Maryland v. King

We'll hear argument next this morning in case

12 207, Marilyn v.

King.

Hey everyone, this is Leon from Prologue Projects.

On this episode of 5-4, the hosts are discussing Marilyn v.

King.

In this 2013 case, a man was arrested for one crime, his DNA was collected, and then it led to a match for another crime.

In his petition to the court, the man argued that running his DNA was an unconstitutional infringement of the Fourth Amendment prohibition against unreasonable searches.

The court was unconvinced.

The justices rule it's okay to take the DNA of people arrested who are not yet convicted of a crime.

In a 5-4 narrow decision, the Supreme Court ruled the taking of an arrestee's DNA does not constitute an unreasonable search.

The argument from the court was that collecting DNA is part of the process of identifying an arrestee, even when that person has already already been identified.

This is 5-4, a podcast about how much the Supreme Court sucks.

Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have canceled our civil liberties like a cowardly university canceling commencement.

I am Peter, and I'm here with Michael.

Hey, everybody.

Rhiannon, a little too busy freeing Palestine to be with us today.

Actually, I think she's just sleepy, but that's part of the work.

You got to recharge the batteries.

Yeah.

Yeah.

Yeah.

Who needs to do your job with your best friends

when you could just be napping?

All right.

Cut that, Rich, but then send it to Rhea.

All right.

Today's case, Maryland v.

King.

This is a case from 2013 about the Fourth Amendment.

The Fourth Amendment, of course, protects against unreasonable searches and seizures.

Usually, these cases involve police searching someone's house or car

or patting you down or something.

But this case involves the seizure of your DNA, specifically through a cheek swab.

Maryland has a law allowing for police to collect DNA samples from anyone arrested for a violent crime.

Alonzo King was arrested for assault after being identified by a witness, had his cheek swabbed, and then the DNA was used to incriminate him in a case from a few years prior.

He tried to suppress the use of the DNA evidence under the Fourth Amendment, saying that the cheek swab was unconstitutional because it was essentially a search conducted with no suspicion.

But the Supreme Court, in a five to four decision written by Anthony Kennedy, says no.

It's fine.

All good.

It's actually okay.

Michael, you're a background background guy for the day.

Yeah, that's right.

No rehannon.

I'm going to keep it brief because actually it's pretty straightforward.

There's not a lot to understand here.

So in 2008, as Peter said, Maryland passes a law allowing for the collection of DNA samples from arrestees of certain crimes of violence or burglary.

This is one of many laws around the country allowing for such DNA collection, and it's actually one of the more stringent ones.

The majority of states do not require it to be a crime of violence, for example.

In 2009, Alonzo King was arrested on suspicion of pointing a shotgun at a group of people.

Illegal.

Yep, that is menacing innocent bystanders.

One of the people standing in the group ID'd King as the assailant, and he was charged with first and second degree assault.

At the time of his arrest, pursuant to the new Maryland law, in addition to his fingerprints and his photograph being taken, law enforcement took a cheek swab for DNA analysis.

As per the law requirements, they held the sample until King was arraigned three days later.

After that, it made its way to the State Police Forensic Science Division two weeks later and was mailed to a private lab for testing two months after that.

Another two months after that, four months after arrest, his DNA sample sample was sent to the FBI to be run in their CODIS database, where it was compared to DNA samples taken from unsolved crimes.

In the meantime, King pled down to the second degree assault, not the first degree.

He entered an Alford plea, which doesn't require an admission of guilt.

But the FBI got a hit on his sample from an unsolved rape.

from 2003,

which led to King's prosecution and conviction for that rape.

He challenged the collection and testing of the DNA sample as an unreasonable search under the Fourth Amendment.

It made its way through the Maryland courts until we arrived here at the Supreme Court.

Also, I wanted to add like a little warning.

This case is sort of tangentially related to sexual violence, and we are going to talk a little bit about that.

in our discussion section because obviously that's you know a serious thing in solving those crimes is a societal societal good that we don't take lightly.

Right.

But that doesn't change the fact that this is a crap opinion.

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

The Fourth Amendment protects against unreasonable searches and seizures, and King's claim here is very simple.

He says, all right, you arrest me on an assault charge.

You take my DNA.

Then you run that DNA against a database of unsolved crimes.

Right.

But you didn't have any reason to believe that I I was guilty of any of those crimes.

So this is what we call in the biz a suspicionless search, which should be unconstitutional.

Anthony Kennedy writes the majority here.

And what he says is basically, look, the Fourth Amendment isn't about suspicion.

It doesn't matter that there wasn't any suspicion.

The Fourth Amendment is about reasonableness.

