0:00

Will. Your argument next this morning

0:02

encased weapon is twelve Two

0:04

o' seven. Maryland. vs.

0:07

Chain. Hey.

0:11

Everyone this is Leon from Prologue

0:13

Projects on this episode of five

0:16

to for the hosts are discussing

0:18

Maryland became in this twenty thirty

0:20

in case a man was arrested

0:22

for one crime is Dna was

0:24

collected and then it led to

0:26

a match for another crime and

0:28

his petition to the court. The

0:30

man argue that running his Dna

0:32

with an unconstitutional infringement of the

0:34

Fourth amendment bride mission it's unreasonable

0:37

searches. The court was unconvinced. the

0:39

just says warm. It's okay to

0:41

take. The. Dna of people arrested or

0:43

not yet convicted of a crime and

0:45

five for narrow decision. Supreme court ruled

0:48

the taking of an arresting his Dna

0:50

does not constitute an unreasonable search. The

0:52

argument from the court was the collecting

0:54

Dna is part of the process of

0:57

identifying and or sd even when that

0:59

person has already been identified. This is

1:01

five to four podcast about how much

1:04

the Supreme court songs. Welcome.

1:10

To five to four where we dissect

1:12

and analyze the Supreme Court cases that

1:15

have cancelled our civil liberties like a

1:17

cowardly university canceling commencement. I

1:19

am Peter and I'm here with

1:21

Michael. everybody. React. In.

1:24

Model. Too busy. Freeing.

1:26

Palestine to be with us today. Actually

1:28

I think she's just sleepy but that's

1:30

part of the work. the I got

1:33

a to recharge the battery. it's hear

1:35

her own aids to do your job

1:37

with your best friends. If

1:40

when you can just be napping I cut that

1:42

rage but then send it to read this pathetic

1:45

that. Are

1:47

today's case Maryland

1:49

The King. This.

1:52

Is a case from Twenty Thirteen

1:54

about the Fourth Amendment. He fourth

1:56

Amendment, of course, protects against unreasonable

1:58

searches and seizures. Usually,

2:01

these cases involve police

2:03

searching someone's house or

2:05

car or patting

2:07

you down or something, but

2:09

this case involves the seizure

2:11

of your DNA, specifically

2:14

through a cheek swab. Maryland

2:17

has a law allowing for police

2:19

to collect DNA samples from anyone

2:21

arrested for a violent crime. Alonzo

2:24

King was arrested for assault after

2:27

being identified by a witness, had

2:29

his cheek swabbed, and then the

2:31

DNA was used to incriminate him in

2:34

a case from a few years prior.

2:37

He tried to suppress the use

2:39

of the DNA evidence under the

2:41

Fourth Amendment, saying that the cheek

2:43

swab was unconstitutional because it was

2:45

essentially a search conducted with no

2:47

suspicion. But the Supreme

2:49

Court, in a five to four

2:52

decision written by Anthony Kennedy, says

2:54

no. It's fine. All good.

2:56

It's actually okay. Michael,

2:58

you're a background guy for the day.

3:01

Yeah, that's right. No re-annin.

3:03

I'm going to keep it brief because actually

3:06

it's pretty straightforward. There's not a lot to

3:08

understand here. So in

3:10

2008, as Peter said, Maryland passes

3:13

a law allowing for

3:15

the collection of DNA samples from

3:17

arrestees of certain crimes

3:20

of violence or burglary.

3:22

This is one of many laws around

3:24

the country allowing for such DNA collection,

3:27

and it's actually one of the more

3:29

stringent ones. The majority of

3:31

states do not require it to be

3:33

a crime of violence, for

3:35

example. In

3:37

2009, Alonzo King was arrested

3:40

on suspicion of pointing a shotgun

3:42

at a group of people. Illegal.

3:45

That is menacing, innocent

3:47

bystanders. One of the

3:49

people standing in the group IDed King

3:51

as the assailant, and he was charged

3:53

with first and second degree assault at

3:56

the time of his arrest pursuant to

3:58

the new Maryland law. In addition

4:00

to his fingerprints and his photograph being taken,

4:02

law enforcement took a cheek

4:05

swab for DNA analysis.

4:08

As per the law requirements, they helped

4:10

the sample until King was arraigned three

4:12

days later. After

4:14

that, it made its way to the state

4:16

police forensic science division two

4:18

weeks later and

4:21

was mailed to a private lab for

4:23

testing two months after that. After

4:25

two months after that, four months after

4:28

arrest, his DNA sample was

4:30

sent to the FBI to

4:32

be run in their CODIS database,

4:35

where it was compared to DNA

4:37

samples taken from unsolved crimes. In

4:40

the meantime, King pled down to

4:42

the second degree assault, not the first

4:44

degree. He entered an Alford

4:46

plea, which doesn't require an admission

4:48

of guilt. But

4:50

the FBI got a hint on his

4:52

sample from an unsolved rape from

4:55

2003, which led to King's prosecution

4:59

and conviction for that rape.

