Police Illegally Seizing DNA from Drivers

Sorry but I will agree with all those in this Thread that said police can not force a person to take a DNA test.

They need a court order and probable cause.

Sorry but if anybody have given a DNA to police in random stopping that will be call voluntarily and that is just giving away your privacy rights.

No court paper and charge no DNA test.

[edit on 7-2-2008 by marg6043]

reply to post by benign.psychosis



You are dead wrong again. You do NOT understand the law at all. A " Reasonable ' search is one that is based upon ' PROBABLE CAUSE ' which requires a hell of a lot more than some serial killer being loose to grab a citizen and demand DNA!!

It is NOT reasonable to assume that everyone out there is likley the killer, now is it? Of course not. Then it is NOT reasonable under the law. Cut and dried. YOU ask any attorney, and they will tell you that the cops' do NOT have the right to insist on swabs just because they think that is a great way to proceed. You are totally wrong.

What you are saying is that you think that our rights should be subservient to the wishes of the police. You are saying that you believe that we should all obey the cop's anytime they give a reason and demand some action on our part. Fine, if you are that way, thats you. But STOP please trying to say that there is any law that backs this up: There is not.

The courts have ALREADY ruled on all this. It is not some new idea. Cop's lying and bluffing does not equal a law being implemented. If a citizen refuses to give the DNA, they CANNOT be legally required to do so, unless the cop's quite a bit of independent evidence in addition to the refusal. A refusla alone does NOT constitute some kind of trigger that allows cop's to forget about the Constitution!!

Of COURSE the serial killer can refuse the DNA test also!! Thats the whole point!1 Did it go over your head? If he cannot refuse invasive and bothersome police intrusions into our lives, then we cannot either. If one does not have a right, then none have it. You DO understand this philosophy, correct? OK. Now, comprehend this: We cannot be made to surrender our rights because of some situation that occurs. There is always some situation, some serial killer..some bad guy. If we lost one right every time a serial killer was sougfht, we would have ZERO left by now, and that is coming close.

But thank God we still have a few rights, and one of them is NO searches or seizures without a warrant. The cop's CANNOT demand legally that we comply; all they are doing is lying and bluffinganmd using intimidation and coercioc to get what they want, and as soon as the ACLU gets a hold of this, it will come to s screeching halt. VOLUNTARY is oine thing: Demanding is illegal and unConstitutional.

I suggest you do some legal research into the meanings of the words: " Reasonable Grounds to Believe ' and ' probable cause' as well as the relevant Supreme Court decisions. That will settle your wrongful legal advice. It is NOT reasonable under the law to assume that people who have shown absolutely no reason to be suspected could be forced into giving up body fluids on the side of the street to some flatfooted jerk of a cop that might very well misuse or mishandle your most personal info.

IF the cop's have collected a lot of other evidence and all they need to wrap up the case is a DNA sample, they can go to a judge and get a warrant. Thats the LAW. You can bet that the cop's did NOPT go to any judges before they stated this Nazi madness: As soon as one case gets to court it will all be thrown out and I am glad. The cop's have NO business sticking anything into the mouths ( or any other orifices ) of a citizen without a warrant. Plain and simple: No warrant, no legal demand.

I hope this corrects your previous misconceptions concerning the law and the rights we still enjoy.
.

reply to post by eyewitness86


thanks for posting such a eloquent view of what is entitle under law in search and rescue also on probable cause.

No court order and probable cause no DNA test.

What is the difference between a mouth mucosal swab and a breathalizer conducted at roadside?

Other than the wait time for results?

Both involve an invasion of personal space. Both involve taking a sample that is unique to the individual. And in both cases the individual has the right to refuse to submit to the testing.

Does refusing to submit give "probable cause" or make that individual a "person of interest"? Depends on the rest of the circumstances.

The article also states that it is "persons of interest" that are being swabbed.

[edit on 7-2-2008 by kerontehe]

reply to post by kerontehe

Under an implied consent law, any person who operates a motor vehicle in the state is deemed to have consented to a DUI chemical test. The implied consent law serves as a means for gathering evidence against a DUI defendant. Although the implied consent law is legal, it fails to mask the law’s foundational fallacy that a driver's presence on a state's highway indicates an agreement to submit to a chemical test for drugs or alcohol upon the lawful request of a police officer.

