In recent years, lower courts have struggled to figure out how the Fourth Amendment applies to the collection of DNA from a suspect to try to prove identity in a criminal case (typically in rape cases). In general, courts have held that if a suspect uses a cup and throws it away, or spits on a sidewalk, the police can recover the cup or the spit and test it without triggering the Fourth Amendment. The suspect has “abandoned” the DNA, the thinking goes, so he has no continuing Fourth Amendment right in it. On the other hand, if the police for a suspect to submit to a DNA test, such as a inner-cheek swab for saliva, the suspect has Fourth Amendment rights in the DNA. Courts have not settled on exactly what protection the Fourth Amendment applies in those cases, and in particular whether a warrant or just some cause is needed to force the cheek swab. But they agree that there is at least some Fourth Amendment protection.
In Raynor v. State, the suspect in a rape case was asked to come to the police station for an interview. At the station, he was asked to submit to a DNA sample. The suspect refused. When the suspect left, however, the police swabbed the chair in which he had been sitting and were able to collect his DNA:
At that time, appellant was wearing a short-sleeved shirt and, according to Trooper Wenger, “kept rubbing his arms up and down the armrests of the chair.” . . . After appellant left the police barracks, Sergeant Decourcey swabbed the armrests of the chair on which appellant had been sitting. The swabs were submitted to the Maryland State Police Forensic Lab, where the forensic sciences supervisor, Bruce Heidebrecht, extracted DNA from the swabs and developed a DNA profile for comparison purposes. That DNA profile was found to match the DNA profile developed from the evidence taken from the pillow case and the patio at the scene of the crime.
Held, by the Court of Special Appeals of Maryland: The collection and analysis of the DNA was not a Fourth Amendment search. From the opinion:
DNA evidence, when used for identification purposes only, is akin to fingerprint evidence. And, although fingerprint evidence is suppressible if it is obtained in the course of an unlawful detention, see Hayes v. Florida, 470 U.S. 811, 816 (1985); Davis v. Mississippi, 394 U.S. 721, 727 (1969), the fingerprinting process itself “involves none of the probing into an individual’s private life and thoughts that marks an interrogation or search.” See United States v. Dionisio, 410 U.S. 1, 15 (1973) (quoting Davis, 394 U.S. at 727).
Thus, even if appellant could demonstrate a subjective expectation of privacy in his DNA profile, he nonetheless had no objectively reasonable expectation of privacy in it because it was used for identification purposes only. As in Williamson [an earlier Maryland case involving recovery of a cup the suspect had used and thrown away], the police were in lawful possession of the item from which the DNA was collected. In Williamson, the cup from which the DNA was collected came into police possession when the suspect discarded it in the holding cell; here, the chair in the police barracks was, from the outset, in the possession of the police. Thus, like the analysis of a latent fingerprint, which involves no physical intrusion into the body and is used for identification purposes only, the analysis in the instant case of DNA evidence, which was in the lawful possession of the police, was not a constitutionally protected search.
I don’t yet have a settled view of how the Fourth Amendment applies to the collection and analysis of DNA, but the analogy between DNA and fingerprint evidence strikes me as questionable. Fingerprint evidence is on the surface. It is often visible to the unaided eye, and anyone can pick it up. In contrast, obtaining a DNA sample requires extracting it from a sample, in ways that in some ways resemble drug testing of urine samples. Although the law isn’t totally clear on this, there is some authority for the view that the extraction may make a Fourth Amendment difference, see Skinner v. Railway Labor Executives Assn (1989) (holding that collection and drug-testing of a urine sample is a search, in part because of what the chemical analysis reveals). I think you can see the questionable fit here in the court’s suggestion that limiting the use of the DNA sample to identification purposes is important: It’s not clear to me how that could be right, given that the Fourth Amendment does not impose use restrictions.
Thanks to FourthAmendment.com for the link.
Adam says:
Random thoughts:
1. It’s beyond troubling that you can rightfully refuse the search, but be searched anyway, which I think is a fair characterization of what happened here.
2. It seems to me there should be very significant chain of custody issues with this evidence. How do they know the DNA they got off the chair came from him? Did they disinfect the chair before he sat in it?
3. It sure seems like the analysis is a search separate from the collection. I may not have any expectation in privacy for saliva on a discarded cup, but I’m not sure that extends to the not having an expectation of privacy for the content of my DNA as I certainly don’t expect someone to pluck it from the trash and take it to a lab.
4. A rule that says you can collect unintentionally abandoned tissue from interview room sees to open more than few difficult cans of worms. First, how do we know the tissues were actually abandoned rather than surreptitiously collected? And wouldn’t it be pretty easy to abuse the rule by planting DNA to be found? Subsequent testing would expose the ruse, but it might be more than enough to coerce a guilty plea first.
October 6, 2011, 12:47 pmLoren says:
The problem I see here is that the police have established that the DNA of someone who has sat in the chair matches that from a crime scene. They still have not established, beyond a reasonable doubt, that the DNA collected is that of the suspect, and not, say, some police officer who may regularly sit in the chair. Unless the police had previously eliminated all other DNA traces from the chair, and ensured that no one else had sat in the chair subsequently. this differs greatly from the clean glass with the suspect’s fingerprint.
October 6, 2011, 12:48 pmMike Jesse says:
This has the practical effect of not allowing anyone to require a warrant before submitting to DNA testing. The court might as well cut the bull and state it outright. We shed cells constantly, it is certainly not voluntary, nor reasonably controllable. If we have no privacy in the DNA of those cells, then we’ve got no privacy in DNA whatsoever.
Might as well require submission to a direct test, and eliminate issues with tainted samples and such.
October 6, 2011, 12:58 pmShelbyC says:
But there’s no one we can think of who would have been at the police station, and also who would have been at the crime scene, is there?
October 6, 2011, 1:01 pmluagha says:
So, now, not only should you never talk to the police, you can never go to the station either, unless you do it in a plastic bag-suit and respirator.
October 6, 2011, 1:11 pmChanie says:
Exactly. This is a terrible outcome. A suspect in custody has no control over what room he is in or where he is allowed to sit. The chair is basically a giant cotton swab.
Going forward, every police station in Maryland will have a warm room with a sticky vinyl chair with which to catch voluntary DNA samples from suspects that refused a direct search. Justice!
October 6, 2011, 1:16 pmOrin Kerr says:
Adam:
Imagine the police have probable cause to get a warrant to search your home, and they decide to ask you for consent first instead of getting a warrant. You deny consent, so they get a warrant and search the home. Is that “beyond troubling”? I don’t see why.
October 6, 2011, 1:28 pmDaran says:
Why swab a chair if you can tightly handcuff suspects while bringing them in for questioning and then swab the handcuffs. Handcuff a suspect during a traffic stop ‘for the officers safety’ and presto. Seems very prone to abuse.
October 6, 2011, 1:28 pmGiMan says:
That is just silly. But in the end, if it helps stopping criminals, why not?
October 6, 2011, 1:28 pmChrisHo says:
It appears from just a cursory glance that this is too prone to abuse to be allowed, worse in this case how was not assumed it was staged for just this purpose?
October 6, 2011, 1:31 pmLaura(southernxyl) says:
Backing all the way up, you should never rape anyone to start with.
I understand about troubling searches and seizures, but let’s not lose sight of why we have police in the first place.
October 6, 2011, 1:32 pmBorealis says:
The DNA off the chair would not be good evidence at a trial, but it would easily be probable cause for a warrant to take an official swab of DNA.
October 6, 2011, 1:40 pmdht says:
I hope this comment was ironic, but if not, I will point out, as others have, that anyone, including police officers, could have sat in that chair. In particular, other suspects who were questioned about the same case could have sat in that chair. As Adam says in the first comment, there is a chair of custody isssue that raises a reasonable doubt.
October 6, 2011, 1:42 pmloki13 says:
But that’s the entirely wrong way to look at it. This isn’t about the criminals- this is about what we, as a society, will allow the police to do in order to enforce the law.
Yes, there are rapists. If we wanted better deterrence of rape, then we’d:
1. Increase the penalties for rape to life in prison without the possibility of parole.
2. Establish a nationwide DNA registry of every person in the United States.
3. Allow police to do whatever they want to catch perps (torture, get evidence without warrants, etc.).
For various reasons, we don’t. The “ends justify the means” is always wonderful, and it always ends up being the cases litigated (after all, you don’t need to suppress evidence when it’s not being used against you!). But the protections exist for a reason.
October 6, 2011, 1:43 pmanon says:
Professor Kerr,
If the law says a person can be asked to come into a *police station*, be given a glass of water, and have that glass fingerprinted, and that’s not a fourth amendment search, then the law is an ass.
It’s one thing to find a glass at a crime scene, or even to pick one up from a restaurant after seeing the suspect leave.
What is the difference between this, and putting up a hidden microphone next to the telephones an individual uses for his one phone call, or any call to his lawyers?
October 6, 2011, 1:44 pmrilkefan says:
Because in the hypo they have to get a warrant. I’m not ok with showing up at a police station being equivalent to volunteering my DNA. If the police have a warrant for it, then fine.
October 6, 2011, 1:44 pmLaura(southernxyl) says:
Loki, I said I understand about troubling searches and seizures.
We have to strike a balance. If you’re going to talk about things you shouldn’t do, then you balance not helping the police with not preying on your fellow citizens. Right? The purpose isn’t to see what all we can get by with.
October 6, 2011, 1:45 pmpete the elder says:
When did they search him in this case? They searched a chair they owned, not him.
And they didn’t make him come into the station either, it looks like that was voluntary on his part as well.
October 6, 2011, 1:45 pmgooners says:
This made me think of people who collect all their bodily clippings so witches don’t get them. Turns out they weren’t nuts, they were just ahead of their time.
October 6, 2011, 1:49 pmChanie says:
wait outside your house until you ineviably leave. they then enter and search. the maryland appeals court holds your leaving was a voluntary surrender of your privacy rights.
October 6, 2011, 1:50 pmJ. Patrick says:
Woe be unto the suspect who pees or poops at the station. Those pipes might just lead straight to a forensics lab.
October 6, 2011, 1:50 pmloki13 says:
But that’s entirely the problem. Look at it from the other point of view- you’re condoning the police seeing what all they can get by with. And the courts condoning the police actions. Why?
Because when this is brought up in court, it’s never when the police stretch the boundaries (or break them) and the person is innocent. Had the DNA not matched, they would have just kept chuggin’ along. Same with the the many exclusionary hearings. How many police (informally coerced) “consent” searches turn up nothing? Dunno. But you don’t hear about them, and when they do turn up something, you do. But the purpose of a rule is to keep the police from dragging us innocent people around.
So that if the police mistakenly think I was a rapist, I don’t get dragged down to the police station so they can surreptiously get my DNA, enter it into a database, and forget about it (so my DNA is entered into a database somewhere used for god knows what in the future).
October 6, 2011, 1:51 pmgooners says:
This made me think of people who collect all their bodily clippings so witches don’t get them. Turns out they weren’t nuts, they were just ahead of their time.
October 6, 2011, 1:52 pmKazinski says:
OK:
I think this is plainly wrong, just like DNA fingerprint evidence takes a technician to process and evaluate. A DNA saliva swab is like ordering someone to provide a urine sample, but if someone urinates in an alley and a sample is recovered, no warrant is needed. It is the manner of collection that matters, not what is done with it afterwards, at least in terms of using it for identification.
According to the plain text of the 4th amendment this was a legal search:
His person was secure, he left the police station before the sample was collected, it didn’t violate his personal space at all.
[OK Comments: Kazinski, my argument was based on what the Supreme Court has said, not your views of what they should have said.]
October 6, 2011, 1:56 pmgooners says:
This made me think of people who collect all their bodily clippings so witches don’t get them. Turns out they weren’t nuts, they were just ahead of their time.
October 6, 2011, 2:06 pmTNeloms says:
That’s sort of my reaction to stuff like this as well. I never went to law school, so can someone tell me or point to a good source that explains why I should care about the right to not let the police have your DNA? Maybe something along the lines of the recent “don’t talk to cops” video, which did a good job outlining the reasons.
