The Police Can Go Inside You, Now. Maryland v. King DNA Case Analysis

Start with the presumption that a search without a warrant is an unreasonable search and is prohibited by your 4^th Amendment right to be free from unreasonable search and seizure.

Start with the presumption that the police cannot search you for no reason, and that’s a good thing.  It’s a good thing for the same reason that the government putting a microchip under your skin is a bad thing. 

On top of those presumptions we can find some common ground.  Traditionally, people on both sides of this conversation agree that 4^th Amendment law is a balancing act.  Courts should weigh the privacy rights of individual citizens against the need for governmental intrusion.  If the privacy right is more important than the government need for intrusion, the intrusion should not be allowed. 

Let’s talk about intrusion.  On one end of the spectrum is the drug dog sniff.  In our scenario, we’ll say you pack a suitcase, go to the airport and prepare to board a plane.  As you pass through the terminal on your way to your gate, a uniformed officer walks a German Shepherd against the grain of pedestrian traffic.  Nobody is stopped.  Everybody is sniffed.

This type of governmental intrusion is minimal.  The police don’t stop you.  They don’t search your clothes.  Your baggage isn’t opened and you go about your business.

Moving up the spectrum of intrusion, you have things like: Police officers looking into the windows of your vehicle in a public parking lot; A roadblock DUI safety checkpoint that only lasts about 30 seconds of stop time; Police search of the cartilage around your home; Search of the inside of your home; Stop and Frisk search to make sure someone isn’t armed and dangerous; Strip Search to ensure you aren’t hiding contraband; and lastly, and most invasively, the search of a human body inside the human body.

For the most part, it is conceded on both sides of the argument, that the search of a person generally requires individual suspicion that THAT PERSON has committed a crime.  For the purpose of today’s argument, we’ll say that if the person is already in custody, the standard is whether it is reasonable – based on whether the promotion of government interest outweighs the degree to which the search intrudes on a person’s privacy.

Now let’s get down to the recent Supreme Court Ruling.  The case is called “Maryland v. King” and was decided by 5-4 vote on June 3, 2013.  Since there are 9 Supreme Court Justices, that means that this is the most narrow margin by which a case can be decided.  That should tell you something about how heated the debate can be, and how grey this subject can be.

Basically, King was arrested in Maryland.  After he was booked and arraigned a few days later, he was forced to give a buccal swab, pursuant to the Maryland DNA Collection Act.  That means that some officer took what is essentially a big Q-Tip, and ran it across the inside of King’s mouth, in order to collect a sample of his DNA.

Months later, they matched King’s DNA in a central database against a DNA sample taken from a victim in an unsolved rape case.  King was then tried and convicted of rape – then challenged the search procedure of taking his DNA by buccal swab after arraignment.

Some of you at this point are thinking “Well I don’t give a shit whether the police did something wrong – that guy’s a rapist and I’m glad he got punished.” 

Raise your hands if you think Rape is bad and it should be punished.  Ok – all of you?  Good.  Me too.

Now that we’ve all agreed that rape is bad, we can set that aside for a moment and have a legitimate intellectual discussion about the means of governmental intrusion versus privacy interests at stake.  Because if your analysis of government intrusion ends with “crime is bad” then you should go live somewhere else where freedom and privacy aren’t valued, and the police can do anything they’d like to maintain what the government considers to be “order.”  Try Germany around 1940.

The Supreme Court in King upheld the Maryland law regarding DNA collection of people in custody, post-arraignment.  In the opinion, written by Justice Kennedy, the Court called the buccal swab of the inside of a body orifice “negligible.”  Then they went on to say that the search was akin to fingerprinting – which is helpful to identify suspects in custody.

There was a strong dissent to the case, written by Scalia.  For those of you who don’t follow the Supreme Court Of the United States (“SCOTUS” if you’re a law nerd), Justice Scalia is a pretty strict conservative (some of my law nerd friends are smirking right now about that understatement).  And in the dissent, Scalia joins some relatively liberal individuals, including Clinton nominated Justice Ginsburg, and Obama nominated Justices Sotomayor, and Kagan.

Scalia goes on and on about the major difference between DNA collection and matching, and fingerprint analysis.  The difference is pretty huge and Scalia points out how the majority is pretty misleading by saying the 2 are alike.  On one hand, fingerprinting is used primarily for identifying people who are ALREADY suspected of criminal activity.  Often, people who are in custody and need to be identified.  On the other hand, the Maryland law allows the DNA collection for INVESTIGATIVE purposes.  To try to solve crimes, for which there are no suspects.  For example, they did not suspect King of the 2003 rape (for which he was later convicted) when they collected his DNA.