Source | DUI Defenders | Implied Consent

To my knowledge, there is no law on the books that implies you must submit to a random DNA swabbing, therein lies the difference.

Originally posted by kerontehe
What is the difference between a mouth mucosal swab and a breathalzer conducted at roadside?

Other than the wait time for results?

Both involve an invasion of personal space. Both involve taking a sample that is unnique to the individual. And in both cases the individual has the right to refuse to submit to the testing.

Does refusing to submit give "probable cause" or make that individual a "person of interest"? Depends on the rest of the circumstances.

Here is your answer: A cop cannot ask a driver legally to take a breath test unless he has ' reasonable grounds ' to believe that the driver has used alcohol and is impaired. Cop's cannot just pull you over and give you a breath test because they feel like taking a chance. Lets say you were weaving, and after you got pulled over, the cop smells alcohol. He asks you to get out, and take a roadside test, like pointing fingers and looking at eye reactions, etc.

Then if you fail those tests, the cop has reasonable grounds to ask you to take a breath test. He has several items that he can attest to that would give a reasonable person grounds to believe that in fact alcohol had been consumed.

The scenario with the swabs has NO other evidence of a crime at all, none. There is NO suspicion at all; it is just an general gathering of potential evidence using illegal coercion to get compliance. The drivers being asked to comply have given NO indication of ANYTHING that could lead the officer to suspect that this is in fact the serial killer: It is a fishing expedition, whereas with the breath test example, it is akin to going fishing in a pond where the fish are stocked and hungry and waiting to be scooped up.

So it is totally different: One situation has lots of factors that point to a likley result, and the other has ZERO factors that point to any result. One is a total guessing game, and one is a carefully crafted case built on layers of proof and capped off with the test.

You CAN legally refuse a breath test also: You may be penalized later in court for doing so, but you cannot be compelled to take one without a warrant or court order. No matter the cause, when it comes to testing and taking, or ' seizing ' evidence of a crime, the police can never demand , only ask. Any demands they make should be directed to an attorney so a judge can slap this nonsense down before more drivers are accosted and lied to by the cop's.

I hope this helped.

reply to post by goosdawg


Agreed. even though the implied consent has been challenged sucessfully in court.

My point is - the article states that the swabs are collected from "persons of interest".

reply to post by eyewitness86



Refusing to give up constitutional rights is NEVER allowed to be used as probable cause. No way. Cop's CANNOT say that your refusal was somehow suspicious: You have a RIGHT to refuse. Your RIGHTS cannot be used against you. There is NOTHING suspicious about invoking your rights, and no probable cause can be had from that factor. It does not come into play regardless of the other evidence.

What you are thinking is what the cop's want you to think; that somehow not giving in and throwing the rights away is suspicious, and it is not. It is smart, the ONLY smart thing to do. If the cop's do not like it, tough. Who cares what some cop thinks? Crazy!! They are non entities unless needed. They are NOT allowed to demand DNA swabs legally, so they just lie and tell drivers that they DO have the legal right, and the drivers who are too ignorant of the law and their rights to know better often believe the liars, the cop's and give them what they want.

Coercion and intimidation are the cop's most used weapons against the ordinary citizen, and so you must stay strong, silent and refuse to be budged. Call their bluff, and let them know that if they in ANY way violate any of your rights that you WILL sue them in Federal court for civil rights violations. Cop's HATE the thought of being dragged into a fed court and being grilled about their lies and bluffs. It is an excellent tool to keep cop's in line.

reply to post by eyewitness86


Sane as my reply to goosdawg. These swabs are reportedly being taken from "persons of interest".

Does being a person of interest give probable cause?

If law enforcement is working with an agreeable judge, it should be pretty easy to obtain a court order quickly.

Lab Mistakes and Chain of Custody
Maybe what people fail to realize is that once your sample gets into the system, especially your DNA, then you have to rely on the lab they select doing the testing properly and also properly storing and cataloging your sample and the results.