I understand that in general you don’t want police intruding on the lives and privacy of citizens at will, but swabbing my cheek (let alone scraping DNA off a chair) seems way less intrusive and annoying than other things police are allowed to do to suspects. And if the concern is Big Brother having a database of everyone’s DNA, even if I were sympathetic to that, I don’t think that’s the point of the 4th amendment.
October 6, 2011, 2:12 pmKen Arromdee says:
The purpose is to avoid invading the privacy of innocent citizens. The reason it looks like “see what we can get away with” is that the search can only be challenged when the suspect is found guilty. But protecting guilty suspects from bad searches protects the innocent as well.
October 6, 2011, 2:14 pmKazinksi says:
You are applying the wrong standard, the standard is probable clause to get a warrant for a more reliable sample. That sample will provide proof beyond a reasonable doubt. No one is going to prison based just on the sample collected from the chair.
October 6, 2011, 2:40 pmAdam says:
No, but that’s because of the warrant. The issue here is that they didn’t have enough for a warrant, without “searching” him first without his consent.
Reading the opinion, it seems that the DNA off the chair was initially used for a warrant, but seems also to have been presented as evidence at trial.
October 6, 2011, 2:48 pmJ. Patrick says:
I just read the opinion, and found it disturbing. Based on the facts as described, this suspect appears to have a significantly greater chance of complete innocence than the DNA test (99.5% accurate) would lead you to believe.
The floor for this suspects innocence is probably closer to 5%, and possibly MUCH higher. But the information needed to make that determination is completely omitted. It makes me wonder if anyone ever thought to consider it.
PS The chair is a red herring. You all are focusing on it to the exclusion of something much more relevant. Mr. Kerr?
October 6, 2011, 3:02 pmMike S. says:
I don’t see how this ruling is surprising or troubling. The relevant legal question is, “Does a person have a reasonable expectation of privacy in the skins cells he sheds in areas or on objects where he has no property rights?”
Obviously no.
October 6, 2011, 3:11 pmDon Miller says:
These types of tactics will lead to people refusing to go to the police station to be questioned, unless they are under arrest.
They will agree to only be questioned by the police if it is located somewhere the police don’t have control over.
October 6, 2011, 3:16 pmLyle Habbershaw says:
Not Adam, but I’m not sure your response addresses his concern. I think a better analogy would be that you refuse consent for a search of your house and then leave the property and the police go ahead and search without getting a warrant.
While people may quibble on the grounds used for a warrant, I don’t think too many would argue that if the police had a warrant in hand, that you could stop them from searching. I guess the question boils down to do they need a warrant before the search or can they search and then get the warrant (assuming they had probable cause prior to the search)?
October 6, 2011, 3:44 pmSid says:
As a former military police officer, even I find this troubling. Gathering DNA evidence on a suspect without a warrant is wrong in our society. If the police had evidence that supported gathering a DNA sample, then they should have had that warrant in hand when they gathered a DNA sample in the first place.
October 6, 2011, 3:49 pmjcc says:
The science and technique of DNA discovery and collection is dramatically changing. We have always known that people drop DNA everywhere and on everything one might touch. The issue has been finding and recovering that DNA, and then discriminating the DNA collected (from multiple sources). Those issues are now being solved.
When you leave your domicile, you’re going to leave DNA on the counter at Starbucks, on the doorknob to the public restroom, the steering wheel of your rental car, the newspaper machine, ad infinitum. At some point, the courts will have to address this issue with some specificity. Either the DNA you drop (in a non-private location) is collectible by the government, or it’s protected, no matter where found. I suspect the latter is not and cannot be true. There may be future limits on the use of the DNA, that is, can it be compared for identification only, or can other genetic traits evident in DNA be also determined? But generally, your DNA is probably going to be considered just another way to describe an individual, much like a physical description or a fingerprint. You will go about your business, leaving DNA all over the place, at your own risk that the DNA will end up in someone’s hands. I’m referring now to what I think is the constitutional result. Obviously, I think political subdivisions can – and probably will – enact laws which limit this exposure.
Whether a private party can collect your DNA in the same fashion (as the government) for some ulterior motive is a separate issue. So, could an insurance company collect your DNA from their office chair and check you for predilection to a disease, etc?
As for the case cited in the OP, if the cops were planning on trying to collect the suspect’s DNA from the interview room, you should assume they cleaned that room to surgical standards before letting the suspect sit down. They may have had waiting any props they thought he might touch, like a cigarette lighter, a pencil or a pen, a bottle of water, etc. And all the cops had to establish was probable cause to get a warrant for a better, well documented DNA collection from the same individual.
Ten years ago, it would have been fanciful to accept that a regular cop, driving around on his beat, could whip out a small, cellphone-like device, grab your fingerprint and within seconds, check government databases for an arrest record, public ID card, warrants, etc. Get ready, because in another few years, that little device will collect your DNA, etc.
October 6, 2011, 3:49 pmJeff J says:
If the suspect unintentionally left his wallet or phone in the chair, the police couldn’t rifle through it without a warrant. It would be a stretch to say that the supect abandoned the item, since a wallet or phone contains private information, is valuable, and is the type of item a person would normally seek to recover if lost. But we also have an expectation of privacy in the wallet or phone because we can take steps to keep its contents private. Just because we take it out in public does not mean we are exposing its contents to the world.
DNA also contains private information and has a kind of value. But we cannot take steps to keep our DNA private in the same way that we can with a personal belonging. We are involuntarily shedding it wherever we go. Theoretically, anyone could follow us and collect it. However, most people wouldn’t have the resources to collect, examine, or analyze it. So is this a Kyllo type question based on the prevelance of DNA-analyzing technology to determine whether a privacy expectation is objectively reasonable?
October 6, 2011, 3:57 pmIspep Teid says:
Is this sarcasm? I can’t tell.
October 6, 2011, 3:58 pmOrenWithAnE says:
A few posts in and we have a winner! You can’t claim privacy in something you abandon!
October 6, 2011, 3:58 pmAdam says:
Your whole comment is very interesting, and you are probably right about the future of DNA as just another type of description.
But I think your insurance company question is pretty easily answered yes, unless and until there is some statute that defines a privacy right in DNA (maybe there are some already). Clearly they aren’t stealing your property or anything.
October 6, 2011, 4:03 pmShelbyC says:
Sorry, yes it is.
October 6, 2011, 4:04 pmMike S. says:
I don’t think that’s right about losing a wallet. I think many people who lose a wallet don’t expect it to turn up, and if it does, are thrilled if the only thing missing is cash. And actually, one would expect that their lost wallet would indeed be searched through, since a search is necessary to return the wallet.
October 6, 2011, 4:06 pmJeff J says:
Good points. I thought about this after I posted the previous comment. I agree that police could examine a lost phone or wallet to the extent necessary to identify the owner. But if the suspect in this case left it behind on the chair, and the police knew it was his, I don’t think they could look through it without a warrant.
October 6, 2011, 4:12 pmFmrADA says:
Bingo.
The law is not an ass, and yes this is the law. The suspect in this case was not detained or under arrest. He was asked to come to the station. He had the right to refuse. Refusing would certainly have increased the police scrutiny on him, but no citizen has the right to avoid scrutiny applied within the limits of the law.
Your distinction between a glass in a restaurant and a glass given to a person by a police office (and taken voluntarily) fails from a Constitutional perspective.
October 6, 2011, 4:29 pmFmrADA says:
By the way… I’m amazed by the reaction this decision is getting on a (somewhat) libertarian-leaning blog.
The Fourth Amendment establishes the MINIMUM requirements for police interactions and searches. If you believe in states’ rights, then vote for state legislators who will write in stronger protections. (Then you just have to worry about the FBI.)
October 6, 2011, 4:33 pmBag O Glass says:
I would say that to ensure the DNA collected on the chair belonged to the questioned person, he would have to return in person to submit DNA collected from his body to be used to compare with the DNA sample used in the lab.
I think it would be easier to FRAME someone with planted DNA evidence than it would be to fake a fingerprint, that is depending on the body source medium of the DNA
I’ve seen movies where they plant prints, but I can’t say for sure if that’s possible in real life, or if there was a procedure to distinguish a planted set from those actually left behind as evidence.
I don’t like it one bit.
October 6, 2011, 4:40 pmAdam says:
Except not, because this appeal is about the failure to exclude this evidence.
Really? You think libertarians (which I am not) favor a narrow reading of the 4th Amendment? Why?
October 6, 2011, 4:40 pmJ. Patrick says:
Supposing, just for a moment, that I (a non-lawyer with no legal training) can see the argument that wasn’t made by appellant’s attorneys, and that hasn’t been recognized so far by anyone here, and which has a mathematical force so strong that appellant would have almost certainly been granted a new trial. Given that assumption: Does anyone have any ideas for how I might quickly parlay my (untrained) legal acumen into a job in the Orlando area?
Or am I confined to contribute my insights in comment threads (which would be fine, I’m just asking)?
Incidentally, the logic of this mathematical argument is also a much more powerful reason why society at large should be concerned by rulings like this than anything mentioned in the thread so far.
October 6, 2011, 4:41 pmthebruce says:
Question for those that find this so troubling: what is the privacy interest that is violated by this search?
A suspect has no privacy interest in the home of another person (at least not under these facts), so I don’t see that determining whether the suspect had been in the home was private information. The DNA examination isn’t revealing intensely private facts about the suspect (that he is a Tay-Sachs carrier, or has Kleinfelter’s syndrome, etc.).
Is your concern that a possessory interest has been violated? In the skin cells or unnamed bodily fluid captured on the swab?
Second question: wouldn’t you rather your state legislature constrain this sort of police conduct that leave it to courts? California just banned warrantless cell phone searches incident to arrest except in exigent circumstances. I disagree with the ban, but it’s an effective way to handle emerging technologies.
October 6, 2011, 4:44 pmanon says:
I think it’s coercive to “ask” a person to come to the station for questioning. But okay, that’s basically fine.
However, once there, if the person refuses to participate in searches, I think it’s outrageous to use surreptitiously sampled fingerprints, DNA, biometrics, or anything else like that against him. I think there are 5th and 4th amendment issues.
I am though curious, does anything like my fictional scenario, guy comes into police station, voluntarily, handles a glass, and the glass is then fingerprinted, happen frequently?
I see it happen on TV under other circumstances. Does that happen in real life down at the station?
October 6, 2011, 4:49 pmanon says:
Science is terrific stuff. I use it, teach it, preach it.
I don’t think scientific advances should be exploited to get around the 4th or 5th by sophistry.
A judge saying that someone sheds skin cells, therefore they have abandoned them voluntarily, therefore it’s not a violation of the constitution makes me want to punch that judge in the face for abusing science, abusing the constitution, abusing the English language and insulting our intelligence.
Consider decisions that make it illegal for IR cameras to find grow houses.
How is that different than someone voluntarily shedding skin cells in a chair down at the station?
I think if we go down this path, we will quickly find that the 4th and 5th have no real meanings, or that the commerce clause can be used to determine every facet of our lives.
October 6, 2011, 4:54 pmOrenWithAnE says:
Fun fact! Most of the DNA testing done in the US is done on STRs and VNTRs which are random genetic noise, and only 13 loci at that.
In fact, the entire point is not to test any loci that have any important heritable function because that dilutes the statistical power of the test. STRs are really completely and utterly random and give you no more insight into a person’s private information than a palm reading or staring at her fingerprints.
[ Damn, bringing science into a legal argument is like pulling teeth. ]
October 6, 2011, 5:07 pmpete the elder says:
How is it coercive? They aren’t using force and he is free to say no if he wants to. Are police not supposed to be ask people to come in for questioning without a warrant or something?
House =/= police station. Again, no one forced him to go and the police never touched him or his property for this search.
October 6, 2011, 5:10 pmOrenWithAnE says:
The home is special, public spaces are not. The police certainly may not enter your home (or even curtilage) to gather your DNA. This distinction is 500 years old …
Indeed. Which is why when you get a hit from a chair or cigarette, that serves not as proof BARD to convict but rather probable cause to issue a search warrant specifically directed at that individual for his DNA to be analyzed according to the normal rules for evidence (chains, etc..)
