Disquiet: search without warrant?

[marsden_online]

On the one hand it's good that the police have solved a 9 year old murder. But the Herald article includes this snippet about their methods.

The new technology enabled police to run a familial DNA search which isolated two relatives of Jarden and revived interest in a man who had previously been regarded as a suspect.

Detectives began tailing Jarden again, and picked up a cigarette butt he discarded on the street.

The DNA from his saliva closely matched the evidential sample, and a voluntary sample which he gave confirmed the match.

I don't have a problem with using familial DNA matches to narrow or expand a list of suspects. I do have a problem with the method used to collect the second DNA sample (the cigarette butt). Seems awfully like search-without-a-warrant to me.

Even if they did get some form of formal authority, it's still "we can acquire and test your DNA without your consent or knowledge on suspicion only".

Also another really good reason not to smoke.

Comments

[pepperbeast.livejournal.com]

I believe the prevailing legal opinion is that you can't both throw something away and claim that it's "yours".

[marsden-online.livejournal.com]

I don't think you can get away with saying 'the DNA wasn't mine guv, I threw it away'.

It's not a question of ownership. There are laws specifying when the police may require you to submit a DNA sample. They were recently expanded to, as the article notes, after a person is convicted of offences such as theft, rape and arson. This seems like an end-run around those laws.

When the laws were expanded the civil libertarians kicked up a stink about the possibility of having your DNA added to the national database for minor crimes like shoplifting - which you'll note is exactly what the police used to force Jarden to submit a DNA sample that they could use as evidence.

For a more visceral understanding, compare it to the police entering your house and going through your computer without your knowledge (which they can also do on suspicion that you have illegal material. How many people do you know that they couldn't claim suspicion of that under copyright laws?).

[pepperbeast.livejournal.com]

I don't think you can get away with saying 'the DNA wasn't mine guv, I threw it away'.

No, you're missing my point. There are restrictions on police going through my house or my computer without because those things are actually *mine*. If you throw something away, *you don't own it*. You can't claim that you're being subjected to an unreasonable search when someone does some analysis on something *that isn't yours* and that they found in a public place.

As for DNA samples being *required*-- I'm not sure I'm 100% comfortable with it, but on the other hand, I suspect that from a police standpoint, it's not that much different from their existing fingerprints database. (And in the case of fingerprints, they take them from *everyone* they arrest, for any reason.)

[marsden-online.livejournal.com]

And I'm sure they'd love to take DNA from *everyone* they arrest, for any reason as well. Would you be comfortable with that?

There are (supposed to be) even more restrictions on when the police can normally take a DNA sample than on when they can search your house. DNA isn't property. It is us, as near as we can currently get scientifically. It isn't something you can buy or sell or give away (although the debate over whether you can licence part of your genome is starting to warm up).

Look, normally they are only allowed to take DNA from a specific person when they are convicted of theft, rape and arson. Do they normally take DNA from anyone convicted of shoplifting? Because if not they took DNA on suspicion of rape using the minor theft as a convenient excuse.

Moreover, they analysed the DNA of a specific person on the cigarette without even that excuse. I believe that the fact they had to wait and resort to the other tactic shows that evidence would not have stood up in court as being legally acquired.

~~~
Sure they got the conviction (and frankly I'm highly suspicious of sudden guilty pleas), but that's dangerously close to a 'means justify the ends' argument. And there are also parallels to the getting Capone on Tax Evasion scenario, which also involved a lot of law-bending or breaking or re-writing on the part of the authorities before they eventually pulled him up on something completely unrelated to what they wanted him for.