5:01

He challenged the collection and testing of the

5:03

DNA sample as an unreasonable search. Under

5:06

the Fourth Amendment, it made its

5:08

way through the Maryland courts until we

5:10

arrived here at the Supreme Court. Also,

5:13

I wanted to add a little warning. This

5:16

case is sort of tangentially related to

5:19

sexual violence, and we are going to

5:21

talk a little bit about that in

5:23

our discussion section, because obviously that's a

5:25

serious thing in solving

5:27

those crimes, is a

5:29

societal good that we don't take

5:32

lightly. But that doesn't

5:34

change the fact that this is a crap opinion. So

5:36

let's talk about the law a little bit here. The

5:39

Fourth Amendment protects against unreasonable

5:41

searches and seizures, and

5:44

King's claim here is very simple.

5:47

He says, all right, you arrest me on an

5:49

assault charge. You take my DNA.

5:52

Then you run that DNA against

5:54

a database of unsolved crimes. But

5:57

you didn't have any reason to believe that I was

5:59

a criminal. was guilty of any of those

6:01

crimes. So this is

6:03

what we call in the biz

6:06

a suspicionless search, which should be

6:08

unconstitutional. Anthony Kennedy

6:11

writes the majority here. And

6:13

what he says is basically, look, the

6:16

Fourth Amendment isn't about suspicion. It doesn't

6:18

matter that there wasn't any suspicion. The

6:21

Fourth Amendment is about reasonableness. And

6:24

that means you weigh the need

6:26

of the government against the invasion

6:28

of privacy. It's a

6:31

balancing test. So he

6:33

starts to do the balancing test

6:35

analysis. He says, on one hand,

6:37

the government needs quote, a

6:40

safe and accurate way to process

6:42

and identify the persons and possessions

6:45

they must take into custody. He

6:48

points out that police need to

6:50

know the criminal history and potential

6:52

dangerousness of the RSD that helps

6:54

with bail determinations, and so

6:56

forth. He compares it to photographing

7:00

and fingerprinting an arrested suspect,

7:03

and like other searches that police

7:05

conduct when someone is first arrested.

7:07

Now, before we go on, it's

7:10

very important to understand what he's doing here. Everyone

7:13

on the court knows that it's

7:15

generally illegal to search someone

7:18

for evidence of a crime without

7:20

any suspicion that they committed the

7:22

crime. So what Kennedy is

7:24

trying to do is say, well,

7:26

the DNA search is

7:28

not searching for evidence of a

7:30

crime. It's just trying to identify

7:33

the person that they've

7:35

arrested. Now, there are a couple

7:37

things here that just don't really make much sense.

7:40

First, I don't think

7:42

that this fits the definition of

7:44

identifying a person, right? Not at

7:46

all. Back to that little

7:48

timeline I gave you where they didn't even

7:51

send the sample to their forensics lab

7:53

until after he was arraigned. So what,

7:56

they're arraigning a guy they haven't identified

7:58

yet? It's nonsense. He's

8:00

saying that you get the DNA

8:02

test back and then you know if they've committed

8:05

another crime and then you know

8:07

more information about them and that's part

8:09

of identifying them. But that's

8:11

not what identifying means. No,

8:14

not at all. You

8:16

already have their name and address.

8:18

You have their fingerprints, right? All

8:20

of that comes through the usual

8:22

processing. The DNA test is

8:24

not about identifying them. You already know

8:26

their identity. It's about trying

8:28

to connect them to some random

8:30

unsolved crimes that you have no

8:32

reason to suspect that they committed.

8:34

So Kennedy says it's helpful for

8:36

bail determinations and assessing

8:39

dangerousness, but that's just not

8:41

what Maryland is doing. Like

8:44

you pointed out, they don't even send

8:46

the sample off until the arraignment, which

8:48

is like your initial hearing. Where you

8:50

get bail. For

8:52

the listeners, like remember under

8:54

Maryland law, they can't even

8:56

release the sample to like

8:58

state forensics until the

9:00

hearing where bail is set. So

9:04

Kennedy saying this will be helpful for

9:06

bail determinations makes no

9:08

sense unless he thinks

9:10

this works like snapping your

9:12

fingers. It's physically impossible. Yeah, it's impossible. It

9:14

takes weeks to run DNA. It's

9:17

nonsense. Even if it took hours, it

9:19

would be physically impossible. Right. It

9:21

would have to be instantaneous. It would have to

9:23

be like they're doing it at the bail hearing

9:26

and they like release it and it's like, boom, we

9:28

got it. It's

9:31

so stupid. And then on top

9:33

of that, in this case, it took four

9:35

months before the sample came

9:37

back with a DNA match. So

9:39

it's not being used for any of this

9:42

shit. It's being used for one purpose and

9:44

that's to implicitly accuse the

9:46

suspect of totally unrelated

9:48

crimes. It has nothing

9:51

to do with identifying someone. And

9:53

moreover, as the dissent points out, Maryland

9:56

actually gives the reason that they

9:58

conduct DNA testing. testing in

10:00

the law itself. And

10:03

they specifically say that it's for

10:05

investigating crimes. So Anthony

10:08

Kennedy just ignores that and then like

10:10

makes up his own reason in

10:13

order to make this law constitutional,

10:15

right? Also, the comparison

10:18

to mug shots and fingerprinting.