October 6, 2011, 5:11 pmAdam says:
Please, please enlighten us, oh esteemed super-genius (so we can explain why you are wrong).
Hm. I’m not sure about that. It sure seems like looking at someone’s DNA is pretty intrusive, but you’re right, here they are just identifying, so maybe the concern is misplaced.
No, and I’m not sure why you ask. I’d rather have a robustly enforced 4th Amendment, rather than the one we have that has been so hopelessly debased by the War On Drugs to be unrecognizable.
Are there such decisions? I thought those cases came out the other way?
October 6, 2011, 5:20 pmOrenWithAnE says:
Whatever 4A claim you have, you are only making it weaker by raising the 5A completely out of its scope. It makes it sound like a “kitchen sink brief”.
October 6, 2011, 5:22 pmOrenWithAnE says:
Looking at the whole DNA might be intrusive. Looking at 13 loci of STRs that are (again, by design of the thing) not associated with any phenotype is a different matter. No one has proposed the former and, of course, the actual conduct was the latter.
Link.
October 6, 2011, 5:24 pmDave N. says:
I agree with OrenWithAnE and a few other commenters here.
I would add that someone made the comment that nobody would want to voluntarily come down to the station to talk to police based on this ruling.
Here’s a dirty little secret: Criminals, as a group, are pretty stupid. They are not required to talk to the police, but they do so daily. They are read Miranda rights if they are in custody — and then confess.
They give saliva swabs — even though the DNA from that test is pretty conclusive.
I find the histrionics here interesting, but this is the reality of the investigation as I see it (and to which Laura(southernxyl) alluded to:
The police have evidence of some sort that Mr. Raynor is a rapist. If Mr. Raynor is, indeed, a rapist, they want to catch him and arrest him before he rapes someone else.
The police invite him to the police station, ask him for a voluntary DNA sample, and he declines. The police don’t have the sample that can put the case to bed, but some police officer on the scene figures MAYBE there MIGHT be some DNA on the arms of the chair.
They weren’t planning on swabbing the chair; there might be (and probably is) a lot of other DNA on it; but they KNOW that based on the other evidence they have, that if DNA from the chair matches the DNA from the crime scene, then they have probable cause to get a warrant to force Mr. Raynor to give a pristine sample of his own DNA. And if it matches, they can arrest him so he doesn’t rape again.
The fantacizing about police setting him up so they can take DNA from the arm rest is the result of watching too much television and too many movies about how Hollywood thinks police do their jobs. But based on my experience it is not based on reality.
October 6, 2011, 5:27 pmtamerlane says:
I’m not an expert on forensic techniques but I think you are wrong on this. The vast majority of fingerprint impressions are latent. Most of the time they are not visible to the unaided eye and often require sophisticated techniques to make them usable, e.g., cyanoacrylate binding. Fingerprint technicians have a whole armamentarium of specialized techniques for doing this. After the fingerprints have been recorded, processing them for identification and matching requires an additional set of skills and techniques. I’d argue that the analogy between lifting samples for DNA analysis and lifting fingerprints is accurate, useful and legally valid.
October 6, 2011, 5:27 pmthebruce says:
Nope. Kyllo v. United States, 533 U.S. 27 (2001). Taught in every 4th Amendment training/course/seminar since then. Of course, if the Supreme Court subscribed to the Equilibrium Adjustment Theory (shameless plug for our host), with the increasing prevalence of public use of IR technology, we could see it overturned.
October 6, 2011, 5:28 pmFmrADA says:
The point is that one can use this DNA evidence — even if of low evidentiary value because the chair may have been occupied by a number of other people who might have contributed to the DNA sample — to justify probable cause sufficient to obtain a formal and admissible DNA test done pursuant to warrant. That’s good gumshoe investigation technique.
I’m not sure what 5th amendment privilege is implicated by voluntarily appearing in a police station “to explain yourself” and then being photographed. I mean, that’s what you’re basically talking about when you say “biometrics.” You’re saying the police can’t use your photograph at the police station to show a witness (or take measurements of your face to show 1,000′s of witnesses via a computer network).
As another poster asked, what is the privacy interest you assert when you walk through that station door without cuffs on?
October 6, 2011, 5:30 pmFub says:
In this case the implicit facile and IMHO dangerously fallacious argument is that because police used the chair DNA for PC to obtain a warrant for suspect’s known bodily DNA, and they happened to make a lucky guess, then the warrant PC was proper.
But how many people rested their arms on that chair? The chair DNA could have been from any of thousands of people.
Consider a counterfactual scenario: The police extract chair DNA which matches the rape DNA, get a warrant for DNA sample from Raynor (because they guess the chair DNA is his). His DNA does not match the rape DNA. The chair DNA came from one of the thousand others who had sat in the chair previous to Raynor. The police guessed wrong.
Raynor has now been subject to a search and seizure based upon empirically proven false PC. He’s now been publicly defamed by being named suspect in a crime he didn’t commit. His DNA is stashed away in a police collection for all eternity, making him a perpetual suspect in any crime where DNA samples exist.[1]
He’s entirely innocent, but he has no legal remedy. No court is likely to hear about the demonstrably false PC.
That’s what happens when police don’t make a lucky guess about who the chair DNA came from.
FN 1: The case strongly suggests that DNA samples are kept indefinitely. From page 3: “Appellant agreed to provide a sample on the condition that it would be destroyed after the investigation was concluded. When the officers declined to give such an assurance, appellant refused to provide a DNA sample.”
PS: Not related, except it involves one of Prof. Kerr’s favorite subjects — California’s 6th DCA just ruled that complete cellphone searches are justified in searches incident to arrest. People v. Nottoli, Case No. H035902 (CA Dist. 6 Ct. App., Sep. 26, 2011).
October 6, 2011, 5:34 pmAdam says:
Well, that explains it as my 4th Amendment course was before that. ;)
I guess so, although maybe its low evidentiary value is a separate reason to exclude, but there is little reason for defendant to argue that.
I guess at bottom my concern is the sneaking suspicion that in a case like this one it would be rather easy to fake it. The cops have DNA material from the rape kit. What’s to stop them from taking some of that, claiming they found it on the chair, and using the “positive” hit for probable cause for more searches (obviously, there could be scientific answers to that beyond my knowledge)? They might have some splainin’ to do if the subsequent testing doesn’t match, but it sure seems like it would be worth a shot if you think you have the guy but he just won’t consent to a swab.
October 6, 2011, 5:41 pmDave N. says:
Fub,
I am not sure how Mr. Raynor is publicly defamed in your counterfactual if the police get a warrant and the DNA test clears him.
In my experience, police will not announce a name until they make an arrest. In your counterfactual, Mr. Raynor would not be arrested unless there was other probable cause that he was, indeed, the rapist (perhaps the victim identified his picture, for example). If he is arrested and the case goes to trial (based, perhaps, on my hypothetical identification by the victim), then the DNA evidence would be strong evidence for the defense — and likely lead to an acquittal.
But the reality is that even with a victim identification, particularly in a stranger rape, if the DNA does not match, the likelihood of arrest or prosecution is vanishingly small.
October 6, 2011, 5:41 pmr2d2 says:
People commenting here are too concerned with the strength of the evidence. The post is about fourth amendment searches, not whether the DNA is proof beyond a reasonable doubt in court. These are separate concerns, and (to my knowledge) the strength of the evidence doesn’t influence whether a search ocurred.
October 6, 2011, 5:46 pmAdam says:
PC is a rather low standard. And the test suggests that the prep’s been in that chair, as has the suspect. Is it more likely than not that their suspect is the perp? Seems like a reasonable conclusion.
How?
October 6, 2011, 5:48 pmOrenWithAnE says:
They have drugs in their cars and consent to searches. Watch COPS — one cop literally turns to the guy he’s arresting point blank and said “why would you let me search your car when you knew you had dope?”. Our hapless perp had a lot of mumbles and no answer. And watching the video it was as clear of a consent search as it could possibly be — no compound questions, no insinuations, no delays.
Happens all the time.
October 6, 2011, 5:49 pmAdam says:
This is both why we have the Miranda decision and why Miranda isn’t much of a burden on law enforcement.
Also, it may not be as stupid as it seems. It’s doubtful that the prep in your cops video can really say no, as the cop can probably scrape together enough for PC.
October 6, 2011, 5:58 pmgab says:
“The police invite him to the police station, ask him for a voluntary DNA sample, and he declines.”
So it’s all right to get an involuntary DNA sample? That doesn’t seem right.
October 6, 2011, 6:01 pmShelbyC says:
Well, your body’s pretty special too. I’m not sure how getting information about your body that’s not typically available by normal means is different from getting information about the inside of your house that’s not available through normal means.
October 6, 2011, 6:02 pmTyler says:
First, there are problems with being certain that the DNA is in fact the Detainee’s. It should have to be established that the DNA found is indeed from the person in question..(requiring a direct DNA swabbing and warrant anyway)…..if DNA is so easily and frequently lost, exchanged and picked up, who is to say the DNA left on the chair did not belong to someone who touched the detainee or had touched an object the detainee had touched. Second, I don’t believe the same standard can be applied to DNA as Fingerprints. DNA has infinitely more valuable, personal, and private information stored within it than a fingerprint. To investigate and examine DNA which has been unknowingly left or otherwise is to tap into knowledge a wealth of predispositions and traits that should be considered private and personal information….The Wallet analogy is interesting, but applicable in a different way. DNA cannot inherently identify a person unless it can be ‘witnessed’ to have come from that person…a wallet can be linked to a person simply by looking in it for ID, whether or not the owner was seen or can be placed near it. If the wallet was witnessed to be left by a person, there would be no need for further search inside to determine ID…..I would liken the searching inside the wallet to any examination of the found DNA…necessary only to prove ID….BUT EXAMINING DNA BY ITSELF CANNOT REVEAL ID… Further more, assuming that the contents of the wallet must be searched for whatever reason, that does not allow the searcher access to the very valuable/personal info. contained. Should Bank account numbers/credit card numbers/ contacts etc. etc… be available Info for those doing the search?……I believe the same is true of our DNA….the Information contained within is private and not accessible without proper legal due process (warrant)….just as our bank accounts/email accounts/address books….you name it….would not be considered ‘abandoned’ and no longer private because we dropped our wallet.
October 6, 2011, 6:03 pmArthur Kirkland says:
A police officer?
October 6, 2011, 6:14 pmAdam says:
But examining fingerprints can?
Also, ellipses are not periods.
October 6, 2011, 6:15 pmDave N. says:
Tyler,
As several people have previously noted, matching the DNA from the chair and the DNA from the crime scene, in addition to other evidence that points toward Mr. Raynor, leads to the very low threshold of probable cause. Once there is probable cause, then a court can issue a warrant and Mr. Raynor can be forced to provide a sample.
gab,
They got the sample from a place where Mr. Raynor had absolutely no expectation of privacy — unless you think being in a police interview room with several police officers is somehow “private”.
October 6, 2011, 6:16 pmArthur Kirkland says:
Difficult to argue with that. Perhaps the next stop will be “frisks” that generate DNA samples!
One solution: Hire a better class of law enforcement personnel and/or arrange more sensible, less authoritarian appellate judges. Longshots, both. You get what you pay for — or, in far too many cases, overpay for.
October 6, 2011, 6:17 pmArthur Kirkland says:
Does anyone know how many other suspects were placed in that chair, duped into providing a DNA sample, and cleared? This reminds me of the drug warriors’ use of dogs — the accurate “positives” are used to convict people, the false “positives” are submerged, and the Fourth Amendment is weakened with each bark, each swab, each longshot that pays off and is used by big government to justify its mediocre, objectionable law enforcement performance.
October 6, 2011, 6:22 pmShelbyC says:
By jingo, I think you’re right! Maybe this test really doesn’t demonstrate much, after all.
October 6, 2011, 6:23 pmOwen H says:
Bad evidence should never be cause to obtain good evidence.
The biggest issue is, as stated numerous times, proving it is in fact his DNA.