And that means you weigh the need of the government against the invasion of privacy.

It's a balancing test.

So he starts to do the balancing test analysis.

He says, on one hand, the government needs, quote, a safe and accurate way to process and identify the persons and possessions they must take into custody.

He points out that police need to know the criminal history and potential dangerousness of the arrestee.

It helps with bail determinations and so forth.

He compares it to photographing and fingerprinting an arrested suspect and like other searches that police conduct when someone is first arrested.

Now, before we go on, it's very important to understand what he's doing here.

Everyone on the court knows that it's generally illegal to search someone for evidence of a crime without any suspicion that they committed the crime.

So what Kennedy is trying to do is say, well, the DNA search is not searching for evidence of a crime.

It's just trying to identify the person that they've arrested.

Now, there are a couple of things here that just don't really make much sense.

First, I don't think that this fits the definition of identifying a person, right?

Not at all.

Like back to that little timeline I gave you where they didn't even send the sample to their forensics lab until after he was arraigned.

Right.

So what?

They're arraigning a guy they haven't identified yet?

It's nonsense.

He's saying that like you get the DNA test back and then you know if they've committed another crime and then you like know more information about them and that's part of identifying them.

But that's not what identifying means.

No, not at all.

You already have like their name and address.

You have their fingerprints, right?

All of that comes through the usual processing.

The DNA test is not about identifying them.

You already know their identity.

It's about trying to connect them to some random, unsolved crimes that you have no reason to suspect that they committed.

Right.

So Kennedy says it's helpful for bail determinations and assessing dangerousness, but that's just not what Maryland is doing.

Yeah.

Right.

Like you pointed out, they don't even send the sample off until the arraignment, which is like your initial hearing.

Where you get bail.

Right.

For the listeners, like, remember, under Maryland law, they can't even release the sample to like state forensics until the hearing where bail is set.

So, Kennedy saying this will be helpful for bail determinations makes no sense unless he thinks this works like snapping your finger.

It's physically impossible.

Yeah, it's impossible.

It takes weeks to run DNA.

It's nonsense.

Even if it took hours, it would be physically impossible.

Right.

It'd have to be instantaneous.

It'd have to be like they're doing it at the bail hearing and they like release it.

And it's like, boom, we got it.

It's, it's so stupid.

And then on top of that, in this case, it took four months before the sample came back with a DNA match.

So it's not being used for any of this shit.

It's being used for one purpose, and that's to implicitly accuse the suspect of totally unrelated crimes.

That has nothing to do with identifying someone.

And moreover, as the dissent points out, Maryland actually gives the reason that they conduct DNA testing in the law itself.

And they specifically say that it's for investigating crimes.

So Anthony Kennedy just ignores that and then like makes up his own reason in order to make this law constitutional.

Right.

Also the comparison to mug shots and fingerprinting.

Yeah.

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

Like only some fucking like 90 year old dipshit could look at DNA testing and be like, oh, it's sort of like taking a picture when you think about it yeah it's taking a picture of your biology

kennedy is like okay well we already compare mugshots to sketch artist depictions and we show mugshots to witnesses right which is true but the difference is that those are being used to investigate the crime that the person has been arrested for right

that's right it's not the same thing as running those photographs through like a database database of like closed camera television or whatever the fuck.

Same thing with fingerprinting.

When cops take your fingerprint, they use it to check that you are who you say you are.

They don't run it against a database of unidentified fingerprints from crime scenes, or at least they didn't until this case.

I don't know, I don't know if cops are doing that now.

So Kennedy is saying, well, DNA testing.

It's useful to police for all of these reasons, but we still need to weigh it against the intrusion into the person's privacy.

And he says that this is pretty minimal.

It's a cheek swab.

So it's not nothing but minor intrusion, I suppose.

He also points out that people who are arrested under the law and past precedent have a diminished expectation of privacy generally, right?

Which is why, like, when you get arrested, you can expect to get patted down.

They're going to search your pockets, all that stuff.

You have a diminished expectation of privacy.

So Kennedy then weighs these things against each other, right?

It's like, hmm, which one's bigger?

On one hand, the police have this need for the DNA.

On the other hand, the test is not very intrusive.

So this is fine.

This is constitutional.

We're good.

So like, overall,

I think the majority here is getting away with a pretty aggressive sleight of hand, if you can even call it that.

Like the Fourth Amendment generally means that the cops cannot conduct a search without suspicion of a crime.

The majority gets around that by basically saying, Well, that's not what's happening here.

Right.

But that is what's happening here.

Absolutely.

Everyone knows it.