10:21

I don't know what the fuck he's talking

10:23

about. Like only some fucking like 90 year

10:25

old dipshit could look at DNA testing and

10:27

be like, oh, it's sort of like taking

10:30

a picture when you think about it. Yeah,

10:32

it's taking a picture of your biology. Kennedy

10:38

is like, okay, well, we already compare

10:40

mug shots to sketch artist depictions and

10:42

we show mug shots to witnesses, right?

10:44

Which is true. The difference

10:47

is that those are being used to

10:50

investigate the crime that the person

10:52

has been arrested for. That's

10:54

right. It's not

10:56

the same thing as running those

10:58

photographs through like a database of

11:00

like closed camera television or whatever

11:02

the fuck. Same thing

11:04

with fingerprinting. When cops hit your fingerprint, they

11:07

use it to check that you are who

11:09

you say you are. They don't run

11:11

it against a database of unidentified fingerprints

11:13

from crime scenes. Or at least they

11:15

didn't until this case. I don't know

11:17

if cops are doing that now. So

11:20

Kennedy is saying, well, DNA

11:23

testing, it's useful to police

11:25

for all of these reasons, but

11:27

we still need to weigh it against

11:29

the intrusion into the person's privacy. And

11:32

he says that this is pretty minimal. It's

11:34

a cheek swab. So it's not nothing but

11:37

minor intrusion, I suppose.

11:39

He also points out that people who are arrested

11:42

under the law and past precedent have

11:44

a diminished expectation of privacy generally, right?

11:47

Which is why like when you get

11:49

arrested, you can expect to get patted

11:51

down. They're going to search your pockets,

11:54

all that stuff. You have a diminished

11:56

expectation of privacy. So Kennedy

11:58

then weighs these things each other, right?

12:00

So, hmm, which one's bigger? On

12:03

one hand, the police have this need for

12:05

the DNA. On the

12:07

other hand, the test is not very intrusive.

12:09

So this is fine.

12:11

This is constitutional. We're good. So

12:14

like, overall, I

12:17

think the majority here is

12:19

getting away with a pretty aggressive sleight

12:21

of hand, if you can even call

12:23

it that. Like the Fourth

12:26

Amendment generally means that the cops

12:28

cannot conduct a search without suspicion

12:30

of a crime. The

12:32

majority gets around that by basically saying,

12:35

well, that's not what's happening here. But

12:38

that is what's happening here.

12:40

Absolutely. Everyone knows it. Maryland

12:42

law explicitly says it, but

12:45

I guess five members of the court wish

12:47

it wasn't true. So here we are. Yeah.

12:49

And that's it. Yeah. Five members of the

12:51

court are just like, well, this is good

12:53

for policing. We like policing.

12:56

Right. And so we have

12:58

to retroactively find a

13:00

way to make this constitutional.

13:03

That's it. Right. So the

13:05

dissent is authored by

13:07

Antonin Scalia. He's joined

13:09

by three liberals, Hagen

13:11

Sotomayor and Ginsburg. RBG.

13:13

Yeah. The ladies. You know, this is a

13:17

bad case that went the other way

13:19

because our old friend, Steven Breyer, joined

13:22

the majority state capacity liberal, Steven

13:24

Breyer, Law and Order Lib, Steven

13:26

Breyer, loves himself to police.

13:29

Fucking dolt. That's fucking-

13:31

And like, just so people know, Antonin

13:33

Scalia has a libertarian streak

13:36

in the Fourth Amendment context. This is

13:39

one of the main ways in which

13:41

he distinguishes himself from Clarence Thomas, for

13:43

example, who's just a police state fascist.

13:45

Right. Scalia is the type of guy

13:48

who has always felt that this sort of thing is

13:51

a little bit unseemly. And so you'll see him

13:53

joining the Libs from time to time on these

13:55

cases, which would have been more

13:58

impactful if it weren't for Breyer. consistently

14:01

switching sides. Yep.

14:03

Yep. Absolutely. So

14:05

the dissent is pretty good because

14:08

Scalia is usually pretty good when

14:10

everybody else he's writing with are

14:13

libs because one, that usually means he's right

14:15

on the merits and two, I

14:18

think they sort of trim his sails and rein

14:20

in a lot of his worst impulses. And

14:23

he does a pretty good job of

14:25

just dissecting the majority opinion and like

14:28

really taking apart, especially I

14:31

think the idea that this

14:33

is important for identification. He's

14:35

like meticulously goes through

14:38

the timeline of the DNA sample, like

14:42

transmission and working through bureaucracy and

14:45

testing and all that to illustrate how

14:47

absurd to think that this is being

14:49

used for identification. The guy's already like

14:51

been arraigned, agreed to please, like demanded

14:54

to jury, like all sorts of stuff

14:56

is happening while the DNA

14:58

is being tested. It's clearly not being

15:00

used for identification purposes because proceedings are

15:02

going forward. Criminal proceedings are happening. And

15:05

he also makes the point that like

15:07

the databases that these go into have

15:09

names and

15:11

like social security numbers and stuff attached

15:14

to them. Right. Like the key feature

15:16

is that the sample is to someone

15:18

who's been identified and then

15:21

you're comparing it to unidentified samples.