October 6, 2011, 6:27 pmPrometheeFeu says:
I think we have to ask what the purpose of the Fourth Amendment is before we look at this. The purpose does not seem to be forcing the police to jump through hoops in order to get evidence. The purpose seems to be protecting your “privacy”. What is private about your DNA profile? In what way is it different than a police officer snapping a picture of you, recording your voice or smelling you when you enter a police station?
October 6, 2011, 6:32 pmJ. Patrick says:
Ime, once commenters become attached to a position, they defend that position vigorously and without regard for the truth (only regard for the strength/truth of their case). So I don’t expect any good faith effort from you to understand me (since you’ve established yourself in opposition), and that’s fine as far as it goes.
So how about this: I’ll lay out the argument likely missing from the appeal (based on what was addressed in the opinion) that I believe *would have given appellant a much better chance (and a good chance) of success on appeal.* The argument emanates strictly from the facts of the case, common sense, and the law. You make whatever response you want, and that can be the last word. But I’d like this to be evaluated by people with an open mind.
So:
Any volunteers to consider my claim? The more the better.
Seriously, I would love to be slapped down on this. I’m really developing a Casandra complex here at VC of late, with no idea whatsoever whether my opinions and arguments are being ignored from the outset, or having some sort of influence. So that feedback would be really helpful. If the balance of judgment goes against me, I will refrain from trying to contribute in the future via pure reason rather than special knowledge (that is, I’ll shut up for the most part).
Adam, agree to this?
Attorneys willing to give this consideration?
Now I have to go to my gfs softball game. No idea if any volunteers will step forward, or if Adam will agree. If so, though, I’ll be making my response sometime tomorrow.
PS It’s also frustrating to be someone who thinks they have something important to offer–even to Attorneys on a question strictly of law!–and yet can’t find a job. Eh, I’d almost rather have nothing to offer (hence the welcome of slap down).
October 6, 2011, 6:32 pmJarbidge says:
Going forward, though, don’t you think that DNA testing the interview chair would become SOP?
On the public policy angle, you can certainly make the case that, in addition to footprints, every baby should be DNA matched, finger printed, and retinal scanned. It would certainly make it easier to catch criminals – you could use DNA evidence to catch rapists the first time instead of the second (and would also raise the cost of adultery!). Maybe it’s just me, but I find that prospect less creepy than SWAT raids for misdemeanors and blanket sobriety checks,
However, if society decides that it isn’t acceptable to mandate a cheek swab on demand, it doesn’t seem OK to force someone to sit in a chair and then swab the chair. The Fourth is, IMHE, about not having the police hassle innocent people. If I’m an innocent rape suspect, it’s less intrusive to knock on my door with a swab than to drag me downtown and make me sit in an uncomfortable chair until enough DNA transfers. Saying that the less intrusive process is not OK, but the more intrusive one is OK defies common sense (sorry, couldn’t resist :-)).
October 6, 2011, 6:40 pmSeaDrive says:
Not reasonable at present because in the average police department, DNA testing takes too long.
And/but you may not a be in the public space voluntarily.
October 6, 2011, 6:41 pmneville chamberlain says:
If a warrant has issued upon probable cause and a forced DNA sample collected, how does this square with:
nor shall be compelled in any criminal case to
October 6, 2011, 6:43 pmbe a witness against himself
Kazinski says:
Your original comment suggests that its your personal view:
I certainly recognize your view as more authoritative than my own, but not quite as infallible as the Supreme Court. But when I do follow your link to Skinner, I don’t find the decision at odds with my personal view:
The Supreme Court clearly references the manner of collection in its analysis, and I don’t think the decision even hints that the method of analysis to provide information on the identification has privacy concerns.
Clearly there are privacy concerns with using DNA or urine analysis or blood samples for extracting medical information. Skinner only mentions privacy concerns in conjunction with “medical information” and Raynor make this distinction in their decision. That also seems to contradict your assertion that the 4th amendment does not impose use restrictions.
[OK Comments: I fear you are misreading both my post and the Skinner case.]
October 6, 2011, 6:47 pmFub says:
Word gets around, especially if police want it to. When someone is cleared, not so much. This happened in Maryland after all.
If police had used any technically savvy procedure in their lucky gambit, if they had scrubbed the chair clinically clean and had it certified by an appropriate medical professional before they invited him to sit in it, then there would be no question about PC.
But Maryland police and sheriffs like to cut corners when they think they can get away with it. Sometimes their guesses aren’t so lucky. Google “berwyn heights cheye calvo” to see one example of many.
October 6, 2011, 7:01 pmDave N. says:
Because evidence a person is compelled to give via a warrant IS NOT testimony. It is really that simple. Honest.
October 6, 2011, 7:07 pmFub says:
This. Exactly.
October 6, 2011, 7:07 pmDave N. says:
J. Patrick,
I am not sure exactly what your argument is. Perhaps I am being dense. Could you explain it? I will be more than happy to examine your argument, provide a counterargument, or even agree if I think your argument has merit.
October 6, 2011, 7:10 pmKazinski says:
That doesn’t reflect reality, in Federal courts at least. Orin did a post on that back in April. Currently there has to be an up to date certification for the dog for a “hit” to be probable cause:
October 6, 2011, 7:20 pmanon says:
I find it interesting in and of itself that people, presumably lawyers here, wonder how being asked to a police station is coercive, even after our former ada admits that saying no will increase police attention.
Isn’t there a whole string of legal philosophy about this, culminating in the 5th Amendment and other rights strictly because of this!?
Anyway,
“I’m not sure what 5th amendment privilege is implicated by voluntarily appearing in a police station “to explain yourself” and then being photographed. I mean, that’s what you’re basically talking about when you say “biometrics.” You’re saying the police can’t use your photograph at the police station to show a witness (or take measurements of your face to show 1,000’s of witnesses via a computer network).”
I admit I have much less problem with the cops taking a photograph to show to human witnesses than with other biometrics, for example, computerized face recognition or anything that might come up that allows the police to surreptitiously sample a suspect’s body.
Our glorious wiki states:
“Biometric characteristics can be divided in two main classes:[1]
Physiological are related to the shape of the body. Examples include, but are not limited to fingerprint, face recognition, DNA, Palm print, hand geometry, iris recognition, which has largely replaced retina, and odour/scent.
Behavioral are related to the behavior of a person. Examples include, but are not limited to typing rhythm, gait, and voice. Some researchers[2] have coined the term behaviometrics for this class of biometrics.”
So yes, I do think that within a few years, that based on face recognition, DNA, scent, iris recognition, voice recognition there will be all sorts of ways for the police to positively identify someone in a way, against their will, using information that we do not commonly regard as public information but that science makes possible.
And yes, to answer OrenWithAnE, I do not see how giving up private information, from my body, against my will, is not a 5th Amendment violation of my right not to incriminate myself.
Luckily since I am an engineer and not a learned sleezebag lawyer, I have not learned all the fine hair splitting that allows for dumbass decisions that says that going bald and shedding hair, shedding skin cells, tossing a used condom into a trashbin after saying you absolutely don’t want to become a father are all voluntary decisions and even gifts.
The rest of us understand that such bullshit is precisely why society holds lawyers with a well-deserved contempt.
October 6, 2011, 7:22 pmFub says:
But most dog sniff cases are in state courts.
October 6, 2011, 7:25 pmDave N. says:
Fub,
I acknowledge I lived in Maryland 25 years ago, so I wasn’t aware that the Maryland State Police and the Prince George’s County Police have merged, or that Harford County was now adjacent to Prince George’s County.
October 6, 2011, 7:28 pmOrenWithAnE says:
Miranda doesn’t apply to a conversation during a traffic stop.
Either way, it couldn’t possibly help them to consent.
(1) It’s really not that hard. Anyone could do it to anyone else at any time. You’d have to go all Howard Hughes to avoid it.
(2) Collecting something discarded from the body is not the same as invading it, much in the same way that rifling through your trash is not the same as breaking in the door and rifling through your cabinets.
In the instant case, the perp was.
Physical evidence is not the same as a “witness” – the clause protects testimony, it does not protect non-testimonial evidence such as DNA.
October 6, 2011, 7:29 pmOrenWithAnE says:
As it happens, the current 5A doctrine does not even remotely apply. Nor is there any “private information” in VNTRs in all but the most shallow sense.
Also, I don’t think you believe what you just wrote. A woman comes into the ER claiming to have been raped by person X, there is physical evidence suggesting a violent encounter, they perform a rape kit and get the perp’s DNA from semen and from underneath her fingernails — you think the 5A really says that the police cannot get a warrant for his DNA upon this whole-heaping-mess of probable cause?!
Think carefully about your answer.
October 6, 2011, 7:35 pmLex Apostata says:
I fail to see how the fact that you need an electropherogram to compare DNA as opposed to a stereo microscope to compare fingerprints makes any difference from a 4th Amendment perspective. That makes no sense at all.
Moreover, the only information taken is the 13-loci “junk” DNA that is used only for identification purposes; it’s essentially a 26-digit-long unique identifier. Fourth Amendment precedent is clear that you have no privacy right in your identity — Crews is the first case that comes to mind, but there are others.
The fact that there is (theoretically) more information contained in DNA than in a fingerprint has nothing to do with the validity of the search. Otherwise a rectal probe that revealed nothing would be a lesser search than pulling a fingerprint off of a glass.
Anon, your Manichean rigidity is the reason I hold engineers in contempt (and why I’m always astonished when one of them manages to achieve reproductive success).
October 6, 2011, 7:40 pmDave N. says:
This comment thread has reminded me of a CLE I want to put together at some point in the future: “Law As Taught on Television” — so that I can illustrate some of absurdities (the entire 5th Amendment discussion in this thread for example) that are out there that the general public, and even some lawyers, believe the law is or requires because they have seen it on television and in the movies.
October 6, 2011, 7:41 pmDave N. says:
I apologize for the earlier snark, but fub’s comment
deserved snark when he impugns one agency — the Maryland State Police conducting an investigation in Harford County — with the actions taken by a totally seperate agency two counties away in Prince George’s County.
October 6, 2011, 7:47 pmFub says:
My view, having never lived in Maryland my view from reading incidents in the news is that police and prosecutors there are out of control if not patently corrupt. Too many bad cases in too many places. Maybe some counties, cities, departments or agencies are less bad, but its better not to take a chance by living there.
October 6, 2011, 8:02 pmTyler says:
Though there may be no apparent purpose for police use of DNA other than identification at this point in time….I would be more concerned with the future. The DNA is undoubtedly stored, documented, and catalogued, leading to a database of DNA, even for samples that ended up being dead ends. One concern is how accessible this may become, legally or not, to any number of branches of government, corporations, or other interests in the future. There must be strict scrutiny in determining probable cause to obtain and analyze any DNA sample, ‘abandoned’ or not. The resources required and the risk of allowing Genetic information to be whimsically collected and analyzed are too great.
October 6, 2011, 8:29 pmneurodoc says:
Sounds like something from that superb movie, The Lives of Others, in which the East German Stasi had dogs sniff the sweat left on a seat by those they interrogated. The Stasi, of course, didn’t have any Fourth Amendment to worry about.
October 6, 2011, 8:50 pmneurodoc says:
Wow! That’s a pretty unequivocal expression of disapproval.
October 6, 2011, 8:55 pmneurodoc says:
That’s a pretty harsh statement, but it is not altogether baseless. DOJ has had to devote a lot of time to the PG police, and still there are big problems with that department (e.g., cop-killers mysteriously dying in their cells; college students doing nothing wrong other than to be around a rowdy crowd after a football game getting beaten; etc.)
October 6, 2011, 9:01 pmr2d2 says:
To be fair to the hapless perp, they probably think it is a trick question and don’t realize that they can actually refuse. I bet that a lot of people think this way and I can’t blame them.
October 6, 2011, 9:08 pmOrenWithAnE says:
CODIS only stores those 13 VNTR loci …
October 6, 2011, 9:10 pmScott from Ohio says:
Regardless of whether it’s right to take such a DNA sample, how convincing is it that the collected DNA actually belongs to the man they think it belongs to? How many other people had sat in that chair that day, or ever? How long of a time period would have to pass with no one sitting in the chair prior to this man sitting in the chair to have any confidence that any DNA collected is actually his?