That is a pretty big difference, especially since we’re talking about 2 different government interests.  The first is the interest in identifying someone that police already have reason to suspect of illegal activity.  The second is just broad, investigative purposes.  Normal law enforcement needs.

Scalia said: [t]here is a “closely guarded category of constitutionally permissible suspicionless searches,” (Chandler v. Miller, 520 U. S. 305, 309 (1997) that has never included searches designed to serve “the normal need for law enforcement,” Skinner v. Railway Labor Executives’ Assn., 489 U. S. 602, 619 (1989) (internal quotation marks omitted).

Scalia makes some very good points, but my beef with the ruling is on the flipside of the coin – the privacy interest. 

You know how people use the phrase “You gotta draw the line somewhere.”?  That line, I submit to you, when it comes to extra scrutiny for invasive police searches, is when the police want to go INSIDE your body.  Regardless of where they want to go.

Inside the body is the most private of areas.  It is a place that, no matter where you are, you have the most reasonable expectation of privacy.  Inside you.

The Supreme Court acted like the search was no big deal.  Negligible.

That’s a problem for me.

And let’s take a little detour here.  If the police suspect you of a crime, they can get a warrant to go inside your body.  They can get your blood drawn or a buccal swab done to match your DNA left at a crime scene if they have probable cause to believe you committed a crime.  So I’m not saying that police should never be able to get your DNA.  I’m saying that they shouldn’t be allowed to go inside a person’s body if they don’t have (at the very least) an individualized suspicion that YOU committed a crime that they are investigating.

Going inside your body is not “negligible.”  It is a big deal.  There was a time when the Supreme Court believed that virtually any intrusion into the human body would be considered an invasion of cherished personal security, that is subject to constitutional scrutiny.  That time was in 1968, in Terry v. Ohio.  The strange thing is that the Supreme Court actually QUOTES the above language in the body of the King Opinion, but FAILS to apply it to the buccal swab search which intrudes into an orifice inside your body.

I think the Supreme Court (and Scalia, for that matter) could have spent some more time on the degree of intrusion into the body, and that they most certainly should have given it more respect.  And a higher degree of protection.

The bottom line for me is this:  When you balance the most intrusive of intrusions against the normal need for law enforcement, you should protect the inside of the human body.  That's why Maryland v. King is a bad ruling.

Anyway, some of you have got to be bored to tears by now.  And I’ve got to get some actual work done. 

So if you have questions, hit a brotha up.  My door is always open.  502-618-4949.

Free in Kentucky: How Can DUI be Considered Murder?

Free in Kentucky: How Can DUI be Considered Murder?: I’ve said before that DUIs are like snowflakes.  And I love that about my work.  I’ve done some work in other areas of the law and to me, a...

How Can DUI be Considered Murder?

I’ve said before that DUIs are like snowflakes.  And I love that about my work.  I’ve done some work in other areas of the law and to me, a lot of it is just boring compared to criminal defense.  For example, when I was doing some personal injury work, it just seemed like every time I worked on a “soft tissue injury” rear-end collision, it was the same case.  Over and over.

But DUI is different every time.  That’s why when some people call me and say “Well, my brother/friend/cousin/acquaintance got a DUI and ________ happened to them.”  Usually my response is something like, “They had a different case than you.”  And my new client’s case may be better or worse.

Concerning the levels of seriousness, DUI cases can be as benign or as serious as one can imagine.  A person can be “over-charged” with DUI if they had a beer with dinner and they are stopped at a roadblock.  Maybe a police officer smells alcohol on their breath and they make a decision immediately that the person is DUI.  In that circumstance, my client may not be guilty of any crime whatsoever.

On the other end of that spectrum, DUIs can be extremely serious, depending on the consequences that occur as a result of the intoxicated driving.  A person can even be charged with Murder as a result.

Pursuant to a WLKY report:  “Metro Louisville police said 24-year-old Anthony Smiley struck another car head on in the 7100 block of Manslick Road about 8:30 p.m. Friday.  The coroner's office said the occupant of the second car, 57-year-old Robin Jent, of Louisville, died an hour after the accident.  Smiley is being held at Metro Corrections on charges of DUI and murder.”

At this point it may be appropriate to back up and discuss a broader principle of criminal law.  Assuming the primary function of punishing someone for criminal conduct is to deter others from committing the same conduct, isn’t it appropriate to punish based on the action, and not the consequence of that action?  The conduct of driving at a .3 BAC is the same conduct regardless of whether the driver causes an accident, no?  For the sake of brevity, we’ll continue this conversation on another day, and focus on how and why a person can be charged with Murder based on driving under the influence.