15:23

Right. Like that's right. That's

15:26

what's going on here. Like this is an

15:29

identification in any reasonable sense. But I

15:31

guess what Kennedy is trying to say,

15:34

everything identification. Yeah, right. Part

15:37

of identification is just learning more about

15:39

this person. The

15:42

thing about that is as they say,

15:44

it proves too much, right? Like you

15:46

could also learn more about someone by

15:48

just searching their house and going through

15:50

all their shit and opening their email

15:52

and reading all their old email. Like,

15:54

yeah, you'd learn more about them and you

15:56

might get a better idea of how dangerous they

15:58

are, but that shit requires. the Warrens. It

16:01

requires probable cause and suspicion.

16:03

Scalia's very good on these

16:05

points. He

16:08

even has handy little charts.

16:10

It's a descent with charts, comparing

16:13

DNA samples to fingerprints to illustrate

16:16

how different the two are. There was a

16:18

quote at the end, there's a little paragraph

16:20

at the end that I thought is worth

16:22

reading. He says, today's judgment

16:25

will, to be sure, have the

16:27

beneficial effect of solving more crimes. Then

16:30

again, so would the taking of DNA samples

16:32

from anyone who flies on an airplane. Surely

16:35

the TSA needs to know the quote

16:37

unquote identity of the flying public, applies

16:40

for a driver's license or attends a public

16:42

school. Perhaps the construction

16:44

of such a genetic panopticon is wise, but

16:46

I doubt that the proud men who wrote

16:49

the charter of our liberties would have been

16:51

so eager to open their mouths for royal

16:53

inspection. It's pretty good. He

16:55

grounds it all also in historical,

16:57

like the founders really didn't

16:59

like general warrants. That stuff's

17:01

correct. The idea

17:03

of just running someone DNA in

17:05

a database against every DNA sample

17:08

from any unsolved crime around the

17:10

country definitely feels like a general

17:12

warrant. That feels appropriate, but I

17:14

just don't care too much. Yeah,

17:16

me neither. Although, so people know a general

17:18

warrant was basically this

17:20

old timey concept where rather

17:23

than a specific warrant where you need to

17:25

be like, judge, I

17:28

want a warrant to go into that

17:30

house to investigate this crime. You could

17:32

get a more general warrant. Right. Judge,

17:34

I want the authority to investigate this

17:36

crime or that crime, and then you

17:38

could just do whatever with that warrant,

17:41

right? Right. That's sort of why

17:43

the Fourth Amendment is written the way it is,

17:45

where there is a classified

17:47

warrant requirement that requires problem

17:50

cause and all that

17:52

stuff, because they were concerned about these

17:54

specific types of warrants and this specific

17:57

type of policing. Right. I

18:00

I also want to point

18:02

out when this oral argument started,

18:05

the Maryland lawyers thought it would be

18:07

a smart idea to start off by

18:09

talking about how effective this has been,

18:11

this practice, and how many

18:13

crimes they have solved using this practice.

18:16

And he was immediately cut off by Scalia,

18:18

who was like, well yeah, if you conducted

18:21

a ton of unreasonable searches and seizures, I

18:23

bet your clearance rates would go up. Yeah,

18:26

yeah. So just right

18:28

off the bat, just owned at oral

18:30

argument with the most obvious sort of

18:33

logic, which by the way, hasn't stopped

18:35

people from making these arguments, like well, this is

18:37

a great way to solve crime, it's like no

18:40

shit. Yeah, exactly. No

18:42

shit, like no one doubts that violating

18:44

people's rights is an effective way to

18:46

solve certain crimes in certain regards. The

18:49

point is that we have those rights

18:51

anyway, right? The point is that the

18:53

violation of those rights is itself not

18:55

legal. Right. We don't

18:57

wanna be dismissive of the severity

19:00

of the crime alleged here, right? This

19:03

is a sexual assault case, this is a serious

19:05

case. I think like

19:07

the broad point is

19:09

that if you allow

19:11

the government to just conduct

19:14

unlimited searches without warrants of

19:16

your person, of your property,

19:18

et cetera, they will from

19:20

time to time turn

19:22

up a heinous crime, right? That

19:25

does not justify the vast intrusion upon

19:27

our civil liberties, and if it did,

19:30

there would be no Fourth Amendment. You would

19:32

not have civil liberties. It would give the

19:34

police license to do whatever the fuck they

19:37

want because sometimes they find a horrible crime.

19:39

Right, and this sort

19:41

of DNA testing is particularly useful

19:44

for sexual assault and

19:46

murders as well, but I think

19:48

that's where it's sort of in

19:50

the public consciousness understood as a

19:53

particularly socially valuable thing. And

19:55

so I just wanna note, like, the

19:58

cops suck at solving crimes. Right?

20:00

Like the data is very clear on this. And

20:03

if you've ever interacted with them, they often

20:05

do not seem to care about solving crimes.

20:08

And if there's one crime they

20:11

don't take seriously at all, writ

20:13

large, it's sexual violence.

20:15

Right. This is

20:17

a policy solution that's downstream of

20:20

the bigger problem. Right? The

20:22

bigger problem is cops not taking, solving

20:25

crimes seriously and not taking sexual

20:27

violence seriously. Right. They're

20:29

wanting to just violate everybody's civil

20:32

rights to make their job easier. Oh, hey,

20:34

well, we can just leave these rape kits

20:36

on the shelf and not worry

20:38

about them. And maybe in a few years we'll get a

20:40

hit. And we get the clear case. Right.