October 6, 2011, 9:21 pmOrenWithAnE says:
Watch the various videos. Perps will consent even when the question is phrased in the plainest English.
I don’t “blame them”, really but on the other hand, the 4A does not protect the idiotic from consenting to a search that finds prohibited substances (or other evidence of a crime).
October 6, 2011, 9:46 pmFub says:
Nice car/house you’ve got there. You look like a law abidin’ type of guy, so I’m sure you wouldn’t mind me taking a look through it, would ya?
Be a shame if I had to go swear out a warrant, ’cause then we’ll be here all night, and they’d send out a crew of guys I don’t even like. They’re scary and I never know what they’re gonna do.
But me, I’m honest and treat people right. I really don’t like those guys I hafta work with.
Whaddaya say?
October 6, 2011, 10:21 pmjcc says:
@ Anon -
“I am though curious, does anything like my fictional scenario, guy comes into police station, voluntarily, handles a glass, and the glass is then fingerprinted, happen frequently?”
Not really. Most of the guests in interrogation rooms have multiple prior arrests, and the fingerprint standards are readily available, even from other state or Federal databases.
@ Dave N -
“They weren’t planning on swabbing the chair…”
After reading the decision, although it does not say so specifically, I have to agree that the cops took a shot at this with no apparent preparation. I’m thinking they will do so next time. I would suspect that actual cases where DNA would be probative but the cops lack even PC to obtain a cheek swab (from an individual suspect) are fairly rare.
But a good trick if it stands, which I presume it will.
October 6, 2011, 10:30 pmDave N. says:
Actually, if it was phrased that way, the search would likely be suppressed. You honestly have no idea how police conduct investigations, do you?
October 6, 2011, 10:54 pmJ. Patrick says:
That’s because I haven’t made the argument yet. I was waiting to see if someone else would come upon it. The appellate court’s opinion, Orin’s original post, and this entire thread has made me very angry, and strongly supports the view I expressed in the “Don’t talk to the police” thread that a suspect must weigh the possibility of his potential attorney’s inadequacies if/when he chooses to go that route.
David N., Adam, Anyone, please consider the following:
First, some facts:
The appellant was not brought in for questioning until *two years* after the original rape occurred. Investigators asked him to take a DNA test, and he agreed, but only if the sample would be destroyed after the investigation was complete. Investigators declined to provide that assurance, but took the DNA off the chair he was sitting in. The DNA matched, and they got an order for a cheek swab, which matched with 99.57% certainty.
*There is no further meaningful evidence discussed in the appeal which connects the appellant to the crime.* The only further “evidence” is that the rape victim said she smelled a “metallic odor” on the assailant and then–two years later!–the investigator claimed to detect a metallic odor on the suspect, and that the suspect gave “peculiar answers,” *after the first DNA test connected the suspect to the crime.*
Further, the state withheld numerous emails from the victim to the investigator, which the victim characterized thus:
***
I think it is fair to say that this entire prosecution rests on that 99.57% DNA match. Let’s just go with that assumption for now.
A match of 99.57% means that “neither appellant nor any of his male paternal relatives could be excluded as a potential contributor to that DNA sample, but that 99.57% of the male population in a country the size of the United States could be.”
Now, two years after the initial rape they come upon someone with a 99.57% match to the perpetrator and *here is the crucial question not present in this thread, Orin’s OP, or the appeal*:
How many suspects did the police test in that two year period? Because, mathematically, the number of tests that they conducted determines the odds that they have the right person. NOT JUST THE SENSITIVITY OF THE TEST (99.57%).
By failing to turn over the emails, *the prosecution prevented the defendant from independently obtaining substantially exculpatory information relating to the actual odds of innocence vis-a-vis the number of tests conducted.*
***
Now let me make this intuitively clear to you.
Suppose 200 people at random, off the street, were given that DNA test and one person was found to be a match. Would that mean anything? No, obviously not. We expect 1 person in 200 to come up as a match because that’s what the tests own sensitivity numbers tell us will happen.
The victim in this case named every person she could think of. *They didn’t even bring this suspect in for questioning until TWO YEARS later, and not because he did anything to draw attention to himself. He was just another in a long long line of expressed possible suspects.
At a minimum, I would guess that at least 10 tests had been done on suspects and possibly *much more.* In actuality, this suspect had substantially less than a 99.5% likelihood of being the perpetrator as indicated by the DNA test.
Thus, the appellate courts conclusion that:
is incorrect. The suspect’s conviction was based entirely on the value of a highly misleading statistic, and he was denied due process in not being given access to information that would have allowed him to challenge the validity of that statistic.
Since Dave is the only one who expressed an interest in this, I haven’t taken the time to specifically discuss this in the context of the criteria laid out in the appellate court brief or to make the strongest case I can in that regard. Nor have I formalized it, or the obvious corrections (which would hopefully be present in jury instructions). But I feel like you should all be aware that permitting the state to obtain DNA evidence surreptitiously as in this case represents a substantial danger that the number of false convictions based on DNA evidence will rise (because the number of tests goes up).
PS Similar logic can be used to show that a person who fails two drug tests, each with 95% accuracy, will under certain realistic assumptions only a 50/50 chance of having actually used drugs.
October 6, 2011, 11:31 pmKen Arromdee says:
You win… (Seriously.)
October 7, 2011, 12:02 amAaron says:
I have to agree with J Patrick and had been thinking about this as i read the comments. The other serious concern is implied in J Patrick’s post: “Suppose 200 people at random, off the street, were given DNA tests . . . .” Allowing evidence of DNA on a chair to be admissible at trial will encourage the police to actually bring 200 people off the street and test the chair after each one sits in it. This is troubling because it enables to police to avoid actual police work and engage in what are essentially suspicionless searches as well as enhances the likelihood of erroneous positives. For instance in paternity tests, out of 259 men who were known non-fathers, two of them tested between 97 and 99.8% matches. See http://www.dmqlaw.com/articles/DNAPaternityTests.pdf.
Innocent citizens should be concerned because due to the inability to be 100 percent certain of a match, wild goose chases can result in obtaining and searching your DNA and then finding yourself defending against charges of a crime you in fact had absolutely no connection to.
October 7, 2011, 12:04 amKazinski says:
Yes, and if you go read OK’s post that I referenced, he was pointing out that the Florida Supreme court was enforcing a stricter standard than the 10th circuit. If a state were to enforce a lower standard than that enforced by the federal courts, then it would almost certainly be reversed if the appeal hit the federal courts. Of course there might be minor differences among the circuit courts of just how accurate the dog needs to be to reach the probable cause standard, but it certainly is not the case that its a “longshot” that there will actually be drugs present when a trained dog signals their presence.
October 7, 2011, 12:33 amtwency says:
Latent fingerprint fabrication is both possible and does occur. I have seen some of the evidence, presented by the author of the piece linked below.
Latent Fingerprint Fabrication
October 7, 2011, 1:09 amDave N. says:
J.Patrick,
I believe your math is wrong, and the odds of this particular defendant matching do not change at all, regardless of how many other people are also tested, but it is late and I do not have time to think about it closely tonight.
Kazinski,
While I agree that a state can have a stricter standard than the federal one — the Constitution provides a floor, not a ceiling, a state conviction cannot be reviewed in federal court based on a bad search. Fourth Amendment claims were specifically excluded from federal habeas corpus by Stone v. Powell, 428 U.S. 465 (1976). As a result, the only federal court that can review a state’s Fourth Amendment decision is the United States Supreme Court.
October 7, 2011, 1:13 amJ. Patrick says:
I believe you believe that, and I look forward to your more rested perspective. And thanks to Ken A. for the vote.
October 7, 2011, 1:36 amAnonLurker says:
Yup, I believe you are correct.
Most people find this counter-intuitive, but that’s just because conditional probability is inherently unintuitive, and our intuitions about conditional probabilities are often wrong. (Witness the Monty Hall problem as one well-known example.)
My impression is that misunderstanding of how to properly apply statistics (e.g., in the context of DNA evidence or fingerprint evidence) is all too common. I’d provide citations, but most people’s eyes glaze over when they see math that looks difficult — even if it’s not all that hard to understand after all.
By the way, as I recall, I believe there’s a name for this statistical fallacy: “the prosecutor’s fallacy”.
October 7, 2011, 1:45 amAnonLurker says:
Thanks for the immediate reaction. I hope you’ll elaborate more about your reasoning after you’ve had a chance to rest and think about it on a clear head.
I believe that you are calculating the probability (odds) of the wrong thing. We know what is the probability that this particular defendent came up as a match: we are told that he did, so this probability is 100%; there is nothing to compute. But that is not the probability that is relevant. The probability we care about is the probability that this particular defendant is in fact guilty, given all of the evidence. To compute that probability, we must know how many people were tested.
I think J. Patrick is correct. Suppose the policy tested 200 innocent people, and suppose that if any of them are a match, then the prosecutors will prosecute that individual. Then it is a near certainty that one of them will test positive, and will be prosecuted, even though he is innocent. That person would be in the identical position of having evidence brought against him — despite the fact that he is innocent. In short, the fact that the test is 99.57% accurate does not mean that there’s a 99.57% probability that this defendant is guilty. In fact, the probability that this defendant is guilty could be just about anything from 0% to 100%, depending upon information not provided to us (e.g., about the number of people tested).
October 7, 2011, 1:51 amClark says:
I haven’t read the details outside of your comment, but do they really not have any other significant evidence that links this suspect to the crime? Surely, they can’t convict primarily on a match that could, in theory, succeed for ~1.5 million adults in the country, and 25000 people just in Maryland??? Heck, you shouldn’t need a Cochran to figure this out…
October 7, 2011, 5:13 amJarbidge says:
Here’s an intuitive analogy to DNA probabilities: you somehow know that the perpetrator’s birthday is March 11th. If, armed with just that knowledge, you start stopping people at random on the street and checking their birthdays, finding that someone’s birthday is March 11th is not strong evidence they are the guilty party and certainly not to a probability of .997 (364/365).
If you, using other evidence, decide that Joe is your man, then check his birthday and find it is March 11th, that is good evidence you have the right guy.
This is not novel science – there was a case a few years ago where they did a blind search of the DNA database in AZ (??) and came up with multiple matches. Ahh.. here’s a link.
October 7, 2011, 9:18 amOrenWithAnE says:
A threat to get a warrant when the officer doesn’t have PC would vitiate consent, 100%. United States v. White, 979 F.2d 539 (7th Cir.1992) (“Baseless threats to obtain a search warrant render consent involuntary.”)
October 7, 2011, 9:27 amOrenWithAnE says:
Except that a large fraction of those false-positives will be excluded on other grounds. Some of them will be the wrong gender, some will be young children, some will be too old, some will be too frail to have raped, some will have been out of town on the day in question, some will have an alibi, some will be excluded by the defendant’s description of the perp.
You are technically right in your analysis but you fail to include the fact that there is more information here. The odds of this guy being an innocent random incorrectly convicted by the test is not just the test being wrong but the test being wrong multiplied by all of the above. It’s one thing to imagine that you get a positive hit on an innocent individual by randomly testing — quite another to imagine that you get an innocent Caucasian male age 20-35 matching the description that happened to be in that zip code during the crime and has no alibi.
Indeed. The strength of DNA is not that it closes the case by itself but that it is entirely independent-of and uncorrelated-to other evidence.
October 7, 2011, 9:39 amBrian Thomson says:
Overlooking the possibility of selection does make the conclusion suspect.
October 7, 2011, 9:57 amI secretly want to see the defense battle sloppy statistics with their own sloppy statistics. After all, excluding 95.57% of American males means we should expect about 700,000 positives, of which at most one is valid. Clearly, no evidentiary weight should be given to a test result that is correct only one time in 700,000…
OrenWithAnE says:
This is misleading. They searched the entire DB, pairwise, for matches. That proves that, out of a trillion pairs (million x million), there are some coincidental matches. That’s to be expected — if our false-positive rate is 1 per billion then we expect a thousand false matches in such a full-on pairwise search of a million people.