Typically people think of Murder as an intentional action.  The actor pulls a trigger, intending to kill another, and the intended result occurs.  But with DUI, we’ll assume the driver doesn’t intend to harm anyone.  Rather, the intent is simply to get home (or whatever the final destination should be).

How, then, can someone be charged with Murder based on drunk driving?

Under KRS 507.020(b), A person is guilty of Murder when “Including, but not limited to, the operation of a motor vehicle under circumstances manifesting extreme indifference to human life, he wantonly engages in conduct which creates a grave risk of death to another person and thereby causes the death of another person.”

The key language that we’ll look at today is “wantonly” engaging in conduct that creates grave risk of death.  In order to figure out what constitutes wanton behavior, we’ll jump to the definitions of Mental States under KRS 501.020(3).  Under this subsection, Wanton behavior is defined as follows:  “A person acts wantonly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts wantonly with respect thereto.”

Now, I know there’s a lot of what one might consider unnecessarily* superfluous legalese in that definition, so let’s cut through the fluff and get a real definition.  The difference between reckless conduct and wanton conduct is this:  People who are reckless do things without regard to risk involved.  People who are wanton KNOW the risk and they disregard that risk.

Specifically, the risk we’re talking about today is the risk that driving drunk can cause serious or fatal accidents.  And the drunker the driver, the higher the risk.

Here’s the rub:  As a person’s intoxication increases, the risk of hurting someone on the road increases.  Also, as a person’s intoxication increases, the cognitive ability decreases.  Thus, if a person is incredibly drunk (such that they are more dangerous), doesn’t it naturally follow that the likelihood that they can appreciate (and consciously disregard) risk has decreased?

Marinate on that a bit.

Anyway, the Wanton provision of the Murder statute is a way that the Commonwealth can prosecute someone for Murder without the actual INTENT to kill someone.  In legal slang, this is called “Depraved Heart Murder.”

I think that would make a phenomenal movie title, don't you?  I wonder if Ashley Judd and Morgan Freeman are available...

If you have any more questions about DUI, Murder, or any other issues, my door is always open.  You can call me at 502.618.4949.

*See what I did there?  Glad you're paying attention.

To read more about the above referenced local news story: http://www.wlky.com/news/local-news/louisville-news/man-killed-in-iroquois-park-crash/-/9718340/20389160/-/g3k6eaz/-/index.html#ixzz2VAfV3T8v

Free in Kentucky: Dragnet and Beyond: Your Miranda Rights and What T...

Free in Kentucky: Dragnet and Beyond: Your Miranda Rights and What T...: I’ve had a request to write about Miranda Warnings (also called your Miranda Rights) and, looking back on the time that I’ve been blogging...

Dragnet and Beyond: Your Miranda Rights and What They Mean

I’ve had a request to write about Miranda Warnings (also called your Miranda Rights) and, looking back on the time that I’ve been blogging, I have no idea why I haven’t done a post about the Miranda Warnings yet.  It’s an area of law that is very misunderstood by the public and I’d like to clarify the issues for the 3 of you who read this blog.

Recently, Miranda was a hot topic because of the Boston bombing and the detention of suspects therein – people were confused as to why the police wouldn’t have to give Miranda Warnings up front, and why they would want to wait.

Every TV show since Dragnet has taught Americans that police have to read you your rights as soon as you get arrested.  That’s not exactly true.

I suppose it’s prudent to start at the beginning, so let’s talk a little bit about what Miranda is.

Miranda v. Arizona is the case where the “Miranda Warning” rule was created by the United States Supreme Court.  Some laws are made by congress, some laws are made by courts, some laws are made by local governing entities and some are made by international treaty…the list of law origins goes on.  I’m sure there’s a SchoolHouse Rock about it somewhere on YouTube.  Anyway, the law on Miranda Warnings is a creature of caselaw.  That’s what lawyers call it when a law is made by case (because we are not creative).  And Miranda Warnings are named after Miranda v. Arizona, the case that established that particular rule of law (again, because we are not creative).

Basically, the law says that when police take you into custody (for the purpose of this post only, we will say that “custody” is the same as saying “arrested”) the officer has to explain your rights to you before they question you.

So what are your rights?  Well, at a bare minimum, the police should advise a suspect in custody that they have the right to remain silent, anything they say can be used against them in court, they have the right to an attorney, and if they cannot afford an attorney, an attorney will be provided for them.

“But Greg!?”  Says recently arrested individual learning about Miranda Rights over a disreputable internet blog.  “They didn’t read me my rights when I was arrested!  Can you get the case thrown out!?”

The answer is maybe, but not on those facts alone.  The ramification for a failure to read a suspect their Miranda Rights is that any evidence gleaned as a result of custodial interrogation will not be admissible in court.  So, no.  You don’t automatically just go free. 