20:43

It's not good for anyone, this

20:45

approach. Right. I mean,

20:47

if you want cops to solve sexual

20:49

assault cases, the

20:51

solution is not random DNA tests of

20:53

people who get arrested in Maryland or

20:56

whatever. Right? Right. And

20:58

it's not clear those rape kit backlogs that they don't give a

21:00

shit about. Right. The solution

21:03

is taking survivors who come in

21:05

and try to report sexual assault

21:07

seriously, which they don't do. Right?

21:10

Cops truly don't give a fuck about this stuff. So

21:12

I sort of like bristle a

21:14

little bit at the implication that they're just

21:16

trying to solve crimes here. No, they're not.

21:19

Right. All right. This feels like a good

21:21

time for a break. All right. We

21:23

are back. There are some subtle ways

21:25

that this majority opinion is very disingenuous

21:28

to the point where it reads almost like

21:30

bad fit. We already

21:32

pointed out that Kennedy uses

21:34

this bastardized definition of identifying someone

21:37

and that he completely ignores the

21:39

express purpose of the Maryland law.

21:42

But there's also some other weird little

21:45

tourist prudential nerd bullshit going

21:47

on here. When you're

21:49

arrested, the police can legally

21:51

search you for weapons, et cetera. Right?

21:54

That is called a search incident to arrest.

21:57

But the thing is that there's already

22:00

Supreme Court case saying that searches

22:02

incident to arrests are limited to

22:04

searches for weapons and evidence related

22:07

to the crime. So

22:09

Kennedy can't just say, well, this is

22:11

a search incident to arrest because the

22:13

DNA test is a search for evidence

22:15

related to other crimes,

22:18

not this crime. So

22:20

there's also a doctrine called special

22:22

need, which basically says you can

22:24

conduct searches even without suspicion of

22:26

a crime if there's a special

22:28

need to do so. That's very

22:31

case by case, but the quintessential

22:33

example is drunk driving checkpoints. They

22:35

pull you over without suspicion just

22:38

to make sure you're not drunk. But

22:40

Kennedy admits that this doctrine doesn't apply

22:42

to the cheek swabs either. So

22:45

it's not a search incident to arrest.

22:47

It's not a special need. What

22:50

exactly is it? Why is this

22:52

legal? Kennedy never really explains this.

22:54

He never really clearly states the

22:56

doctrine that he's basing his decision

22:58

on. Right. And Scalia

23:00

mentions like a third sort of

23:02

category of suspicionless searches that

23:05

they have given the okay

23:07

to. And those are specifically

23:09

when the searches are

23:12

not related to solving crime

23:14

and police enforcement. For example,

23:17

drug testing, public school teachers

23:19

or railroad workers, right? For

23:22

regulatory reasons, because we're

23:24

concerned about safety on the railroads or

23:26

the bus drivers and shit like that.

23:28

But this is not searching

23:31

for evidence of crime, which is

23:33

the exact opposite of what's happening

23:35

here, which is very

23:37

explicitly and specifically searching

23:39

for evidence of

23:41

criminal activity. Right. So the

23:43

fact that Kennedy almost definitely

23:46

dodges around all this

23:48

shit makes it very

23:51

obvious that he sort of knows what

23:53

he's doing. It's not just a sloppy

23:56

opinion or something where you're like, what's

23:58

the doctrine here? He's very carefully

24:00

refusing to admit exactly

24:03

what the doctrine that

24:05

he's supposedly applying is, or

24:07

what the rule is even. And

24:10

I don't know, I think that shows an

24:12

intentionality that I didn't entirely pick up on

24:14

when I first read it, but then once

24:16

you dig a little deeper, do some research

24:18

into the cases, you're like, well, he obviously

24:20

knew what he was doing here. He knew

24:23

that he was fucking around a little bit,

24:25

that he was just making this

24:27

rule just so, so

24:29

that he could say this

24:31

was constitutional, even though under

24:33

every known analysis, it's clearly

24:35

unconstitutional. Right. That's right.

24:37

I think you can tell that this

24:39

is very intentional when you think about

24:42

the bigger context here of DNA swabs.

24:45

Like I mentioned, up top,

24:47

Maryland laws actually was one of

24:50

the more protective, it was limited

24:52

to violent crimes.

24:55

And King took a guilty plea here and

24:58

he didn't admit culpability, but he did plead

25:00

guilty to assault. So there were like

25:02

a lot of off-ramps for the court

25:04

here to rule

25:06

narrowly that only in some

25:09

circumstances, but DNA is appropriate,

25:11

like for arrest for violent crimes

25:13

or after somebody

25:15

has pled guilty. And so this was sort

25:17

of like an inevitable discovery sort of thing

25:20

in the fourth amendment context. Instead,

25:23

this is like explicitly written

25:25

to make sure that

25:28

all these other laws, these

25:30

much broader laws are

25:33

constitutional too. Right. They've

25:35

got their eye on California and all

25:37

the other states that are swabbing everyone

25:39

they arrest and saying, yeah,

25:41

we don't even want to hear

25:44

challenges about that. So it's pretty

25:46

obviously like disingenuously written. I

25:48

think another hint that this is disingenuous

25:51

is Kennedy loves to talk about dignity,

25:53

personal dignity, and it's a

25:55

big feature of his jurisprudence actually. And

25:58

in this, he just sort of... shrugs it

26:00

off is like, oh look, this

26:02

isn't any more undignified than like

26:04

the normal indignity of a rest,

26:07

essentially. And I'm like, I

26:09

don't know, man, like someone

26:13

sticking something in your mouth or

26:15

up your nose or drawing your

26:17

blood does actually seem

26:19

like a little more of

26:22

an imposition on dignity. Not

26:24

to mention that like, yeah, okay,

26:26

maybe clipping someone's nails in hair

26:28

isn't that undignified and maybe a

26:31

cheek swab isn't that much of an

26:33

impingement on your personal dignity, just

26:35

one vial of blood and on and

26:37

on, but you add all that up.