IOW, 1/1000 individuals in the DB has a single false hit when tested against the entire DB. That doesn’t even remotely prove anything about the false positive rate between a particular defendant and a particular sample taken from a crime scene.
October 7, 2011, 10:43 amKen Arromdee says:
It’s easy to randomly test Caucasian males ages 20-35, in which case the result is just as bad.
And few people would have alibis for things that happened two years ago.
October 7, 2011, 11:43 amFub says:
If it was phrased that way, and justice were actually served, not only would the search be suppressed but the ex-policeman would be looking for a new job after he got out of prison.
But as “justice” is presently administered that phrasing would never be found fact by a court, short of publication of an authenticated recording embarrassing the court by public exposure of the truth. And even then the offending police officer would not be sanctioned beyond “suspended with pay pending internal investigation.”
I’ve heard enough eyewitness accounts, heard enough testimony, had thankfully few but enough personal encounters, seen enough police training videos, and read enough press accounts, to form a reasonably accurate picture of how police who chose to press or exceed the bounds of human decency and even the law, do so.
If police leadership, prosecutors and judges did not reflexively believe (or pretend to believe) accounts by misbehaving policemen, and did not grasp at every straw to discount accounts by ordinary citizens, such police misbehavior would diminish.
I’m as big a fan of actual law and order as any prosecutor or judge. I just believe that those who enforce law should be at least as accountable for violating law as ordinary citizens.
October 7, 2011, 11:45 amLex Apostata says:
First, just to (once again) respond to all of the people wondering how the police knew the chair DNA belonged to the suspect — the chair DNA was not used at trial. The chair DNA was used to show probable cause to get a warrant to get a controlled buccal swab which they were quite sure was his. Moreover, modern DNA analysis is frequently able to seperate DNA from multiple donors.
Second, there was additional circumstantial evidence to bolster the DNA identification. The suspect lived in the same neighborhood, knew the victim, and was a former tenant in the house where the rape took place.
Third, it appeas that the DNA testing in this case was “YSTR” testing (because the opinion says it could not exclude the suspect or anyone in the same paternal line). Thus the statistical factor is a bit unusual in this case; the ordinary 13-point nuclear DNA match creates a much, much small statistical likelihood of a random match.
And “random match” is the key concept. The statistical analysis being undertaken in these comments is a common fallacy. There are statistical fallacies that work in both directions in DNA cases and it’s because you’re giving the wrong answer to the wrong question. The “birthday paradox,” for example, shows the likelihood that two people in a group will have the same birthday is smaller than you would think — with 23 people there is a 50-50 chance of two sharing a birthday, with 57 people there is a 99% chance. But this assumes a random match of ANY TWO BIRTHDAYS — not a match to a specific birthday. A rape is committed by a specific person, and therefore it is not a “random match.” You aren’t looking for two people with the same DNA — you are looking for one person with very specific DNA.
Think of it this way — if the DNA recovered from the rape were loaded to a database containing the DNA of every male alive at the time of the rape, the odds of there being a match would be 100%. The fact that a match is inevitable does not mean that it’s wrong.
October 7, 2011, 11:57 amAdam says:
I think you have put your finger directly on the difference of opinion. And I think most people think their DNA is different than their picture, voice or ambient odor, not least because humans are not biologically equipped with the ability to perceive DNA.
This is a faulty assumption. This decision is an appeal on a particular evidence question, not a full review of the record.
Most likely none. They do not have infinite resources.
This is also correct, although he isn’t talking about the odds of this particular person matching, he’s talking about someone at random matching.
And of course it’s correct, that if you test enough people, you will get a match. If the people are chosen at random, that might suggest that the positive test means little.
But the people aren’t chosen at random, and there is other evidence to add to the positive test.
This is only one of the errors in understanding probabilities in your comment, but this is wrong and not the way it works. Assume random distribution (which is wrong, but the best we can do in the abstract), and you can only say that on average 1 of every 200 will test positive. For example, the pattern could be 1 hit, then 300 misses, then another hit, 98 misses. That is very different from “virtually certain” to get a hit in 200 tests.
Really? Before DNA, we used blood type for years. Combined with other evidence, it says something, although not much.
October 7, 2011, 11:58 amAdam says:
It is?
Sorry, but I think this is wrong. Isn’t this is a challenge to the trial court’s refusal to exclude this evidence at trial? Or am I missing a wrinkle of Maryland criminal practice?
But it wasn’t the only evidence used at trial, which included the results of the later controlled swab.
October 7, 2011, 12:11 pmJ. Patrick, in pro per says:
Anyone who understands what I wrote care to offer advice w/r/t:
My resume primarily consists of an undergraduate degree in psychology, a couple years of grad school in a cog-psych program, and many years of playing poker for a living (until the guv’ment shut down online poker). 34 yo wm. I have had five royal flushes, if that helps.
PS If you all want to lobby Eugene Volokh to give me space on the front page to clarify all this for you all, including the necessary corrections for the number of tests, I’ll do that.
October 7, 2011, 12:11 pmKen Arromdee says:
If the DNA from the rape were loaded to a database containing the DNA of ever male alive at the time, the odds of a match would be 100%, but the matches found would include one guilty person and hundreds of thousands of innocent people.
The odds that someone is guilty given that their DNA matched would be hundreds of thousands to one against.
October 7, 2011, 12:15 pmLaura(southernxyl) says:
But that is not what they did. There was nothing random about testing him.
It’s like false positives on drug tests. If you randomly test the population, you’ll have a scary rate of false positives. If you only test the people who act like they are high or stoned, your false positive rate will go way down.
Similarly, in this case they didn’t pull random people walking down the street. His positive test wasn’t a test among random Americans. It was a test among men of the right age, etc., who were in the area and had reason to know the layout of the house and (probably) that she lived there alone. Not random at all.
October 7, 2011, 12:39 pmHasdrubal says:
It seems to be that there currently is a privacy right to your DNA profile because the police had to ask to sample his DNA and he had the right to refuse.
If that is the case, it seems to me that the police violated that right by intentionally creating a situation where they would be able to get that information regardless of whether or not he refused.
If he has the right to refuse giving a DNA sample, what does it matter whether they used a cotton swab on his cheek or the arm of a chair to get that sample?
Maybe he shouldn’t have a right to refuse to provide a DNA sample. That’s a reasonable question. Do you have a right to refuse to be fingerprinted? But as long as you do have a right to refuse to give a DNA sample, I don’t see how the police can legitimately put you in a situation that gives them the opportunity to take a sample after you’ve refused their request.
October 7, 2011, 12:44 pmDave N. says:
I was going to respond, but OrenWithanE, Adam, Laura(Southern xyl), and Lex Apostata (except for his belief the chair DNA was not used at trial) have all made the salient arguments and there isn’t much more I can add.
I believe that the confusion over the chair evidence exists because there is the later DNA evidence as well. The argument on appeal was that if the chair evidence was excluded, then the later DNA evidence would also have to be suppressed as fruit of the poisonous tree.
October 7, 2011, 12:47 pmDave N. says:
Hasdrubal,
Let’s run with your fingerprint analogy. You absolutely DO NOT have any responsibility to give the police a fingerprint sample just because they ask for it. You have EVERY RIGHT to say, “Sorry, no. I won’t do that.”
However, suppose you were being interviewed at the police station and they asked you for your fingerprints and you declined. The helpful police officer asked if you were thirsty and very thoughtfully used his own money to buy you a soda from the vending machine down the hall.
You take a few sips, heck, maybe you drink the whole can, but you leave it on the table when the interview concludes.
Under current caselaw, the police have every right to take that can and check it for fingerprints. I am not sure the courts would have much heartburn if they also sent the soda can to the lab to check for DNA from your saliva.
October 7, 2011, 12:54 pmpete the elder says:
Because the 4th amendment says secure in your person. Taking a sample from a chair doesn’t make him insecure in his person, while forcibly sticking a swap in his mouth does.
October 7, 2011, 1:00 pmBrian Thomson says:
Hmm. Guess I should have used a smiley face on that comment, too.
For those keeping score, my “logic” also has a name. Not surprisingly, it is the “defense attorney’s fallacy”.
October 7, 2011, 1:02 pmOrenWithAnE says:
No, because your odds of a hit go down by a factor of their prevalence in the population. Fewer still will meet the description of the perp given by the victim. Fewer still will have lived in the area at the time of the crime.
Although you are right, the strength of the test does depend on what order facts were known (i.e. whether we tested everyone that and pulled those that matched the description AND were positive on the DNA test or whether we found people that matched the description and THEN tested them).
October 7, 2011, 1:21 pmOrenWithAnE says:
As well it should be, as it formed the entire PC for the warrant for the swab.
October 7, 2011, 1:22 pmJ. Patrick, in pro per says:
The odds of an accurate conviction are actually lower–not higher–testing under the circumstances you describe.
***
No matter how much other evidence is used along with the DNA evidence, if counterfactual exclusion of the DNA evidence would imply acquittal, then *you must make a correction for the number of tests*
I am happy to clarify the *severe mathematical/logical misunderstanding* evident in the comments of many who posted in response to my explanation, and further explain what adjustment needs to be made w/r/t the number of tests. The adjustment itself is not intuitive, although I would have thought that the necessity of it would be transparent. However, I’m not going to go through that substantial effort just to post a comment at the end of a thread that I don’t know if 1 person is going to read, or a thousand. So if Eugene Volokh is willing to consider my explanation for publication to where the conspirators live, then I’ll be glad to write it. Or, I’d be likewise happy to see Orin Kerr or Eugene Volokh discuss this issue themselves. I’m sure they can do a better job than me.
October 7, 2011, 1:31 pmKen Arromdee says:
Here’s another hypothetical: The police decide to hold you for a long time in a hot cell. They provide you with water, but if you accept the water they can get your prints off of the glass.
Here’s a second hypothetical: The police hold you for a long time in a hot cell without giving you any water. Then they hold out a glass of water and say “we’re not going to let you drink this unless you agree to give us your fingerprints separately.”
In the second case, they are obviously forcing you to give the prints. They put you into a situation where you would need water, and then withheld the water unless you agree to their terms.
The first case is pretty much the same thing. What’s the difference between “I will only let you drink this water if you give me your prints separately” and “I will only let you drink this water under circumstances which let me get your prints from the glass of water”?
The difference between either of these and your scenario is that in your scenario, the person actually is free to refuse the water.
I’d say that the DNA example is closer to my scenarios than yours. If the chair (and presumably the floor, if he sits on the floor) are being used to collect DNA samples the police are in effect saying “we’re not going to let you sit down unless you agree to our terms”. If the police had simply said “give us a DNA sample or we won’t let you sit down”, would that be allowed?
October 7, 2011, 1:35 pmpete the elder says:
If you are locked in a hot cell you are under arrest and they can get legally get your prints without a warrant already.
In this case and the previosuly mentioned cases where they get the fingerprints off the water glass the person was free to leave any time they wanted.
October 7, 2011, 1:44 pmSeaDrive says:
“May I have a paper towel, napkin, or Kleenex to hold the glass with?”
October 7, 2011, 1:46 pmAdam says:
Well, don’t forget the unverifiable “metallic odor.” ;)
The error is yours. Nothing about his conviction rests on the calculated probability that he is the source of the DNA. The court is not asking for or pretending to recipe the probability that he is guilty.
If they have grounds to hold you at length in a cell, they have grounds to force you to given them your fingerprints.
Not only could he decline to sit, he had every right to walk out at any time (whether he appreciated that is another question).
October 7, 2011, 1:48 pmAdam says:
Well, don’t forget the unverifiable “metallic odor.” ;)
The error is yours. Nothing about his conviction rests on the calculated probability that he is the source of the DNA. The court is not asking for or pretending to recipe the probability that he is guilty.
If they have grounds to hold you at length in a cell, they have grounds to force you to given them your fingerprints.
Not only could he decline to sit, he had every right to walk out at any time (whether he appreciated that is another question).
