — would also give officers a right to search that person's home and car, and whether DNA testing should be compared with fingerprinting.