An arrest is a curious thing.  It’s the justification for the government to seize a person physically, for agents to stick their hands into places that would land ordinary people in prison.  It’s sufficient reason put a person in a cell, for a day or two, and deprive him of the ability to go about his routine. 

Yet, the presumption of innocence, a phrase given lip service by judges who may not hold it as dear as their words might suggest, would suggest that more is needed before we do all these unpleasant things to people.  After all, the only thing needed to arrest someone is a cop’s decision to do so, which could be explained by his observation of a violent act, or his desire for some overtime, or his use of power to teach someone a bit too mouthy for his tastes that he can make their life miserable whenever he wants.  The latter is wrong, but there’s no penalty for being wrong. Not really.

But in United States v. Mitchell,  the Third Circuit held otherwise.  From the WSJ Law Blog :

In 2009, Pennsylvania federal judge David Cercone ruled that the collection of DNA from someone not convicted of a crime would constitute an unreasonable search and seizure, in violation of the Fourth Amendment. DNA samples, Cercone reasoned, carry much more private information about a person than a mere fingerprint.

But in an 8-6 ruling, the 3rd Circuit reversed, holding that people arrested have “a diminished expectation of privacy in their identities.” Those privacy interests, the court concluded, were outweighed by the need for law enforcement to correctly identify people who are charged with crimes, determine their criminal history, potentially link them to unsolved crimes and promptly rule out involvement in a crime in cases in which the DNA does not match that found at the scene, the Post-Gazette reports.

The decision relies on two justifications, the “diminished expectation of privacy” of people arrested, and the “need” of law enforcement to obtain and utilize DNA for identification.  These, the court concluded, outweighed privacy.

The reasonable expectation of privacy, the  rule of Katz that has guided Fourth Amendment law since 1967, hasn’t worked out terribly well because it is, by definition, subject to the sensibility of judges.  They decide what we believe to be reasonable.   Dan Solove has  argued strenuously that Katz is a failure, which, while true, is like blaming the gun because the shooter pointed it at you.  Any weapon that leaves discretion in the hands of people inclined to use it poorly is going to turn out to be a bad tool.  Bad, bad tool.

To the extent a person arrested has a diminished expectation of privacy, it’s not a matter of choice, but because the government has thrust it upon him.  The arrested person is an innocent person.  He may be in fact innocent, or by law innocent, but innocent he is until that status changes by conviction.  The only thing that’s happened is that someone, maybe a police officer or maybe some other person, has leveled an accusation against him. 

The accusation by another person doesn’t have any connection to a person saying to himself, sighing, “oh well, I don’t believe that my privacy should remain intact.”  Rather, the person anticipates that he will be questioned, and have fingers stuck into clothing and body parts, because the government has been doing that to people for so long that we are all aware, at least to some extent, of the process.  We know that they don’t ask “may I,” but just do it.  It’s got nothing to do with what our relinquishment of expected privacy, but with law enforcement control being forced upon us.  That we’ve seen it happen in the movies doesn’t mean we like it or accept it, but that we know what they’re going to force us to do.

More importantly, the Third Circuit weighs privacy against the needs of law enforcement.  Balancing tests are a particularly nefarious means of enforcing constitutional rights, as they not only eliminate any potential for absolute rights, but substitute our individual determination of the relative value of our rights for those of judges.  It’s a lot easier to trivialize the rights of another, particularly when contrasted with the needs of system of which one is a part. 

Judges preside over criminal cases, and see the merit of convicting criminals and the need to facilitate law enforcement to achieve that end.  Many people cheer them on, angry about crime and in favor of using every weapon available to put criminals away.  Far fewer people are concerned about the nuanced distinction between criminals and people arrested.  As with the diminished expectation of privacy, they are familiar with innocent until proven guilty.  But it’s all a bunch of words, since they are fully prepared to sacrifice a few (other) innocent people to assure that the guilty get what they deserve.

The problem with DNA is that if it was merely a really good means of identification, and nothing else, it might not prove more troubling than a fingerprint, and perhaps be far more useful given that fingerprints aren’t nearly as good for identification as people see on TV.  But this is a setup.  DNA isn’t used for identification on arrest, which would take far too long and be far too expensive, as the Third Circuit’s decision might suggest.  Rather, it’s purpose is to be placed in a databank so that the government can accumulate DNA from all the people it can.  If it could get away with it, they would collect DNA from every newborn, still pure, just in case.

And of course, the use of DNA goes far beyond the handful mentioned by the court, well into areas of personal privacy that nobody on the court wants to mention.  The government wants this too, but is smart enough not to mention it.

So the Third Circuit, the court that gave us Sam Alito, has ruled that our expectation of privacy is diminished when we, innocent all, come into the clutches of law enforcement.  The Third Circuit has ruled that law enforcement’s need for DNA is more important than our need for privacy.  By doing so, they have diminished our expectation that the court’s rulings demonstrate a concern for constitutional rights, as any right can be balanced away. 

That’s all it takes to lose a right.  As technology advances, courts will balance them away, and our expectations of the legitimacy of judges to serve as the bulwark between the power of the government and the rights given by the Constitution will diminish.  It’s not the test, but the hands into which the test is placed.