October 7, 2011, 1:57 pmOrenWithAnE says:
Orin already wrote that post by the way, talking about the 4A, probabilistic models, the number of times the police have inquired about potential PC and prior knowledge.
October 7, 2011, 2:27 pmHasdrubal says:
So it’s the sticking things in your mouth that violates the 4th? If they just rubbed a swab on your skin it would not be a search? If the latter is _not_ the case, why draw a distinction based on the tool used to collect the sample? Why would a swab on your arm violate your 4th Amendment right to be secure in your body but not the arm of a chair which does exactly the same thing?
Do they have the right to TAKE the can from you, or do they have the right to test the can once you have discarded it? If you put the can in your pocket once you finished, but they take it out of your pocket without your consent and lift your fingerprints, would that be admissible? A person certainly does not have the option to take everything they touched in a police station with them when they leave, so there is a difference in that.
Earlier in the thread someone mentioned that evidence from cans, glasses, etc was admissible because you don’t have a privacy interest in things you have chosen to discard. But you don’t choose discard your DNA simply because you have inadvertently touched something within a police station. Again, I don’t see the difference between taking a DNA sample by using a cotton swab or by using the arm of a chair.
October 7, 2011, 2:44 pmpete the elder says:
The whole point is that they don’t have the right to touch him at all in this case without a warrant. That is what “secure in your person” means in this context.
Swabbing your arm would violate your rights too, just as touching you and forcing you to give your fingerprints or forcing you to go the police station in the first place would.
Skin scales that have fallen off on their own are no longer part of your body so they are not touching you when they collect them.
October 7, 2011, 3:10 pmLaura(southernxyl) says:
So if you pick somebody who fits the description, lives in the area, previous lived in that very house and so knows the layout, etc., you are LESS likely to have the perp than if you test some random 80-year-old in Peoria?
Not feeling it.
October 7, 2011, 3:25 pmPrometheeFeu says:
@Adam:
I can see the intuition that leads one to that conclusion. That is why I started by asking what the purpose of the 4th Amendment is. I tend to think of the first amendment as being a legal protection that gets automatically layered on top of technical protections. So if I as much as use a string to keep my door from opening, nobody is allowed to open my door. That’s why I bring up the analogy with your odor or your image. There is nothing standing in the way between the police officer and your DNA sample. As such, your DNA sample is fair game and its analysis is unimportant.
October 7, 2011, 3:35 pmAdam says:
I hear you, but I’m still not sure there is nothing between police and your DNA. I don’t recall who (and the thread is too long to make going back to find it productive), but someone brought up the case of using infrared cameras to search for grow houses. There wasn’t anything between the police and the ambient heat of grow lamps, but that was still a search. Analyzing tissue in a way that requires advanced technology certainly seems analogous to me. Of course, the problem for me is that I’m not sure Kyllo was rightly decided either.
As others have mentioned, Prof. Kerr’s equilibrium theory may suggest that the two lines of cases will eventually converge and both infrared cameras and DNA testing will be fair game, but I’m not sure that’s the right result.
October 7, 2011, 3:51 pmJ. Patrick, in pro per says:
I’ll explain this later this evening (or maybe tomorrow), and address some of the ill-considered comments (and outright inanity, Adam) that others have made. I’ll do this in a way that will have even more intuitive resonance than my last explanation, which I thought would be fairly clear. I’ll do all this prior to…dun dun dunnnn…My Final Post at the Volokh Conspiracy.
First I want to give someone else a shot at explaining why the odds of falsely convicting someone *as under the circumstances of this case* go up, not down, when the suspect fits a circumstantial profile two years after the fact. Any takers? I think OrenWithAnE could do it.
I might get around to explaining the necessary correction for the number of tests conducted, which I would have thought would be SOP in a legal system that includes mathematically knowledgeable people such as Professor’s Kerr and Volokh. If anyone else wants to take a shot at *this,* let me refer you to google Alex Volokh’s article N-guilty men, an understanding of which is very helpful (but probably not necessary) in order to apply the necessary correction.
OrenWithAnE: Does Professor Kerr discuss how to correct for the number of tests in his work? Obviously, Professor Kerr could answer that as well.
October 7, 2011, 4:04 pmjcc says:
@ J Patrick -
I believe you misunderstand the actual results of the three separate DNA tests. Only one of the three – that performed by an independent lab as a check on the state police lab – used the number “99.57% of all males in a country the size of the U S”. The other results are not quantified in the decision. They may be more or less convincing. Next. although not addressed in the decision, all males of a certain age, of a certain ethnic group, and others with identifiable physical characteristics, speech patterns, and the like can be eliminated.
Then, as a matter of fact, we have absolutely no idea of what evidence was presented at trial. We only have those allegations that created the probable cause for arrest. The issue in the decision is whether the original chair swab should be suppressed, presumably leading to the exclusion of the following cheek swab, gutting the state’s case.
You have chosen to single out one test among three, and then ignore any other evidence presented at trial. I would only remind you that a jury of his peers heard a lot more evidence than any of us are privy to, and then convicted the defendant.
“I think it is fair to say that this entire prosecution rests on that 99.57% DNA match.”
No, that’s neither fair nor accurate. You’re cherry picking numbers and second guessing the judge and jury, while operating in ignorance of the case as presented. Even the defendant is not challenging the scientific validity of the DNA evidence. He just wants it all suppressed so no jury (in a retrial) can see it. That should tell us all something.
October 7, 2011, 4:16 pmDave N. says:
Hasdrubal,
In my hypothetical, the can was left behind. The Supreme Court has held that you have no objectively reasonable expectation of privacy over that which you have discarded.
If you crushed the can and put it in your pocket, they could not seize the can, though undoubtedly it would raise their suspicions. This raising of suspicions would not, however, be enough to take the can from or even be used as any part of probable cause for either arrest or a search warrant.
October 7, 2011, 4:22 pmCollection and Analysis of DNA Left on a Chair at the Police Station Not a Fourth Amendment Search, Court Holds - Democrats, Republicans, Libertarians, Conservatives, Liberals, Third Parties, Left-Wing, Right-Wing, Congress, President - City-Data Forum says:
[...] [...]
October 7, 2011, 4:35 pmKieth says:
Thank you laura. Why is dna so different from facial recognition? is a man (or woman) improperly identified if his face or arm or butt has a birthmark on it? why is identification by height, weight and hair color reasonable and just while that pesky saliva is off limits. Maybe we should make all voice recognition off-limits too.
October 7, 2011, 4:54 pmRemind ourselves; we are trying to discourage crime and punish offenders not create work for creative lawyers.
OrenWithAnE says:
There were the walls of a private residence. The fact that the police can use a particular technology to see through those walls does not give the right to do so.
He did and you would know that if you read the work. http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1797824
October 7, 2011, 5:21 pmJ. Patrick, in pro per says:
:)
***
I really do welcome any other thoughts/questions/challenges because this is really not healthy for me, and after enlightening those of a disposition to be enlightened I’m going to respectfully bow out of the VC with grateful thanks to the tremendous education I’ve received from Professors Kerr, Volokh, Bernstein, and the various commenters who have substantially expanded my insight into the law.
Oh, and Kieth, the difference between DNA and facial recognition is that DNA has some connection to reality. Whereas convictions based solely on facial recognition of unknown assailants is more often than not just an exercise in satisfying the urge of people to believe in justice done.
October 7, 2011, 6:04 pmPrometheeFeu says:
I read this differently. You have taken proactive steps in order to secure the privacy of the inside of your house. (Building walls, roofs, etc…) On the other hand, your DNA is just lying around. On the other hand, you have not taken such proactive steps to prevent your DNA from falling in the hands of someone else. You are walking around and it just fell off your body as you expect it to.
One thing that I am worried about is if the police cannot lift DNA from their interview room without a warrant, what about from the scene of the crime? It seems that the same arguments apply in both cases. It seems the case would be even stronger in the case of a crime scene since getting a warrant would most likely be very easy.
Finally, I am concerned about punishing undetectable activities. (“victimless crimes” so to speak) If I am in my own home, why should I not be able to run whatever analysis I desire on things I find there? What about on things that I find lying around and are obviously abandoned? If I can do so, why could police officers not do the same?
October 7, 2011, 6:52 pmKen Arromdee says:
The claim that the infrared cameras see inside the house is, technically, no more true than a similar claim about the DNA. The infrared cameras see infrared radiation that has come out of your house. At the moment they see the infrared, the infrared is no more in your house than the DNA is in your body at the moment it’s on the chair. It is true, of course, that the infrared rays were once in your house, and that they provide information about your house, but I could say something similar for DNA.
The infrared radiation is in fact as much abandoned property as the DNA is. One could make the same arguments about infrared cameras as about DNA: if you don’t want the police to analyze the infrared that leaves your house, make sure you don’t let any infrared leave.
When DNA is lifted from the scene of the crime, the police may know that the DNA belongs to the criminal, but they don’t know the DNA belongs to any particular suspect. It therefore is not a search of a suspect.
October 7, 2011, 7:46 pmOrenWithAnE says:
This is like the claim in Katz that a microphone attached to the outside of a phone booth does not hear what’s going on inside it, only what’s transmitted through the walls to the outside. Such a rigid and mechanical distinction has no place in the 4A.
Either that, or you are going to have to replace the entire jurisprudence, starting all the way back at Katz, with something new and different …
October 7, 2011, 9:17 pmkieth says:
J Patrick, facial and other recognition does have drawbacks (as does DNA) but it does have a connection to reality; it’s how we recognize friends and acquaintances, celebrities and politicians. It’s how most identification is accomplished (maybe that’s why no judge, at least so far, has ruled it to be invasive).
October 7, 2011, 11:19 pmKen Arromdee says:
Umm, my point is that *both* should be considered searches, not neither.
If seeing infrared that has left your house is a search, and hearing sound that has left your house is a search, why isn’t analyzing DNA that has left your body considered a search too?
Or why is it we can say “if you don’t like it, don’t abandon any DNA” but we don’t say “if you don’t like it, don’t abandon any sound waves” or “if you don’t like it, don’t abandon any infrared rays”? Surely *all* these cases try to make “rigid and mechanical distinctions”.
October 8, 2011, 12:36 amClark says:
It may be invasive, but its psychological persuasive power far outweighs its evidentiary value as many, many controlled experiments have demonstrated. I hope that our justice system absorbs this lesson soon.
October 8, 2011, 3:30 amClark says:
Sorry, I meant: It may be *less* invasive.
October 8, 2011, 3:49 amJ. Patrick, in pro per says:
Haven’t had time to prepare a response yet, but when I do it will be worth your wait (hopefully Sunday, maybe Monday). Every objection/criticism will be thoroughly addressed for your consideration.
I’ll see if I can’t get a quant psych professor friend (R1, full tenure) with unquestionable credentials to put his stamp on it for you.
Kieth, you may find this interesting.
OrenwithanE: This may sound unlikely, but I actually didn’t catch on until after the smiley face. Truly, I was just scanning comments until I found one from someone who seemed knowledgeable enough to save me the trouble of answering. And I asked about Professor Kerr’s work because, as I’ve said, I’m not a lawyer. The seeming disrespect was not intended. Thank you for providing the link, which I found helpful.
October 8, 2011, 8:38 amOrenWithAnE says:
Because the infared reveals private details about what’s going on inside your house whereas the DNA reveals nothing except a 26-digit number that’s unique to you.
J. Patrick, we are good. I’m also not a lawyer, hard sciences by trade. The question of to compute these things is very heavily dependent on a lot of details about the order things were done and, more opaquely, why things were done. If the officers interviewed 100 suspects and then chose to DNA test a dozen of them that aroused further suspicion that’s rather different than if they tested a dozen suspects and then interviewed them second. Priors are always a royal pain.
October 8, 2011, 10:15 amKen Arromdee says:
So something that would otherwise be a search is disqualified from being a search if it doesn’t find enough information?
And why isn’t the DNA considered as providing private details anyway? Sure, it just returns a number, but the number is used in ways which can violate privacy. After all, each time the police gets this number from an innocent person and uses it, the innocent person is exposed to a 1 in 200 chance of serious trouble. The innocent person may even be put in a database which greatly increases his chance of being caught by a false match in the future. How is this not an invasion of privacy?