Let's say the perp's sample and yours are in the same test rack and the technician picks up your sample, thinking he had the one in front.

It's not like looking at a picture of you, handling a DNA swab which looks like all the other samples rapidly becomes a matter of trust in the chain of custody procedures, and of the handling habits of overworked technicians.

Can the lab the cops use make a mistake, particularly given that they are now processing hundreds of additional samples? You bet they can.


Getting put in the 'System'
Maybe, eventually, any such mistakes get cleared up, but meanwhile the hapless victim is put through the legal and financial wringer before it gets straightened out.

Many, many innocent people have been arrested and jailed and wronged just for having the same name of a bad guy and being in the wrong place at the wrong time. Do you think the cops care? Heck no, they just want to 'solve' the case and get a suspect.


Beware giving 'blood' samples
Even worse is if they request collecting a blood sample. Can anyone guess why? Well, it becomes trivial for the cops to accidentally (or on purpose) plant your blood at a crime scene. Do we know what they do with the unused portion of blood? Heck no. In fact it's even worse if they do it accidentally - then who knows how it could get straightened out?

In addition you now become a potential target of blackmail, especially if you are a well-known or famous person. 'give us X dollars or we'll plant your DNA at some crime scene'.

They don't even have to do it, or be connected with the lab, actually.

Say you gave a blood sample and it was public knowledge. Someone could then make an anonymous call like this to pay 1000 bucks or your sample might be at risk - wouldn't you pay, rather than be raked through the coals?


Getting put in the 'System'
OK, maybe a little far fetched, but with a blood sample (unlike a swab), I'm just saying it's a lot riskier to let the cops have it - we've all heard of innocent people getting caught up in the 'system'. Again, I'm not saying it would happen all the time - just giving a heads up on the potential problems. Once your data is in the system, who knows how long you might be at risk for a mistake or a threat?

It's just not a good idea, no matter the perceived benefit.


What's the real reason for this
Obviously, to me, in this case, there's something suspicious going on, because those labs usually have an incredible backlog. I'm wondering if they really mean to process those.

Be careful out there people. It's not so difficult to manufacture evidence and now with digital alteration in real time, you could be framed of anything in an instant, even though you were just handing out books at the depository and eating lunch.




[edit on 7-2-2008 by Badge01]

reply to post by kerontehe


Let's put it this way, if you are in traffic stop because the police is looking for a perpetrator, assassin, murdered or else and he ask to give a swap because you are to them a person of interest, will you do it?

I won't, if they insist to take me arrest me for refusing I will allow to be taken but I will call my lawyer before they even touch me.

That is my right, unless they tazer me and we all know that went it comes to police this days anything is possible.

I'm kind of wondering if this might not be a bit of a big wind over nothing... I don't doubt therre are police who would try to take advantage of the situation. What I am wondering is, if this is true as printed, how come the Lawyers aren't all over it like white on rice (Please pardong the terrible comparison)...

I suspect there is more here than meets the eye of certain cop haters, and supporters alike. We aren't getting the whole story from an article, I'd wager.

Originally posted by kerontehe
reply to post by goosdawg

 

Agreed. even though the implied consent has been challenged sucessfully in court.

My point is - the article states that the swabs are collected from "persons of interest".

And WHAT exactly is the legal definition of " person of interest"? Hmmm? I will tell you what the standard is: Anything that any cop feels like. Thats what. If a person has the same color hair, THAT could make them a person of interest. A person who refuses to answer any questions because they are educated about their rights may be a ' person of interest ' also, and that is illegal.we CANNOT leave it all up to each cop what they think a person of interest is.

I guarantee you that NONE of the people who were coerced or bluffed into this garbage by some lying cop was a ' person of interest ' to the cop!! Of course! What else! If you are breathing and the same sex as the killer, you are a ' person of interest '. what a scam. how can people be so naieve? Cop's lie like we breathe, every time we open our mouths.

