Perhaps because the Supreme Court has specifically rejected that argument? The Supreme Court has taken a different view: Its view is that taking any information at all from inside the home, eve if it is entirely nonobtrusive on unrevealing, is still a full search that requires a warrant because it involves the home.See Kyllo v. United States.So when you say that “the distinction between searching a house and taking a cheek swab is precisely the intrusiveness,” the Supreme Court has precisely rejected that precise kind of argument.

I actually had this case specifically in mind. I was being unclear by what I meant by “intrusiveness”. I believe both your first reply and my reply to your reply were based on confusions arising from my poor choice of wording.

And you’re right.

no, the difference is that “a man’s home is his castle” and that homes are thus given special protections vs. the inside of a man’s cheek, which is many things, but definitely not a castle. :)

If the judges of the IN Ct. of App. think that having something placed in one’s mouth is less intrusive than having one’s pockets patted down, then they’re doing fellatio all wrong.

That seems to be radically overstating the issue. While I agree that this case was probably wrongly decided due to misreading Terry, “excruciatingly intrusive” brings to mind a careless and aggressive cavity search, and simply does not describe in any reasonable fashion a cheek swab.

As has been pointed out, we waive our right to privacy in our DNA on a constant basis through actions such as sneezing, leaving fingerprints, and shedding hair and skin. And it’s not as if we (most of us, anyway) know the content of our DNA — it’s not like the police are reading diaries, or downloading web histories, or performing strip searches. The police have a reasonable chance of securing the DNA in other ways, but I suspect the more creative the cops have to get to secure DNA, the more opportunity for error will arise.

(1) all judges (Supreme Court first, district justices/magistrates last)
(2) all prosecutors (feds first, locals last)
(3) all police officers (narcotics first, locals last)
(4) all other law enforcement personnel (DEA first, locals last)
(5) all federal elected officials
(6) all state elected officials
(7) all rasslin’ and NASCAR fans
(8) all local elected officials
(9) all appointed government officials
(10)all immediate family members of anyone identified at (1)-(9)
(11)all other Americans

Any deviation from that order resets my position to ‘get a warrant, destroy the information unless the provider is convicted of a crime, and punish personally any government official who violates the rights of any citizen in this regard.’

But the distinction between searching a house and taking a cheek swab is precisely the intrusiveness. Without that difference, why wouldn’t this reasoning apply to the home?

Perhaps because the Supreme Court has specifically rejected that argument? The Supreme Court has taken a different view: Its view is that taking any information at all from inside the home, eve if it is entirely nonobtrusive on unrevealing, is still a full search that requires a warrant because it involves the home. See Kyllo v. United States.

So when you say that “the distinction between searching a house and taking a cheek swab is precisely the intrusiveness,” the Supreme Court has precisely rejected that precise kind of argument. More broadly,let me suggest that you might persuade a few more readers if you spoke with a bit more humility about this complicated body of law. But that is up to you, of course.

David, I recall that you have strong opinions about the Fourth Amendment. But this strikes me as an “absolutely and completely ridiculous” comment. There is nothing in the Court’s rule that suggests that the police could do that: That the rule would apply to the home, or allow such a thing, etc. Plus, if there were reas susp for each and every individual molecule in a house, then there would plainly be probable cause for the house as a whole.

You certainly have a fair point. But the distinction between searching a house and taking a cheek swab is precisely the intrusiveness. Without that difference, why wouldn’t this reasoning apply to the home?

I think the focus on whether there is probable cause misses an important point. That you had probable cause is not a license to search without a warrant.

I think you should add some citations to Nozick and Hayek to make it a really strong argument.

Also, Schmerber was a Warren Court decision (for those of you discussing the D’s and R’s with regard to the Fourth. Hint: they’re both bad because they favor the state).

If I didn’t know better, I’d think Dilan was actually a libertarian after that comment

Sugartits mcgillicutty: You’re putting an implement inside someone’s person.You’re putting an implement inside someone’s person. You’re putting an implement inside someone’s person. You’re putting an implement inside someone’s person. I’m gonna say it again: You’re putting an implement inside someone’s person.

How is this different from Schmerber? Or do you think that blood, hair and other samples from a body require a warrant? Mindlessly repeating yourself is not a legal argument.