Would it be okay to listen to someone’s house without a warrant as long as they used a special computerized system that only told the police things that sounded like social security numbers? Or only analyzed the voice to see if a particular person was present, or otherwise did something other than the full scope of what a wiretap could do?
October 8, 2011, 12:24 pmOrenWithAnE says:
If it cannot, even in principle, find any private information, then yes — it’s not a search. For instance, an officer can stand on the sidewalk and look in your windows. That’s not a search irrespective of what he sees.
This is circular. If the number isn’t private that it cannot be used in any way to violate privacy.
This is a serious misunderstanding of the relevant statistics.
Because the contents of the database aren’t private, nor is there a privacy interest in not being suspected of a crime by the police.
The question is not what is learned from the search but what the search reveals in terms of private information. If the search listens to all the conversations in order to filter out some non-private stuff, it has revealed (by construction) private information.
October 8, 2011, 1:30 pmKieth says:
Clark and Patrick; the use of facial recognition (apparently even by robotic cameras) is accepted as non invasive (I use that term because it’s compact, what I mean is that it complies with 4th Amendment limitations) and is acceptable as evidence because that technique was common at the time the 4th Amendment was adopted (1800?). It has been used for I’m sure thousands of years as a means of identification in legal proceedings. So it is untouchable, right? someone who looks at your face or notices your club foot can use those observations to identify you, either as a friend or a likely suspect. I am saying it is untouchable only because of its history; yes, it is somewhat unreliable (where strangers are concerned) so why not use the strong stuff? The genetic identification whose use lawyers seek to limit is no more nor less personal than one’s hair color or skin texture. The resistance it generates in the defendant’s bar is highly artificial and, not coincidentally, increases the value of the defendant’s lawyer. The evidence can be crucial in identifying a criminal or, as we now are seeing, exonerating a defendant. Making this vital tool into a defendant’s “gotcha” is a perverse and socially destructive exercise benefitting only the lawyers and the guilty.
October 8, 2011, 3:40 pmAdam says:
There are also walls around the cells of the “discarded” tissues ;)
You can do lots of things the policy can’t, or can’t do without a warrant. The 4th Amendment is no constraint on you, and finding that the police need a warrant before conducting a search of some sort would to nothing to criminalize analogous private behavior.
Not somewhat unreliable. Staggeringly unreliable.
October 10, 2011, 12:38 pmLaura(southernxyl) says:
Only if you are a plant. ;)
October 10, 2011, 2:51 pmJ. Patrick, in pro per says:
Just looking over this thread, I’m seeing things I wrote like:
that can be read in a few different ways, and with more distance from the conversation I can see that, from the perspective of commenters, the wrong interpretation will often seem to have been the right one. Not intended, and apologies to anyone inadvertently offended.
***
First thing, there seemed to be some confusion about the difference between DNA evidence and other kinds of statistically formulated evidence (e.g., blood test). Sometimes DNA is like other evidence, and sometimes its not. It depends on what the test is used to do. The problem arises when DNA testing is used to test the theory of a suspects guilt and an adjustment isn’t made for the number of tests conducted.
Here’s simple/unreal example for clarity: Say a White male, age 20 to 30, committed a rape, and police suspect the perpetrator lived in the area. So they canvass it, asking all the 20 to 30 year olds to provide a sample. Now they have 1000 samples, and when one pops positive we’re not surprised because, on average, that’s what the stats say will happen. Just the manifestation of chance. I.e., some shmoe just drew the short straw (in the long-run, somebody has to).
He has some obvious problems. He had motive, he fits the circumstantial profile, and a DNA test excludes a huge percentage of the population. His actual likliehood of guilt isn’t more than or less than for any other random 20 to 30 year old.
This has basically stolen this individuals presumption of innocence. Because, now the burden is on him to prove that he’s not guilty. The state has it’s case hand delivered by a fact pattern emanating from random chance.
So you see why someone who fits a circumstantial profile is more–not less–likely to be falsely convicted than someone who doesn’t fit that profile under certain circumstances? It’s because if you establish your set of possible suspects based on circumstantial factors, then repeatedly test elements of the set till you find a match, you are *assuming that the perpetrator is in the set*.
Of course, not all sets are created equal. And not all DNA test results are equal. But–and this is *very* important–every time the police conduct a DNA test we have full and incontrovertible evidence that the set size goes up by one.
Would the test, in combination with the circumstantial profile, establish enough evidence to convict were the test to come up positive? Then the test has a unique function in that it serves as the basis for decision.
Which isn’t always a problem. Some DNA test results have a very high degree of accuracy. So if you do three tests on three other people, then it might not matter much w/r/t suspects actual likelihood innocence. But you should still be accounted for, because to not account for it is to withhold evidence of innocence.
And scientists find themselves confronted with this exact issue all the time. Experimental results are often expressed in terms of the statistical likelihood that those results were obtained by random chance. E.g., there’s a 3% probability that the differences observed between the two conditions would have happened just by accident. For psychology, at least, this meets the acceptable level of random error (5% at most) established by many subfields. But, of course you can’t just run 20 tests and call the one result that is *expected* to fall below that 5% threshold meaningful. So, scientists perform the statistically necessary adjustment of dividing the threshold level by the number of tests conducted. So if you want to run 10 tests, of 10 theories, then that’s fine but *now* any of those results has to be 10 times less likely to have happened by accident in order for it to warrant endorsement.
This is where, I assume, an adjustment to the probability number expressed for the DNA test would be made via psychometric correspondence of some sort. But I’m still holding out hope that the legal system knows *all about* these issues and has already figured them out. At the *very least*, the jury would need to be given some sort of indication of how the number of tests conducted should factor into interpretation.
As for the problems with warrant-less DNA tests, the problem is obviously that as DNA tests get cheaper, police could, without a warrant, test suspect after suspect until the unlucky one draws the straw. This would undermine faith in the DNA test,which is highly credible when used right.
As for the case in question, you hopefully understand this well enough to be concerned now. If you look at the second part (not just the first), I believe you’ll see an indication that no other pertinent facts came out at trial. If I didn’t get to an objection you made, I apologize and invite you to repeat it (if you’re still interested) since I basically scanned the whole thread and just responded to my impression as a whole. I hope you’ll forgive the lack of the thorough and systematic response I mentioned, but this is 2 pages single spaced at the moment.
October 10, 2011, 6:12 pmJ. Patrick, in pro per says:
last post.
I’d intended to say a good bit to you on my way out. About our two systems of reasoning, and those expected occasions in which an unaware law-person might be inclined to miss forest for trees. About various repugnant and heretofore unrecognized injustices (unrelated to DNA), that are ever expanding under cover of statistical camouflage. About huge potential liability, billions, to which corporations have exposed themselves by not following through with some straightforward mathematical implications of their own data. About the math of facial recognition vis-a-vis psychology and physics. About convictions grounded in facts that break the rules of space and time (my favorite case is one where the jury secretly conducted it’s own little science fair project without telling anyone. On appeal: Upheld).
Eh, whatever. Maybe Rodney Balko can save us. I don’t have it in me to go on whistling in the dark here. I just carved out my own spot on the web. I can rant from there. Why am I not surprised that, this late in the game, the web address “PeopleAreNotStupid.com” was available. Heh.
Anyway, I’ll give you the statistical correction, then peace out.
Actually no, for sake of closure closure let me first relay a little story that seems more on-topic to me than anything else. It’s about statistical variance as it pertains to this thread, and as I type this I’m realizing that it might even give you a better understanding of *test* as it pertains to the use of DNA evidence.
I think for you to really get it, I have to start in kind of a strange place by noting that:
It’s hard to keep a quality girl when all you can offer is yourself. No job. Few family. Many friends, but the few who are local don’t help your case. No phone. Depleting resources.
To a certain extent, she has to take you on faith. But faith is vulnerable. It goes against everything women are hard-wired to look for in a partner (to the extent anyone is hardwired for anything at all). And random events, which are entirely predictable in the statistical but not specific, begin to erode that confidence. Because she doesn’t want to be a dummy like her friends, who are with guys and can’t see forests for trees.
Still, she holds on to the one thing she can see, which is your passion for writing a novel that can give voice to an otherwise invisible class of people (who can be *known* to exist, but not in the specific, as with statistics). And you’re making the book as funny as you can, because people are not naturally disposed to approach painful information about injustice suffered.
But then one day you aren’t writing as much. Days pass without progress. And this brings her faith to the breaking point. You once told her, in answer to a question, that the one thing separating you from other people is that you “show don’t tell.” And you are showing less and less. You consume (the Internet), but don’t produce. A bad situation.
But then one day you have something to show her. You tell her about the threads at Volokh Conspiracy in which you are trumping law types on questions of law. The first, a matter of debate, but the second, a matter of math. Math they aren’t quite getting.
And you tell her with pride how, after skepticism that you would have anything to say, it was acknowledged that you were right, that you did have something to offer. You weren’t trying to offer something to “The Law,” since many people much smarter than you make it their business to consider these things. You just wanted to illuminate the issue for people in the thread, and show that the attorneys of this particular appeal apparently failed to make the most obvious and logical due process objection available for their client.
Then more responses came in, and they disturbed you. Because the need for the statistical correction seemed obvious. But “The Law” appeared to be unaware.
And this left you greatly confused, because very intelligent and very knowledgeable people in the legal community appeared to have no idea of how misleading certain DNA statistics would become under certain circumstances.
And you said you would tell them more, that you would enlighten those of a disposition to be enlightened. And she became very concerned about you telling lawyers their business. You spent days deep in thought, driven on by the remote possibility that this was bigger than you thought. You promised to have your explanation posted by Sunday or Monday, and at Sunday night at 1AM everything clicked, and you began writing.
You wrote 15 single-spaced pages developing an understanding of the issue from the ground-up. You defined and illustrated THEORY, and the difference between a theory of guilt and a theory of innocence. You defined TEST, and explained why seeing “test” in the phrase DNA TEST could be very misleading. You gave examples, because a clear understanding of ‘test’ made a clear understanding of everything else so much easier.
You wrote for hours and hours, and your girlfriend became very concerned. She expressed tremendous fear that you were becoming obsessed. You said “Babe, I’ve never asked you before, but I’m asking you now to please trust me. Let me post this, and just see the response. I think this could be big.” She did not say yes or no.
Instead of posting your long document, you started a new one that contained just the essential elements. Because 2 pages is long enough for a comment. You were semi-delirious from lack of sleep when you did this, but in retrospect you judged that it came out none too bad. A few typos notwithstanding, it seemed to offer clarity.
And you waited for a response, but none came. So much interest prior, then nothing. Was it meaningless? Brilliant? Original? Well known already? Highly misguided? Ignorant? You had no idea. This was why you solicited the committed engagement of those who wanted to smack you down earlier, because to be smacked down on such a thing is to learn, and knowledge is wonderful. And to be right is wonderful, too, because knowledge informs justice. But you found the silence that followed your writing to be deafening. You hope that someone takes what you wrote, and puts their name on your thoughts, fills in citations to the work of important people. Because, in a civilized society, justice trumps all.
And then today Julie Anne said she’s lost respect for you, that you appear to be avoiding the one thing she had confidence in. She’s seen no value to your efforts, which seem, to her, like so much wasted time. You have failed the test you set up for yourself. What was the probability of passing? You think now it must have been 0.
But you still want people to know the truth about the necessary adjustment to the DNA statistic, so without double-checking your math you append the following, written earlier, to your final post at the VC:
***
Assuming 99.5% accuracy of the DNA test, and that multiple tests are conducted on multiple *suspects* before one hits, the following data set corresponds to the *only number the jury should hear* because it is the *only number that is relevant to their task of evaluating the theory of defendant’s guilt*. Any other number is highly misleading.
test # : jury hears:
2nd : 99%
5th : 97.5%
10th : 95%
20th : 90%
100th : 50%
200th : 0%
PS In the interest of full dissclosure, apologies to Brian Leiter. I had my reasons. They weren’t good.
October 12, 2011, 2:41 pm