26:39

Right. You know, and all of a

26:42

sudden it's all big in pieces, it's not your

26:44

dignity, you're being poked and prodded and treated like

26:46

a fucking lab rat. One thing I hate about

26:48

these cases is that they're always like, well, it's

26:50

just like a little cheek swab or whatever, but

26:52

that's not the full

26:55

extent of the indignity.

26:57

Part of the indignity is that

26:59

they are taking that DNA and

27:01

implicitly accusing you of potentially having

27:04

committed another crime with no reason to

27:06

believe that you did. That's

27:08

the indignity. It's the

27:10

fact that they are being like, we arrested you for

27:12

something, so maybe you committed other crimes and we're going

27:14

to like go find out even though we have no

27:16

reason to believe that. That's part

27:18

of the indignity and that's part

27:20

of like the violation of your privacy, but

27:22

the court never fucking talks about it like

27:25

that. I don't really know why the court

27:27

sort of refuses to accept that

27:30

that is in fact a bad thing,

27:32

that it is a bad thing to

27:34

implicitly be like, well, you might've committed

27:36

a crime. Yeah. Like

27:38

the underlying logic of this is

27:40

anybody who's arrested, anybody who's arrested

27:42

for this law, anybody

27:44

who's arrested for violent crime, but for other

27:47

laws, like California's law to find, it's

27:49

just literally anybody who's arrested is automatically

27:52

suspect for legitimately

27:54

any crime for which they have

27:56

a DNA sample on for sale.

28:00

the country. Legitimate. That's it.

28:02

You've been arrested for any reason.

28:04

We believe we have good reason

28:07

to think you committed some other crimes.

28:10

You're or elsewhere in the past. That's

28:13

the logic behind this. And yeah,

28:15

that is actually quite a hit

28:17

on someone's dignity, especially when you

28:19

know how easily some populations get

28:21

arrested. I mean, if

28:24

the standard for you can

28:26

have your DNA taken and put into

28:28

a database where it will

28:30

rest forever and be checked against any

28:32

crime that ever has or ever will

28:34

have DNA collected from it. The standard

28:36

for that is just you've been arrested.

28:39

That's a pretty low standard because it's very easy

28:41

to get arrested. Like that's

28:44

not a hard thing. We got arrested

28:47

for protesting and Michael for serial assault

28:49

or whatever. For carrying

28:51

a beer in public and for disorderly

28:54

conduct at a homecoming

28:56

bonfire where I ran

28:58

up and I touched the bonfire. I slapped

29:01

the bonfire. Do you have

29:03

a three hosts of the podcast who've been arrested? And

29:05

our total arrests average up to one arrest

29:07

per hour. So

29:10

Scalia talks about the

29:12

violation of the

29:14

body in a way that I

29:16

don't quite vibe with. Like when we were prepping,

29:18

I think I mentioned it feels like almost a

29:20

little bit religious. I don't

29:23

quite view it like that, but I do think

29:26

it makes sense to draw a bit of a line.

29:29

Putting a Q-tip into your mouth

29:31

or whatever, I

29:34

sort of agree not a huge deal, but

29:36

there is a real risk of slippery slope

29:38

here. Like what's a little blood

29:40

draw? What's a slightly bigger

29:42

blood draw? What's

29:44

being strip searched? All of

29:47

these things are sort of

29:49

violations of your physical person.

29:52

And I don't think we should just let

29:55

them fly under the radar so readily as

29:57

if they are nothing. I think it's important

29:59

to draw a firm line. line and someone

30:01

saying, Hey, I don't think the cops should

30:03

be able to place something

30:05

into your body. I don't think that's a crazy line

30:07

to draw. And you know, the fourth amendment offers good

30:09

guidance here. The right of the people

30:12

to be secure in their persons. First

30:14

in line before houses, papers and

30:17

effects against unreasonable searches and seizures

30:19

shall not be violated. Like, yeah,

30:21

right there. Why not?

30:23

That's as good a place as any to draw

30:25

the line. They can't just treat

30:27

you like a little lab rat.

30:29

Right. And I do think a

30:32

lot of this is technology sort

30:34

of obscuring what's happening here, right?

30:36

If a cop had to take like

30:38

a little printout of your DNA genetic

30:40

markers, you know, and

30:43

compare it visually to other DNA

30:45

samples and like go down to

30:47

the evidence locker and specifically request

30:50

cases to look at one

30:52

on one to compare them. I

30:55

think it would be very quickly

30:57

apparent and obviously salient. What was

30:59

happening here, which is they

31:02

were saying, Oh, we think this

31:04

person might have been involved in this

31:06

other crime, but because this is all

31:08

done digitally in a database where we

31:10

just like input the sample

31:13

and then press a button and

31:15

say, CODIS, are there any hits?

