Search and Seisure

[telkanuru]

There's been a story in the local press (I don't know if it made it nationally) of a town's PD asking men for their DNA to compare to that taken from a murder victim. The ACLU (and myself) have become outraged at this because, although it seems innocent on the front, they're also taking note of those who refuse to give samples. Am I just crazy, or is there a 'refusal to submit to an unwarrented search is not a reason for a search, and therefore not a reason for suspicion' clause in our laws? What do you all think about this?

[Rogue]

You had better sit down.
I agree.
The gov. should get a warrant if they want to search me for anything.
I got pulled over for speeding and the cop asked if I cared if he looked in my car. I said, "Yes."
Cop,” If I have to call for a warrant it will take awhile."
Me, " I'll wait"
Then the cop wrote my ticket and left without calling for a warrant.

[Soldier]

Good cop. Have a donut!

[mrbiggs]

Personally, I doubt that I will ever invoke my 4th Amendement rights. I don't really break the law, so the police can search me if they want, if it helps them find a real criminal. But I don't like the general mentality in this country, which seems to be "If you have nothing to hide, why can't they search you?" I feel that everyone has SOMETHING to hide. Maybe I have gay porn in the back seat of my car. Legal? Yes. Something I want someone else seeing? No. Yeah, that's an extreme example, but I think that many people have something they don't want everyone in town to know about, and that we should have laws to protect them.

[telkanuru]

You had better sit down.
I agree.

Nah, s'ok. I actually expected that. You all ways struck me as one of those "Get the CIA out of my brain" people

[Bokken]

The story did go national - I think NY Times and CNN.com both carried it.

There's something to say about attitudes of suspicion there, like "if you refuse you're automatically a Suspect."
Sounds a little too "Judge Dredd" for my liking. ;-)

[MyrddinsPrecint]

Personally, I doubt that I will ever invoke my 4th Amendement rights. I don't really break the law, so the police can search me if they want, if it helps them find a real criminal. But I don't like the general mentality in this country, which seems to be "If you have nothing to hide, why can't they search you?" I feel that everyone has SOMETHING to hide. Maybe I have gay porn in the back seat of my car. Legal? Yes. Something I want someone else seeing? No. Yeah, that's an extreme example, but I think that many people have something they don't want everyone in town to know about, and that we should have laws to protect them.

gay porn is an extreme example?



.... crap.

[gojujay]

There's been a story in the local press (I don't know if it made it nationally) of a town's PD asking men for their DNA to compare to that taken from a murder victim. The ACLU (and myself) have become outraged at this because, although it seems innocent on the front, they're also taking note of those who refuse to give samples. Am I just crazy, or is there a 'refusal to submit to an unwarrented search is not a reason for a search, and therefore not a reason for suspicion' clause in our laws? What do you all think about this?

I agree that it's not enough of a reason to justify a search, however, if a person has other reasonable links to the crime, then it is a reason for suspicion. It does not rise to the level of getting a warrant on its' own, and I'm not comfortable with using it, even as part of the "totality of the circumstances" reasoning.

Given some of the Supreme Courts' decisions, I think that the Fifth Amendment may apply to the true guilty party, as he could not be compelled to give evidence against himself, though I'm not sure if the self-incrimination clause can stretch to actual physical evidence. Any lawyers out there with an opinion?

[jeff]

gay porn is an extreme example?.

...only to those in the closet, no?

[mrbiggs]

gay porn is an extreme example?



.... crap.

For conservatives it is.

[MyrddinsPrecint]

For conservatives it is.

for closeted conservatives.......

[L.O.A.S.]

I got pulled over for speeding and the cop asked if I cared if he looked in my car.

Were you acting "twitchy" with bags of munchies on the front seat?

[telkanuru]

Were you acting "twitchy" with bags of munchies on the front seat?

Do not meddle in the affairs of munchies, for they are subtle and quick to anger!




Twitchy? My friends tend to think they're elves (the small kind) and go and hide in closets. Mayhap I just have weird friends...

[MyrddinsPrecint]

so it's the elves hiding in closets that are ashamed of the gay porn?

[Dee EffEll]

Personally, I doubt that I will ever invoke my 4th Amendement rights. I don't really break the law, so the police can search me if they want, if it helps them find a real criminal. But I don't like the general mentality in this country, which seems to be "If you have nothing to hide, why can't they search you?" I feel that everyone has SOMETHING to hide. Maybe I have gay porn in the back seat of my car. Legal? Yes. Something I want someone else seeing? No. Yeah, that's an extreme example, but I think that many people have something they don't want everyone in town to know about, and that we should have laws to protect them.

Here's a better example: Suppose your state has decided that it is having a fiscal crisis, and that all citizens must be tested to see if their DNA indicates they are predisposed to certain diseases that are expensive to care for. This information will be disclosed to all potential employers that will hire in employees in your state, so as to give them a financial incentive and advantage in labor costs. Also, if your DNA test shows you have such a predisposition, you will not be eligible for disability or unemployment compensation, since "we just can't afford it."

Wonder if the "I have nothing to hide" folks want to think about this one.

