Fourth Amendment and DNA

This page may actually evolve in time, but it is intended to capture a Facebook exchange with an old friend.  Most times, our opinions run concurrent to one another (though admittedly his is usually better educated than mine, which reduces me to the “yeah, I agree” level of argument).  However, on this occasion, we have diverged a bit and, oddly enough, it is on a topic about which I do have a little knowledge and experience, though I’m not familiar with the actual facts and arguments associated with Maryland v. King.  This is about the definition of an arrest under the fourth amendment and dna evidence.  If you dare, read on:

Rob:  The thing that scares me most about the decision in Maryland v. King is:

What happens when the police arrest someone JUST to get a DNA sample that they can use to prove guilt in a case that they haven’t been able to solve otherwise?

Me:  Grounds for a lawful arrest won’t change with this decision. The courts have ruled that an officer’s motivation doesn’t matter as long as the stop is legitimate and within the officers’ lawful authority (a case where narcotics officers made a traffic stop after observing a violation — even though they were in a narc-ark, enforcing traffic law was still within their legitimate authority). So, if an officer makes a lawful arrest for an offense based on probable cause, and the subsequent recovery of DNA evidence proves that that offender is also guilty of another (maybe far more serious) crime, does that constitute a violation of that offender’s civil rights? I don’t think so. My point is that you can’t just arrest someone because you feel like it. You have to have probable cause to believe that the person is committing, has committed, or is about to commit a crime. Like any other aspect of law enforcement — or the exercise of power by the government on any level — the power to arrest can be abused and sometimes is. But this decision isn’t going to change that.

Likewise, a lot of my best arrests resulted from stops for other, lesser offenses. A stop for speeding often turned into arrests for DUI, drug offenses, weapons offenses, outstanding warrants, fugitive from justice arrests, etc Yet the original stop was just for speeding. A legitimate stop from which further evidence led to additional, more serious charges.

Rob:  I happen to live in one of the most “overpoliced” communities in the U.S., Jack. The revenue generated by 40,000 college students means (among other things) that Columbia has a police department as large as many in cities almost twice its size. According to a recent story in the local paper, less than half of the arrests made by the city police result in any charges being filed. Many, in fact, seem to be “fishing trips” directed at individuals the police suspect of being involved in local gangs or in the booming meth trade here in central Missouri.

I simply feel that information gathered from an arrest that does not result in prosecution should be destroyed. That includes DNA.

Me:  I think your paper is making a mistake with regard to terminology. For a citizen-police encounter to be qualified as an “arrest,” charges have to be filed. A criminal charge or charges is a required element for an arrest – a “seizure” of the body as defined by the Fourth Amendment. According to the 4th, for the seizure to be deemed reasonable, it must be based upon a warrant, which is, in turn, based upon probable cause. Probable cause is a degree of certainty in which a reasonable person has observed, with one or more of his or her five senses, facts and/or circumstances which lead him or her to believe a crime is being committed, has been committed, or is about to be committed. In other words, in the United States of America, one cannot be “arrested” by the police without being charged with a crime. Many arrests, of course, are made without a warrant – appropriately termed “warrantless arrests” – but the minimum degree of certainty required for a warrantless arrest is still probable cause. A brief digression may be in order here: the legal “degrees of certainty” are, from least to greatest: mere hunch, reasonable suspicion, probable cause, preponderance of evidence (used in civil actions), and beyond a reasonable doubt. Each, with the possible exception of mere hunch, has its own exhaustive set of definitions and related precedents that further refine them. With regard to a warrantless arrest, the arresting officer must, upon taking the person into custody, swear out a warrant within a reasonable period of time. As a patrol officer, that meant “next thing” to me. But I think that under some circumstances that period of time can be as much as 72 hours. I’m not sure. That is a situation in which I think your concerns would be valid. If a person is detained (and again, it is still a detention until charges are filed) for that length of time with no charges ultimately being filed, and DNA or similar evidence is collected during that period – it shouldn’t be before charges are filed, emphasis on “shouldn’t” – but if it is, it should be destroyed. 

To “unarrest” someone is to admit a violation of that person’s civil rights – specifically, a violation of their Fourth Amendment rights, at the least. So it is an action that is probably uniformly against department policy nationwide. Officers are trained and retrained annually to be able to accurately recognize and document probable cause, particularly in light of the evolving legal landscape, because they have to get at least that much right every time. Your paper is probably making a common misinterpretation of police-citizen encounters and their outcomes. The source for confusion is the legal difference between “arrest” and “detention.” The courts have consistently defended the police authority to briefly detain someone for investigative purposes. The basis for detention is “reasonable suspicion” rather than probable cause. Reasonable suspicion is a set of articulable facts and/or circumstances that would lead a reasonable person to believe that a person might be engaged in prescribed activity. In other words, it isn’t enough to say, “The guy looked suspicious to me.” You have to be able to articulate specific reasons why he looked suspicious. Admittedly, the courts are pretty lenient with regard to this standard, but it is there and can bite an officer in the ass at trial if he or she isn’t careful. The obvious loophole is what constitutes a “brief detention?” And the answer varies from jurisdiction to jurisdiction (The rule of thumb we went by was no more than 45 minutes for a street stop. Under other circumstances, like I said, it could be as much as two or three days. But in cases like that, the prosecuting attorney and department hierarchy are sure to be involved, both to protect the citizen’s rights and to cover their collective asses.). A detention falls short of an arrest in the legal sense, but exists as a compromise between the citizen’s Fourth Amendment right to freedom of movement and the government’s obligation to detect and respond to criminal activity or otherwise act in the public interest. A detention may, under limited circumstances, include the suspect being physically restrained (aka handcuffed) briefly, in the interest of safety. But detention still falls short of being an arrest in the legal and constitutional sense. And thus, would not subject those citizens to widespread violation of their constitutional rights to be secure in their respective persons from unreasonable search and seizure.

If your community is placing people in custody, advising them that they are under arrest, and then releasing them without charges being filed, my advice would be to contact the ACLU. If it is true that “less than half of the arrests made” result in charges being filed, then there is a lot of work for them to do. But I suspect, like I said, that your newspaper is making a mistake with regard to some admittedly slippery terminology. 

I still think, once we have established that the offender has been placed in custody for a legitimate criminal charge (even if that charge is ultimately defeated or even dismissed at trial), the collection of DNA evidence is constitutional. After all, we collect photographs and fingerprints, either or both of which can be used to link that offender to other crimes. I didn’t really follow the case, so I may be simply repeating the original justification behind the collection of DNA from offenders. But it still strikes me as constitutional.

I sure would have loved to have been able to work in a jurisdiction that was “overpoliced.” Most days, we were lucky just to have all the folks working who were scheduled to work, and that usually wasn’t enough to cover the call volume. It was always a special kind of fun to have to handle a domestic dispute or a bank robbery alarm single-handed because everyone else was tied up on other calls. I remember my stock response to every single person who declared (usually with a little spittle for emphasis), “I know my rights!” to me. “Yeah, pal. So do I.”


Part of the discussion diverged here between me and one of Rob’s friends, who is from Great Britain, lives here, and loves to make snarky comments about how the US is screwed up.  Hate to say, but he scored some points on me. But what the heck, we all know that parts of the system are screwed up.

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