31:17

And then CODIS says yes or no. That

31:20

makes it seem like what's happening here

31:22

is a small intrusion

31:24

and not a big

31:26

deal. Right. But that's not it at all. Like

31:28

what's happening here is technology is streamlined that

31:31

process of visual comparison of

31:34

your genetic material, right?

31:36

Your genome. But just

31:39

because it's streamlined doesn't mean it's any different from someone

31:42

going through their evidence locker and visually

31:44

comparing them one at a time. No,

31:46

I mean, the implication here is that

31:48

if you're arrested, cops can take your

31:50

DNA sample and just one

31:52

by one compare it to the DNA

31:54

samples in tens

31:57

of thousands of other cases.

31:59

Right. I think you're right that if

32:01

that process involved like,

32:03

I don't know, five minutes

32:06

of work each. Yeah. I

32:09

mean, yes, it would be impossible. But would

32:11

a court really approve of that? Of like

32:13

the police department making all of those comparisons?

32:15

No, I think they would see it for

32:17

what it was. And yeah,

32:19

I think the technology just sort of obscures

32:22

how much of a violation

32:24

this actually is and obscures

32:27

the obvious intent of

32:29

the cops here, which is clearly not

32:31

to identify this guy, right? It's to

32:34

see if he committed other crimes. Right.

32:37

The key feature of this is that they've

32:39

already identified him. And now they want to

32:41

use that identification to see

32:43

if it matches up with like evidence

32:45

from other crimes. Yeah. I

32:47

mean, it's so easy to talk yourself in circles with this case. But

32:50

like, the bottom line for

32:52

me is the Fourth Amendment says that

32:54

you cannot conduct an

32:57

unreasonable search, right? What's

32:59

more unreasonable than a search that

33:01

you have no evidence for? Like

33:03

they don't have any

33:05

reason to believe that this man

33:08

committed any of those other

33:10

crimes. Right. And yet they

33:12

are running his DNA to see if he

33:14

committed them. That's got to be a fucking

33:16

violation of the Fourth Amendment. If that's not,

33:18

how could that be a reasonable search? What

33:20

is your reason for doing it other than

33:22

the fact that you might just get a

33:25

random hit every now and then? Right.

33:28

That has to be the crux of the

33:30

Fourth Amendment. But here we are acting like

33:32

that doesn't even fucking matter. Anthony Kennedy basically

33:34

being like, yeah, suspicion. That's

33:36

not really part of the Fourth Amendment. Right. Yes,

33:39

it is, dude. It's got to be

33:41

the whole fucking thing. Yeah. That's

33:44

a very premise that like, no, it's reasonableness

33:46

and suspicion of a crime

33:48

doesn't play a role at all

33:50

in the reasonableness determination. Right. Taking

33:53

that logic to the extreme is

33:56

like, yeah, well, we could just, as long

33:58

as it's minimally intrusive,

34:01

we could just take everybody's DNA.

34:03

Why not? I mean, we're talking

34:05

about technological advances, right? Kennedy

34:07

is saying you don't need suspicion to

34:10

conduct a search as a general matter.

34:12

Instead, it's all about balancing the government's

34:14

interests with the invasion of privacy. So

34:16

you could imagine a theoretical

34:20

invasion of privacy that's small enough that

34:23

anyone could be searched, right? So

34:25

let's imagine that there's a machine

34:28

one day that can analyze the

34:30

DNA of someone just by looking at them,

34:33

right? You point it at them, it has

34:35

their DNA. No cheek swab, nothing. Takes your

34:37

DNA and then runs it across a database.

34:40

Under Kennedy's rubric, that's fine. And you

34:42

could just blast that machine at everyone.

34:45

You could just be running

34:47

that against random crowds of people

34:49

because there's no invasion of privacy.

34:52

So it's reasonable. Totally fine.

34:54

I mean, that can't fucking be

34:57

what the test is. No. I don't

34:59

think that that's what any actual sane

35:01

person thinks the Fourth Amendment allows. Right.

35:03

You need to have some fucking suspicion

35:05

of a crime. It's like the most

35:08

obvious fundamental feature of the Fourth Amendment.

35:10

Yeah. It drives me fucking insane, even

35:13

having to talk about this. If

35:15

the Fourth Amendment doesn't prevent the

35:17

sort of establishment of a genetic

35:19

police state, essentially, then it

35:21

doesn't do anything at all, right? If it

35:24

doesn't prevent this sort of massive

35:27

database and generalized

35:29

searching, then it doesn't do anything at

35:31

all. I don't even know how to say

35:34

it any more than that. At one

35:36

point, the majority is like, FYI,

35:40

this would not apply to

35:43

invasive surgeries. Right. And Scalia is

35:45

like, well, the fact that you

35:47

even had to clarify that. Right.

35:49

It's more damning than anything I

35:52

can write. It's true

35:54

because when you remove suspicion

35:56

from the equation, all of

35:58

a sudden, If the government

36:00

need to do something or the

36:03

utility to the government of doing

36:05

something is large enough, they can

36:07

infringe on your privacy very freely.