So a ' person of interest ' is left up to each and every cop to decide...that great, thats really scientific..my God, what a pathetic excuse for an investigation. If all the cop's have is enough energy to harrass innocent citizens and demand illegally that they give up their rights, then the case is so cold they may as well go back to sleep and rush to the donut shop; at least they would not be offending the citizens and lying to them about their rights. Giving anything to a cop is a losing proposition; no warrant, no give.

1. What you say to the police is always important. What you say can be used against you, and it can give the police an excuse to arrest you, especially if you bad-mouth a police officer.

2. You must show your driver's license and registration when stopped in a car. Otherwise, you don't have to answer any questions if you are detained or arrested, with one important exception. The police may ask for your name if you have been properly detained, and you can be arrested in some states for refusing to give it. If you reasonably fear that your name is incriminating, you can claim the right to remain silent, which may be a defense in case you are arrested anyway.

3. You don't have to consent to any search of yourself, your car or your house. If you DO consent to a search, it can affect your rights later in court. If the police say they have a search warrant, ASK TO SEE IT.

4. Do not interfere with, or obstruct the police -- you can be arrested for it

American Civil Liberties Union | Know Your Rights: What to Do If You're Stopped by the Police

Everyone stop for a moment and review the above site.

It could mean the difference between being able to carry on with your drive, or being swept up into the system.

Originally posted by eyewitness86
reply to post by benign.psychosis

 

You are dead wrong again. You do NOT understand the law at all. A " Reasonable ' search is one that is based upon ' PROBABLE CAUSE ' which requires a hell of a lot more than some serial killer being loose to grab a citizen and demand DNA!!

Sorry, Buddy. You're wrong. I take it you get legal information for some type of conpiracy or truth site. Only unreasonable searches and seizures are based on probable cause. A police officer has every right to perform a search/seizure that is reasonable. I'll list some of them later.

As far as DNA, if you - or anyone else for that matter - feels that it is unreasonable to swab a mouth to capture a serial killer, then you can exercise your right to change it. Write your congressmen or take your situation to court. Until it is contested by someone or by a group, or defined in the law specifically, then it is reasonable.

It is NOT reasonable to assume that everyone out there is likley the killer, now is it? Of course not. Then it is NOT reasonable under the law. Cut and dried. YOU ask any attorney, and they will tell you that the cops' do NOT have the right to insist on swabs just because they think that is a great way to proceed. You are totally wrong.

Again, if the driver submits it is entirely legal. If the driver is pressured into it it is entirely legal by supreme court ruling. If the cop forces the driver to take the test, it is still legal - unless it is contested in a court of law, the point is moot. You may as well throw your ideal legal system out the window now, buddy.

What you are saying is that you think that our rights should be subservient to the wishes of the police. You are saying that you believe that we should all obey the cop's anytime they give a reason and demand some action on our part. Fine, if you are that way, thats you. But STOP please trying to say that there is any law that backs this up: There is not.

No, I think that is what you are saying.

The courts have ALREADY ruled on all this. It is not some new idea. Cop's lying and bluffing does not equal a law being implemented. If a citizen refuses to give the DNA, they CANNOT be legally required to do so, unless the cop's quite a bit of independent evidence in addition to the refusal. A refusla alone does NOT constitute some kind of trigger that allows cop's to forget about the Constitution!!

You're acting like an unrealistic romantic idealist. Listen, guy, you can't legally kill anybody either, ok? You can't legally rob a house, or legally rape a woman. You can't legally burn down a building, or blow up an automobile. It's up to the people to report these things, otherwise the point of legality is moot.

Of COURSE the serial killer can refuse the DNA test also!! Thats the whole point!1 Did it go over your head?

Wow.

But thank God we still have a few rights, and one of them is NO searches or seizures without a warrant.

You must live in a very stubborn version of an ideal world. Again, the only types of searches and seizures that require a warrant are those that are considered unreasonable.

Florida vs. White, Chambers vs. Maroney. et. al : Supreme Court stated that mobile objects such are vehicles can be searched without a warrent.

I'd bet that most of the people submiting to those DNA tests were responsible, law abiding citizens that were looking to help out the police, so they submitted to what is called a consent search. According to your fairyland world, this also requires a warrant. Give me a break.

