Comments on: Cheek Swabs for Arrestees’ DNA Likely Don’t Violate the Fourth Amendment — Even Though Cheek Swabs of Pretrial Detainees Do Violate the Amendment

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Tue, 09 Feb 2010 05:00:50 +0000

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By: ArthurKirkland

ArthurKirkland — Tue, 09 Feb 2010 03:44:55 +0000

As usual, the best first step toward drawing appropriate lines would be to require all law enforcement personnel — police officers, prosecutors, judges, laboratory technicians — to provide the information the system would seek to collect on a wholesale basis.

Also as usual, the libertarian-liberal alliance likely will be called upon to vindicate all Americans’ civil liberties.

By: Gov98

Gov98 — Tue, 09 Feb 2010 02:10:17 +0000

Holding aside the merits, there is I think a difference between the routine cheek swap and the pre-trial taking of DNA, specifically, running a profile in CODIS can take about 4 months (IIRC) and is not nearly as useful as a suspect to unknown match. Which is a different process.

By: Kent Scheidegger

Kent Scheidegger — Tue, 09 Feb 2010 00:20:18 +0000

Buddy Hinton: On Charles Breyer related note:did 9th Cir. ever decide Ed Rosenthal’s second appeal that they heard a year ago?

Affirmed 6/11/09, case 07-10341, unpublished.

By: jccamp

jccamp — Tue, 09 Feb 2010 00:06:45 +0000

There's another case directly on point - addressing a Federal law very similar to the challenged Cal code - in front of the 9 CA now, US v Pool. A Federal magistrate decided the Federal law was reasonable, in language very similar to Breyer's (no 4A implications when DNA collection from arrestees existed for identification purposes). However, the Federal statute allowed the collection only after a probable cause hearing for pre-trial detention, and made the collection a condition for pre-trial release (if I understand it correctly). There are subtle differences between Friedman and Haskell, in that Friedman was clearly an attempt to implicate a single person via DNA collection without a warrant, while Haskell deals with a blanket state of affairs, requisite testing for all (state) felony arrestees, ostensibly as a reliable method of identification. Here's the magistrate's decision in Pool. It was written a few weeks prior to the release of Friedman. I believe that arguments in front of the 9th CA have already taken place. Although there's a lot of talk within the various opinions about other circuits, I don't think any other circuit has actually ruled on DNA collection from pre-trial felony suspects, only those already convicted. At least I couldn't find such a case. I guess we'll get a replay in Pool. Should be interesting.

By: Buddy Hinton

Buddy Hinton — Tue, 09 Feb 2010 00:00:47 +0000

On Charles Breyer related note: did 9th Cir. ever decide Ed Rosenthal’s second appeal that they heard a year ago?

By: Mark N.

Mark N. — Mon, 08 Feb 2010 23:44:14 +0000

The general wording of the opinion, and the prominent reliance on the dissent in Friedman, makes it sound an awful lot like Judge Breyer thinks Friedman is on point but wrongly decided, as opposed to thinking that it isn't on point, which would be a strange approach to binding precedent.