36:10

And I don't think that any person thinks

36:12

that that's how the police should work. That

36:14

like, well, if it's really useful

36:16

for us, then yeah, we can violate your

36:18

rights. No, that's not. That's

36:21

like the opposite of what the fourth amendment

36:23

should mean. This case fucking sucks, man. Dude,

36:25

this case blows ass. Fucking

36:27

Briar, man. Fucking Briar. You

36:29

fucking loser. You know, he gets sucked

36:31

in by a balancing test. Yeah. He

36:34

sees a balancing test and gets very, very

36:36

erect. Ooh, I like that. Like

36:39

Clarence Thomas literally does not give a shit

36:41

about the fourth amendment. So this makes sense.

36:43

He's like, whatever is best for the cops.

36:45

Like, you know, the Maryland's lawyer gets up

36:47

there and Thomas is like saluting and, you

36:51

know, Alito, whatever, same basic deal. But

36:54

Briar, come on, man. You've got, what the fuck

36:56

do you think the fourth amendment is? What do

36:58

you think it is? I

37:01

understand these like, you know, pseudo

37:03

fascist justices don't give a shit,

37:05

but if you are

37:08

even remotely liberal minded, I don't know how you

37:10

let this slip past you. Yeah, it's

37:13

2013 too at this point. We've

37:15

had a decade of war and terror. How

37:17

do you not know at that point about like

37:20

the dangers of like

37:22

indulging the government's surveillance whims?

37:25

Right. Right. Right. Like

37:28

your own ass you have to be. And

37:30

I guess so far up your own ass that like in

37:32

2023 or whatever, you have to be like, wait,

37:35

there are still habeas cases for

37:37

Gitmo. Right. Right.

37:39

Whatever. There's

37:41

an element in the majority and maybe I'm

37:43

inferring too much, but there's an element in

37:46

the majority of being like, this

37:48

is the miracle of technology. Like,

37:50

yeah, yeah. It's making us so

37:52

much safer. This is great. Right.

37:55

Right. Like what a cool opportunity. Like I

37:57

was like, I'm not going to watch the science fiction

37:59

movie. I was gonna say, these are people who have never,

38:02

Breyer at the very least, have

38:05

never actually like absorbed and understood the

38:08

moral of like any work of speculative

38:10

fiction. Right. At

38:12

all. At all. Kennedy

38:15

and Breyer are watching like I,

38:17

Robot or whatever and definitely

38:20

not reading it. So I'm using

38:22

watching very specifically. But they're watching

38:24

I, Robot and they're like, next

38:27

time we got a program

38:29

that robots better. Yeah, exactly. That's

38:32

the lesson. Breyer's like, big brothers are

38:34

nice. I love my brother. They

38:38

take care of you, they watch out for

38:40

you, they protect you from the bullies. I

38:43

love big brothers. God,

38:45

what a bunch of fucking schmucks. This

38:48

is such a good example

38:50

of how fucking rundown the

38:52

fourth amendment is. We're like,

38:54

this case doesn't get that

38:56

much attention outside of

38:59

academic circles. But the idea

39:01

that the Supreme Court could just hand down

39:03

a ruling being like, yeah, you

39:05

don't need any suspicion to support a fourth

39:07

amendment search. Just check

39:09

your DNA against tens of thousands,

39:11

if not millions of samples across

39:13

the country. God, Kennedy, what

39:16

a fucking loser. All

39:18

right, well, unfortunately we couldn't

39:20

have Rion to explain to us

39:23

whether she would have appreciated

39:25

or hated a cheek swab or what,

39:28

when she was arrested. She

39:30

did tell us however, that she was not

39:32

swabbed. Yeah, she said they were too overwhelmed

39:34

by the volume of arrests. Which is

39:36

good. All

39:41

right, next week, Arizona

39:44

v. Navajo Nation case

39:46

from not too long ago about

39:49

water rights for native

39:51

tribes. We'll do

39:53

that of course, unless Donald Trump

39:55

gets convicted, in which

39:58

case maybe we'll do that. A

40:00

big, everything you need to know

40:03

about Donald Trump being a felon.

40:05

Yeah, and then of course, as always, if Donald

40:08

Trump passed away of natural causes, we will do

40:10

a special episode on that too. Correct.

40:13

And, oh yeah, if you

40:15

want to see 5-4 live

40:18

this summer, we

40:20

will be at the Hamilton

40:22

in D.C. on July 12th. Tickets

40:25

for that will be live in the next couple

40:27

of days. And we will be at the

40:30

Bell House in Brooklyn on July

40:33

15th. Tickets

40:35

are available now. Follow

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sorts of shit. We'll see you next

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week. Bye everybody. 5-4 is presented

40:56

by Prolog Projects. Rachel

40:59

Ward is our producer. Leon

41:01

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our theme song is by Spatial Relations.

41:27

I'm just imagining the bail hearings turning

41:29

into like Jerry Springer like, oh, we're

41:32

running the DNA. Did

41:35

we get a map? Right. Did

41:37

we get a map? You are not the perp.

41:39

Sorry, I'm sorry. I

41:43

just have this, now I have this image.

41:45

Like a wheel of crime.