If the police question you BEFORE they take you into custody (as they frequently do), they do NOT have to read you Miranda Rights.  Let’s say Officer Bob is walking down the street and smells a strange chemical smell coming from an alley.  He walks down the alley and sees a couple of ruffians up to no good.  Officer Bob asks, “What are you two doing back here?”  “Smokin’ Meth!” they reply.  “Well, then – you’re under arrest.”  Officer Bob never reads the boys their Miranda Rights.

In the preceding scenario, Officer Bob didn’t read the boys their Miranda Rights.  But Miranda v. Arizona wouldn’t preclude the statement “Smokin’ Meth!” from coming into evidence because the boys were not in custody at the time of questioning.  In fact, they were free to leave and did not have to speak to the police officer at the time they were questioned.  If they had shut their meth mouths, they may not have gotten arrested at all.

So – If you are 1) In custody, and 2) The police are going to question you, then the police have to read you your Miranda Rights.

These days, the police often go a step further, and have a custodial suspect sign a waiver of their Miranda Rights.  That way they have tangible evidence that the suspect was informed, and either waived or did not waive their right to remain silent/right to counsel.

That about does it for today.  Next time you watch Dragnet, and Friday reads Miranda, you can quote this entire blog post to your friends.  Seriously, nothing will make you look cooler.

If you have any other questions about Miranda Warnings, or your rights in general, you should call me.  502.618.4949, or you can email me at greg@attorneysimms.com.

Free in Kentucky: DUI Diversion: What it Means and Why It's a Good T...

Free in Kentucky: DUI Diversion: What it Means and Why It's a Good T...: Diversion is a beautiful thing.  As far as legal courses of action are concerned, it is the silver medal to the gold of Dismissal.  Or may...

DUI Diversion: What it Means and Why It's a Good Thing.

Diversion is a beautiful thing.  As far as legal courses of action are concerned, it is the silver medal to the gold of Dismissal.  Or maybe more like a gold medal with strings attached.

Let me break it down like this:  Most people are familiar with the term “probation.”  If you plea Guilty to a crime, or you are found Guilty at trial, you can receive jail time.  For a misdemeanor, you can receive up to a year in a county jail.  For felonies, you can receive a year or more in prison.  In order to avoid jail time, if you have a decent lawyer, your lawyer will ask for probation.  In lieu of actually serving jail time, a judge may order the time probated.  Essentially your probation period will be a period of time (usually measured in years) where you have to be good.  If you avoid further offenses, and abide by the conditions of probation, you don’t have to go to actual jail.  And that’s nice.

Diversion is even better than Probation. 

Diversion is a multi-faceted creature that can be used in a number of different ways.  It’s sort of like probation, because there will be a period of time where you have to be good.  And if you don’t get new charges and abide by the conditions of diversion, you can avoid a jail sentence.  But Diversion is better than probation because at the end of the diversionary period, the charge is DISMISSED.  That means you don’t have a conviction.

One of the best reasons to enter into a diversion agreement is that after a dismissal, you can expunge your record quicker than if you took a conviction.  A lot quicker.  Like, 5 years quicker.  And for felonies, it makes all the difference in the world.  Because without successfully completing diversion, the general rule is “Once a Felon, Always a Felon.”  If you successfully complete felony diversion, the plea is set aside, and the case is dismissed.  Unlike other felony cases, you can get the charge expunged from your record (subject to some other qualifications).

In most counties, Diversion is not an option for DUI charges.  However, in Jefferson County, there is a formal diversion program.  If you qualify for the DUI Diversion program, your license will be forfeited for a period of time, you perform some community service, pay about $800 in fines in costs, complete Alcohol Drug Education classes, and attend a Mothers Against Drunk Driving Victim Impact Panel.  Also, and obviously, you can’t get any new charges in the diversion period.  That period is one (1) year.  If you abide by the conditions, and successfully complete diversion, the DUI charge will be dismissed.  Two (2) years after the dismissal, you can have the charge expunged [this is a weird little caveat to the normal rules on time frames for expungement].

You will NOT qualify for diversion if you have an aggravated DUI.  That means if any of the aggravating circumstances listed in KRS 189A are present, you can’t get into the program.  Refusing to submit to a blood, breath, or urine test is NOT an aggravator for a DUI, 1^st offense.  However, refusal WILL prevent you from getting into the diversion program.  There are also time limitations, and other considerations that may prohibit you from entering the program.  For example, a large neck tattoo that says "No Regrets!"

If you have a DUI, you need a lawyer.  Ask your lawyer about whether you might qualify for the diversion program.

Also, if you have any other questions on this subject, please don’t hesitate to call.  502.618.4949.

Greg Simms, Attorney at Law