I suggest you do some legal research into the meanings of the words: " Reasonable Grounds to Believe ' and ' probable cause' as well as the relevant Supreme Court decisions. That will settle your wrongful legal advice. It is NOT reasonable under the law to assume that people who have shown absolutely no reason to be suspected could be forced into giving up body fluids on the side of the street to some flatfooted jerk of a cop that might very well misuse or mishandle your most personal info.

You are being very stubborn. I've already shown that it is entirely legal to search an automobile without a warrant, and mentioned consent, which is covered by the Supreme court case U.S. v. Drayton in which it is ruled that when police pressure for consent, they do not have to inform individuals of their right to deny a search if that search is in fact "unreasonable" such as a strip search when there is no actual probable cause, but only suspicion. Patting down a person for drugs or weapons is a "reasonable" search and does not require permission.

I suggest you do some legal research into the meanings of the words: " Reasonable Grounds to Believe ' and ' probable cause' as well as the relevant Supreme Court decisions.

Ok... these are all searches that do not require a warrant, ruled by the supreme court, that knock your 'NO searches or seizures without a warrant" out of the window.

Frisking - Terry v. Ohio
Search Incident to Arrest - United States v. Rabinowitz and others
Vehicular Searches - Already mentioned.
Vessel Searches - United States v. Villamonte-Marquez
Consent Searches - Waiver of rights
Border Searches - Almeida-Sanchez v. United States
Open Fields - Hester v. United States
In Plain View - common sense
At Public Schools - New Jersey v. T.L.O
At Government Offices - O'Connor v. Ortega
Prisons and Regulation of Probation - Griffin v. Wisconsin
Drug Testing - Vernonia School District v. Acton

The cop's have NO business sticking anything into the mouths ( or any other orifices ) of a citizen without a warrant. Plain and simple: No warrant, no legal demand.

U.S. v. Drayton & Consent searches.

I hope this corrects your horrid misconception about my understanding of the law, and reveals that you are the one who is misconstruing the law.

reply to post by goosdawg



Thanks for that post, is nice to have sources for some of our ATS members to see what their rights are.

We should have more post like this ones as we have seen so many problems with our civil rights lately and police enforcing the law or what it seems like the law.

I don't think anything like this can be construed as 'nothing'.

Let me put it another way.

Let's say it's back in the 1960s or 70s and they want to take a blood sample because they know some horrible baby or sheep mass-raper is on the loose. (the more heinous the crime the more easily your rights are trampled)

Just matching the blood's ABO/Rh is not going to solve the case. They'll have to do addition investigation and they'll have to take rigorous care in keeping everything straight or they'll mess themselves up.

But with DNA, a match is a SLAM DUNK. Your DNA at the crime, or your DNA mixed up with the real perp and you're SCREWED, no additional testing (really) necessary. Oh they might put up a sham, but I'm saying it's no like a simple blood type. And it's not like fingerprints where they can take your prints but they can't transfer your prints accidentally or on purpose to a crime scene.

Your blood gets in the system and you're potentially screwed. Even with a swab there's a danger of custody screw ups and premature blame placement, especially in high interest crimes like this.

reply to post by benign.psychosis


Thanks for the information of searches, but do you have anything that shows that in the US police have the right to take DNA swaps from citizens in traffic stop or searches?

That will be appreciated.

reply to post by benign.psychosis


This coming from someone with so little foresight that he would only understand the utter stupidity of his seemingly logical statement from the confines of his government appointed apartment.

Let's see if you can 'read between the lines" on this one.

Good thread Biggie.

AAC

This is clearly outrageous and I am so glad to see that most ATS members "get" this issue -the responses have been excellent. I do have one question, however, and hopefully a member can answer it for me.

I thought that, just this past year in the U.S., some cops were already doing this. The presumption was that when you commit a traffic violation you are essentially commiting a crime thus allowing the cops a twisted version of "probable cause".

Does anyone else remember this case? Does the fact that you are already violating a law change the scenario? I just want to be sure so I can be confident when I say "HELL NO!"


[edit on 7/2/08 by kosmicjack]