I’m gonna say it again:

You’re putting an implement inside someone’s person.

http://www.youtube.com/watch?v=GeisCvjwBMo&feature=related

Angus: I’ll bring this up only because conservatives like to fling such things about when “liberal” judges appointed by Democrats trample our rights.Majority:
Judge Bradford – appointed by Mitch Daniels (R)
Judge Brown – appointed by Mitch Daniels (R)Dissent:
Judge Crone – appointed by Joe Kernan (D)Clearly I think that the “liberal, Democratic” dissent got it right in this case.

Doesn’t the argument generally run precisely the other way, with the complaints from liberals and libertarians that conservative judges are curtailing the Fourth Amendment?

If this were a Second or Fifth Amendment case, you might have a point, but I don’t think so here. I think that’s the precise ideological lineup you’d expect in a Fourth Amendment case.

there’s a fundamental gap between physical reality and the law for a cheek swab to be a major invasion of privacy — anyone who wants a copy of your DNA can follow you around and pick up personal hygene items you throw away.

Majority:
Judge Bradford — appointed by Mitch Daniels (R)
Judge Brown — appointed by Mitch Daniels (R)

Dissent:
Judge Crone — appointed by Joe Kernan (D)

Clearly I think that the “liberal, Democratic” dissent got it right in this case.

This is a problem I have always had with the drug testing cases. Courts focus on the physical intrusion / sexual humiliation of peeing in a cup. But the real privacy interest is the interest in not having the police or anyone else know what is inside your body. Courts don’t want to go there because they don’t want to admit that it is presumptively none of the government’s business what your body contains and that the government should have to meet some strict standard to override it. But that’s the real issue.

And that’s why swabbing cases may come out with underprotective results too.

I’m sure that the friends and family members of the many officers killed each year in the line of duty by mutant supervillains would strongly disagree.

.....Garcia-Torres was in custody when he was requested to give the cheek swab, as he was in the presence of two police detectives at the police station, had been advised of most of his Miranda rights, and had already admitted to his role in the attack on S.P.

And he was not just dragged off the street in for questioning, the police had already developed evidence against him. So I see really little problem with the check swab, it merely confirmed the evidence the police already had.

This is absolutely and completely ridiculous. If this were the rule, then if police could easily and conveniently search an entire house molecule by molecule, no warrant would be required to do so.

David, I recall that you have strong opinions about the Fourth Amendment. But this strikes me as an “absolutely and completely ridiculous” comment. There is nothing in the Court’s rule that suggests that the police could do that: That the rule would apply to the home, or allow such a thing, etc. Plus, if there were reas susp for each and every individual molecule in a house, then there would plainly be probable cause for the house as a whole.

SuperSkeptic: Btw, Terry was an awful decision, as it’s led to the near eviseration of P.C. in so many situations (”exceptions”) and replaced it with the much, much lower standard of Reasonable Suspicion. Now, everything that Majorities or Courts view as important enough to search for only requires R.S.

Exactly right. Terry has led to rampant invasions of liberty, particularly in poorer communities. It was and is an abomination, probably the most anti-libertarian decision of the past 50 years.

David Schwartz:>No. The we have a legitimate privacy interest in every barrier we place between ourselves and others. Opening my blinds breaches a legitimate privacy interest whether you look through them or not. (And there’s case law on point.)

I think that answer my question. I do not see why the officers can’t just wait for a warrant.

John Jenkins: Not quite. Sobriety tests are premised on “implied consent.” See, e.g.,47 Okla. Stat. § 751(A)(1). By driving you are “deemed to have given consent.” Id.

Yes quite John. Unless you have personally given your consent, anything that says you have is fictional.

As we pick up speed down the slippery slope of Fourth Amendment violations...

Skyler: The sobriety test is based on the fiction that driving is a privilege.By that logic, a DNA swab is not permitted if you’re not driving.If you’re walking on the street or in your front yard, there is no privilege that the government thinks it’s granting you.At least we haven’t gotten that bad yet.So this decision is out to lunch in every regard.

Not quite. Sobriety tests are premised on “implied consent.” See, e.g.,47 Okla. Stat. § 751(A)(1). By driving you are “deemed to have given consent.” Id.

“Would taking the swab, but having to get a warrant to actually run tests on it satisfy anyone?”

No. The we have a legitimate privacy interest in every barrier we place between ourselves and others. Opening my blinds breaches a legitimate privacy interest whether you look through them or not. (And there’s case law on point.)

Would taking the swab, but having to get a warrant to actually run tests on it satisfy anyone?

So this decision is out to lunch in every regard.