A central issue in the concept of privacy is whether or not the right of privacy is need because some things are inherently personal so as to need protection (the gay porn example) or if the use of the information (denying insurance) is why the protection is needed. I don't care if my SSN is disclosed, but the proiblem is that it can be used illegally to do harm to me.

Note that the cops in the cited article made their request to submit the sample voluntary. They claim this avoids the 4th/14th amendment violation. Suppose they publish a list of those who did so submit? Can't the casual observer infer everyone else refused? Wonder what all those othe rpeople in that town have to hide, hunh?

[Epee_Pox]

Given some of the Supreme Courts' decisions, I think that the Fifth Amendment may apply to the true guilty party, as he could not be compelled to give evidence against himself, though I'm not sure if the self-incrimination clause can stretch to actual physical evidence.

The Fifth Amendment protects you from being compelled by the government to testify against yourself. The policy behind that is we don't want to overcome your individual free will.

Compulsion is presumed by your being in custody, and being interrogated. Custody is when the cops physically have you in their control, and a reasonable person wouldn't feel free to leave (or when you've been subpoenaed to testify before a jury). Interrogation is not just asking questions, but any activity that is likely to elicit an incriminating response. Any time there is custodial interrogation, your Fifth Amendment right against self-incrimination kicks in.

You can testify against yourself if we are assured that it was your own choice to do so. That's why the Miranda warnings are there -- you're told that you don't have to say anything, but if you want to then go ahead -- if the cop says the little mantra, then your confession is usable. (BTW, hardly any NYC cops read people these rights; with the result that a lot of otherwise good confessions aren't usable in court. They should watch more TV.) Similarly, if the cops didn't ask you, but you just blurted out your confession, there's no concern about the government overcoming your free will, so there's no Fifth Amendment protection.

An important point is that the Fifth Amendment protects only testimonial confessions. If you say something that incriminates yourself, it's an issue. But your fingerprints are not testimony. The government can get your fingerprints without any Fifth Amendment problem. Same with any other physical evidence, such as DNA or clothing etc. The government can, in other words, take physical evidence from you that is likely to incriminate you, and there's no FIfth Amendment right at stake. Because they're not overcoming your free will by compelling you to testify against yourself.

You may not be willing for the government to take your DNA, but that's not the same thing. Nobody's making you create evidence, it already exists and is simply being taken from you.

[jeff]

Excellent points, Dee Eff Ell, and if you replace "state" with "HMO" you'll have a pretty accurate guess of the near future ("Got that BRCA-2 gene? Nope, we're not going to ensure you... have fun living with your preexisting condition ")

MyrddinsPrecint, telkanuru - don't forget the dwarves. They have lots of closet space in their caves, they appear to have only one gender, and I think Gimli and Legolas came to have a close understanding.

[gojujay]

The government can get your fingerprints without any Fifth Amendment problem. Same with any other physical evidence, such as DNA or clothing etc. The government can, in other words, take physical evidence from you that is likely to incriminate you, and there's no FIfth Amendment right at stake. Because they're not overcoming your free will by compelling you to testify against yourself.

You may not be willing for the government to take your DNA, but that's not the same thing. Nobody's making you create evidence, it already exists and is simply being taken from you.

I'm just wondering if they could use a refusal by the actual guilty party as reasonable cause to go after other evidence against said party. I don't know if that specific action could be used with other reasonable suspicion to bootstrap probable cause for a warrant to search say, your residence, car, workplace, etc., because of your Fifth Amendment guarantees.

For example; you happen to be in the area where a crime is committed. A witness gives a description that fits you, along with half-a-dozen other individuals. The police ask for voluntary DNA samples, which the other five individuals give. You refuse. Is that refusal, plus physical and temporal proximity to the crime, and a non-specific description enough for the police to get a search warrant for your property? To my understanding, your refusal shouldn't even be considered for any warrant application.

[gojujay]

Excellent points, Dee Eff Ell, and if you replace "state" with "HMO" you'll have a pretty accurate guess of the near future ("Got that BRCA-2 gene? Nope, we're not going to ensure you... have fun living with your preexisting condition ")

Not sure how this differs with life insurance companies. I don't particularly like it , but they are private companies. To compel them to assume a greater level of risk than they deem appropriate, seems socialist/fascist, i.e. the government making business decisions for you.

MyrddinsPrecint, telkanuru - don't forget the dwarves. They have lots of closet space in their caves, they appear to have only one gender, and I think Gimli and Legolas came to have a close understanding.

That is a mental image I could have happily lived the rest of my life without

[CutLass]

Not sure how this differs with life insurance companies. I don't particularly like it , but they are private companies. To compel them to assume a greater level of risk than they deem appropriate, seems socialist/fascist, i.e. the government making business decisions for you.

It's quite a slope here. Who should see your genetic map? Your insurance company? Your employer? Your spouse or girlfriend? Do you want to know that somewhere in your late future you'll have a terminal condition? Do you want to know about it when you are 20 or 30 when it may not strike you until you are 70?

What if your map is wrong? What if something happens to you along your life which for some reason alters your genetic map?