Your rights are only worth the probable cause used to extinguish them

This, folks, is what happens when you don’t pay attention to the erosion of our collective rights. This is what happens when you steadfastly maintain an “us vs. them” attitude. This:

Maryland Deputy Attorney General WINFREE: But what I — the cornerstone of our argument is that when an individual is taken into custody, an individual is arrested on a probable cause, on a probable cause arrest, that person by virtue of being in that class of individuals whose conduct has led the police to arrest him on — based on probable cause surrenders a substantial amount of liberty and privacy.

If your eyes haven’t popped out of your head yet, you should check with an ophthalmologist. They may be stuck in place. The Government – Your Government – has brazenly started taking the tact in open court that simply by virtue of being arrested, an individual surrenders a “substantial amount” of liberty and privacy. I’m pretty certain she didn’t mean this in the literal sense of arrest and being locked up (which also has some requirements of balancing interests). This is in the sense that once you’re arrested, your rights are limited and you, by virtue of causing the police to arrest you, have forfeited privacy expectations and Constitutional rights.

Her argument, in that brief moment before Justice Kagan challenged her on it, was that by virtue of an arrest, an individual has voluntarily sacrificed his Fourth Amendment rights as is the issue in the case she was arguing.

Do you know what it takes to arrest someone? Next to nothing. You know the “ham sandwich” joke? Well probable cause is what they replaced grand juries with. And probable cause is whatever the hell they want it to be. It doesn’t have to be probable cause of the particular officer making an arrest, either and it can be based on completely innocuous every day actions of regular people.

I don’t normally say this, but thanks Justice Kagan:

JUSTICE KAGAN: But, Ms. Winfree, that can’t be quite right, can it? I mean, such a person, assume   you’ve been arrested for something, the State doesn’t have the right to go search your house for evidence of unrelated crimes; isn’t — isn’t that correct?

MS. WINFREE: That’s correct, Justice Kagan.

JUSTICE KAGAN: It doesn’t have the right to search your car for evidence of unrelated crimes.

MS. WINFREE: That’s correct.

JUSTICE KAGAN: Just because you’ve been arrested doesn’t mean that you lose the privacy   expectations and things you have that aren’t related to the offense that you’ve been arrested for.

Of course, what’s lost is that this State (Maryland) and the 49 other states that joined Maryland via an amicus brief already routinely take the position that once you’re arrested, you lose rights. (CT passed just such a bill last year. All my posts on DNA are here.)

In the case being argued, Maryland v. King, the Court is tasked with applying the Fourth Amendment to the 21st Century (is your computer’s recycle bin like your home’s trash can?). When someone is arrested for Crime A, can they take the person’s DNA and then enter it into a cold-case database to see if it matches any old crime. In King’s case, it did. He was then charged with and convicted of Crime B. At the time they took the DNA, they had absolutely zero suspicion that he was involved. It’s a routine procedure done with all arrestees.

These laws permit the collection of DNA from anyone who’s been arrested because they got into a drunken bar fight or because their boyfriend called the cops and said they were threatened or because a vindictive neighbor doesn’t like your dog pooping on his lawn or because you’re driving while black. And you have to give up your DNA, because the Man said so. And with that DNA, you give up your genome, your individual traits and characteristics.

You can read the oral argument transcript here and reports from SCOTUSBlog, the ABA Journal, the WaPo and the NYTimes to get a sense of how the court will rule. There are some Scalia zingers in there too. But I wanted to highlight this separate quote, for fear that it will get lost in the greater discussion.

And I want to keep asking that question: why aren’t you scared yet? Why don’t you care enough?

Justice Alito called this the “most important criminal procedure case this court has heard in decades”. He’s absolutely right. It’s time for the court to decide what’s more important: helping cops catch crooks or the individual liberties and freedoms of every citizen of this country. The answer’s clear to me. Is it to you?

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  1. Pingback: Man. Black. Guilty. | a public defender

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