Taxing the credulity of the credulous

For those who missed it, Maryland vs. King concerns a man arrested in 2009 for menacing a group of people with a shotgun. Upon arrest, his DNA was taken and fed into a computer, whereupon it was matched with the DNA of a rapist in a 2003 case, for which crime he was subsequently convicted.

He appealed the rape conviction on the grounds that the search was an unreasonable violation of the Fourth Amendment, but the Supreme Court ruled against him, 5-4.

When Scott Stantis posted this cartoon on Facebook, my response was that collection of DNA upon arrest is no different than collection of fingerprints, a position strongly echoed in the majority opinion.

Upon review (and the Court had more than three months to ponder between presentation and decision), both the majority and I were wrong.

The cartoon stands as called.

And, before we go any further, it's a wonderful riff on the ridiculous daytime TV show that cartoonists should be ashamed to know exists but that Darrin Bell has been mocking recently over at Candorville:

Which brings to the table the topic of how unlikely it might seem to be citing conservative Scott Stantis and liberal Darrin Bell in the same posting and not in opposition to each other.

But -- in addition to Bell's commentary on stupid television -- both have been riffing on the erosion of civil rights recently and not in a manner that suggests they are coming from different directions.

Specific to the past few weeks, Bell has taken on the monitoring of journalists, while, in his daily strip "Prickly City," Stantis riffed on the subject of indefinite detention and extraordinary rendition:

Stantis is an old-line conservative who has, both in his editorial cartoons and in Prickly City, distanced himself from the concept that the term "conservative" is synonymous with "law-and-order-lickspittle," nor has he taken the party-line stance of other cartoonists, who seem to think that violation of rights began when Obama was sworn in.

But if Stantis and Bell seem an unlikely pairing, the fact that the dissent in Maryland vs. King united Scalia with Ginsberg, Kagan and Sotomayer creates a foursome so astonishing that it demands we go take a look and see how the hell that happened.

Letting Scalia write the dissent not only provides a shield against the notion that he simply and passively went along with the liberals this time, but allows his always-entertaining writing style to be exercised on what fans of the other three justices would call the side of the angels:

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 incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment. Whenever this Court has allowed a suspicionless search, it has insisted upon a justifying motive apart from the investigation of crime.

It is obvious that no such noninvestigative motive exists in this case. The Court's assertion that DNA is being taken, not to solve crimes, but to identify those in the State's custody, taxes the credulity of the credulous. And the Court's comparison of Maryland's DNA searches to other techniques, such as fingerprinting, can seem apt only to those who know no more than today's opinion has chosen to tell them about how those DNA searches actually work.  

In the words of Chief Justice John Marshall, "BAM! There it is!"

Three things that should be made clear:

1. Rape is a horrific crime and rapists need to be caught and put away.

2. The legal system exists because revenge gets wildly out of hand really easily.

3. Most places in the world where (2) is not the law of the land also don't place much stock in (1). You could look it up.

Stantis isn't the only conservative who recoiled from this decision. Just the only one who came up with a brilliant cartoon on the topic. (The other conservative cartoonists are mostly obsessing about the IRS convention. No, really. You could look that up, too!)

Here's the plain-language take:

First of all, we don't have a fingerprinting analysis system sophisticated enough to simply run through all unsolved crimes and make matches, so that's not an applicable parallel to using DNA for random matching. 

Second, there is a vast and significant difference between arresting someone for, let's say, a rape in which the victim lived in a certain place and was attacked in a certain way and, recognizing the simularities, checking fingerprints or other evidence to see if the two crimes were related, and simply tossing a suspect's DNA into the computer to see if you get any hits.

As Scalia noted:

The Court alludes at several points to the fact that King was an arrestee, and arrestees may be validly searched incident to their arrest. But the Court does not really rest on this principle, and for good reason: The objects of a search incident to arrest must be either (1) weapons or evidence that might easily be destroyed, or (2) evidence relevant to the crime of arrest. Neither is the object of the search at issue here.  

In other words, if you stop someone for reckless driving, you can't go search their apartment and seize their computer and all their papers to see if they have also perhaps robbed a bank or released secret government documents or bought and sold marijuana.

And as Scalia notes and "Law & Order" fans will attest, even things found in the reckless driver's car can only be used if they would inevitably have come to the officer's attention -- like a crack vial in plain view on the empty passenger seat rather than one hidden behind the speakers in the dashboard -- unless you have obtained a warrant that allows a more thorough search and that specifies drugs among the items to be searched for. 

And anyone who insists that "well-regulated militia" means "well-regulated militia" is in one helluva poor position to insist that "no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized" doesn't mean "no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

Which may be seen as a comment on Scalia's consistency, but it surely does mean that, if you believe that this guy was treated fairly, you can't complain that Verizon turned over your phone records to the government.

Besides, it's only done for our safety and security.

Comments

[Nostalgic]

I'm having trouble with your statement that "...we don't have a fingerprinting analysis system sophisticated enough to simply run through all unsolved crimes and make matches, so that's not an applicable parallel to using DNA for random matching."

They seem quite similar to me, and currently limited ability to search and analyze the data doesn't seem relevant. If fingerprinting doesn't violate the 4th Amendment now, will it do so when we do have a comprehensive national database?

[Dann]

I was about to ask the same question as Ruth. But I did a DuckDuckGo on "fingerprint database search". The first few items suggest that such databases do exist, albeit with some errors due to data collection and/or the software used to process/search/match fingerprints.

We appear to be rapidly rushing towards the destruction of peaceful anonymity with the government recording our every action or inaction.

I'm not sure I like the idea of DNA swabs based on an arrest, but I don't see how it is dissimilar from any other form of biometric identification either in use or technologically possible.

I expect everyone to end up RFID chipped like pets with government transponders at spaced intervals to collect the data and programming to sift the data.

All for our own good, I'm sure....

[Mike Peterson]

The technical difference at the moment, as I understand it, is that the fingerprint-matching technology is better at taking a fingerprint from a crime scene and seeing if it matches the prints of a known criminal, but, when you ask "Does this match anybody at all?" you end up with a large number of possible matches which you then narrow down to likely people.

In other words, if you got X-number of names, you'd rule out the ones who were dead or incarcerated, then throw out the ones who are not anywhere near your location and that can give you a couple of people to check out. And maybe one of those is the guy you want, or maybe not, but you're not done even then.

What you can't do (yet) is toss a set of prints out into the system to see if they match any random crime scene print, and, especially, you can't expect to pull up a "yes, this is the guy" level match. With DNA, you can.

It's sort of like the difference between finding your way from a spot on the eastern slope of the Andes to the mouth of the Amazon, versus starting at the Atlantic and finding your way to a precise location in the mountains -- the branches, turns and options are far less inevitable and obvious going upstream than they were going downstream.

And, yes, once we get the technology to the point where you can use it for searches with no probable cause, then we'd need to consider the extent to which we allow prosecutors to go on fishing expeditions. Or, I guess we don't, since the court has said that anybody who has been arrested -- though technically innocent even of the crime for which they are suspected -- can be put through the full technical inquisition with absolutely no cause, probable or improbable.

And the RFID chips will come soon enough, Dann -- it's the only way to keep our children safe, don't you know? Won't someone please think of the children?????

[Nostalgic]

OK, I will keep thinking this over. At the moment, it seems that DNA's precision is the problem. But...but... argh!

The 4th amendment, and this is purely philosophical, seems based on the fact that much evidence is a question of interpretation. Somebody stole a rare gold coin. Authorities violate someone's rights by searching his home without cause, and find an identical coin, but there are still a gazilion unanswered questions. The presence of an identical coin doesn't mean he was ever at the crime scene, doesn't mean he stole it even if he was at the scene, doesn't mean it's the same coin, and if it is, doesn't mean he came by it by that way.

But DNA?? It incriminates/exonerates very accurately- tho possibly not 100%. But I am not hearing that the accuracy factor is the difference.

I realize my take sounds dangerously like "If you haven't done anything wrong, you have nothing to hide." If the DNA has no match to other crimes, but turns up some personal info that the owner has the right to keep under wraps ... OK, there's an argument. Still thinking.

[Owen]

For the sake of accuracy, I do believe I saw the phrase "serious crimes," as predefined by the State of Maryland, not anyone who is arrested.

[Mike Peterson]

The point is, as stated in the dissent, that we were determined not to allow the doctrine of "well, he must be guilty of SOMETHING" to gain a foothold. And yet here we are.

Ponder it for a moment: Who might be guilty of something? A middleclass, middleaged white guy sitting watching the baseball game? Nah. How about the black kid hanging with his friends on the corner?

I've been hassled by the Chicago cops for having long hair, and, 40 years later, my hair is short but those checkerboard hats still make my gut wrench. I don't know what they do for people who didn't have the option of changing the thing they were being hassled over.

The Amendment is clear: You can't come in and just poke around hoping to find something. If you have a reason to be here, state it. Otherwise, bugger off.

Good principle. One of the best.

[Beth Cravens]

My problem is that it sets a precedent for future administrations. I may not have anything to hide now, but who's to know what a "serious" crime will be in the future. The saying is, give them and inch and they'll take a mile. The Patriot Act is proving that out.