Maryland law explicitly says it, but I guess five members of the court wish it wasn't true.

So here we are.

Yeah.

And that's it.

Yeah.

Five members of the court are just like, well, this is good for policing.

And we like policing.

Right.

And so we have to retroactively find a way to make this constitutional.

That's it.

Right.

So the dissent is authored by Antonin Scalia.

He's joined by three liberals, Kagan, Sodomayor, and Ginsburg.

RBG.

Yeah.

Yeah.

The ladies.

You know, this is a bad case that went the other way because our old friend Stephen Breyer

joined the majority.

State capacity liberal Stephen Breyer.

Law and order lib Stephen Breyer just loves himself to police.

Bucking Dalt.

That fucking.

And like, just so people know, Anthony and Scalia has a libertarian streak in the Fourth Amendment context.

This is one of the main ways in which he distinguishes himself from Clarence Thomas, for example, who's just a police state fascist, right?

Scalia is the type of guy who has always felt that this sort of thing.

is a little bit unseemly.

And so you'll see him joining the libs from time to time on these cases, which would have been more impactful if it weren't for Breyer consistently switching sides yep yep

absolutely so the dissent is pretty good because scalia is usually pretty good when everybody else he's uh writing with are libs because one that usually means he's right on the merits and two i think they sort of trim his sails and rein in a lot of his worst impulses

And he does a pretty good job of just dissecting the majority opinion and like really taking apart, especially, I think, the idea that this is important for identification.

He's like meticulously goes through the timeline of the DNA sample, like transmission and working through bureaucracy and testing and all that to illustrate how absurd to think that this is being used for identification.

The guy's already like been arraigned, agreed to please, like demanded a jury trial.

Like all sorts of stuff is happening while the DNA is being tested.

It's clearly not being used used for identification purposes because proceedings are going forward right the criminal proceedings are happening right and he also makes the point that like the databases that these go into have names and

and like social security numbers and stuff attached to them right like the key feature is that the sample is to someone who's been identified and then you're comparing it to unidentified samples right like that's right

that's that's what's going on here like this isn't identification in any you know, reasonable sense.

But I guess what Kennedy is trying to say.

Isn't everything identification?

Yeah, right.

Part of identification is just learning more about this person.

Right.

The thing about that is, as they say, it proves too much, right?

Like, you could also learn more about someone by just searching their house and going through all their shit and opening their email and reading all their old email.

Like, yeah, you'd learn more about them and you might get a better idea of how dangerous they are, but that shit requires a warrant it requires probable cause and suspicion and you know scalia is very good on these points he even has like handy little charts it's a dissent with charts comparing dna samples to fingerprints to illustrate how different the two are and there was like a quote at the end there's a little paragraph at the end that i thought is worth reading He says, today's judgment will, to be sure, have the beneficial effect of solving more crimes.

Then again, so would the taking of DNA samples from anyone who flies on an airplane.

Surely the TSA needs to know the quote-unquote identity of the flying public, applies for a driver's license or attends a public school.

Perhaps the construction of such a genetic panopticon is wise, but I doubt that the proud men who wrote the Charter of Our Liberties would have been so eager to open their mouths for royal inspection.

It's pretty good.

He grounds it all also in like historical, like the founders really didn't like general warrants and that stuff's correct.

And the idea of just running someone's DNA in a database against every DNA sample from any unsolved crime around the country definitely feels like a general warrant.

That feels appropriate, but I just don't care too much.

Yeah, me neither.

Although, so people know a general warrant was basically this old-timey concept where rather than a specific warrant where like you need to be like, judge, I want a warrant to go into that house to investigate this crime.

You could get a more general warrant.

Judge, I want the authority to investigate this crime or that crime.

And then you could just do whatever with that warrant, right?

Right.

That's sort of like why the Fourth Amendment is written the way it is, where there is a specified warrant requirement that requires probable cause and all that stuff.

Because they were concerned about these specific types of warrants and this specific type of policing.

Right.

I I also want to point out when this oral argument started,

the Maryland lawyers thought it would be a smart idea to start off by talking about how effective this has been, this practice, and like how many crimes they have solved using this practice.

And he was immediately cut off by Scalia, who was like, well, yeah, if you conducted a ton of unreasonable searches and seizures, I bet your clearance rates would go up.

So just right off the bat, just owned at oral argument with like the most obvious sort of logic, which, by the way, hasn't stopped people from making these arguments.

Like, well, this is a great way to solve crime.

It's like, no shit.

Yeah, yeah, exactly.

No shit.

Like, no one doubts that violating people's rights is an effective way to solve certain crimes in certain regards.

The point is that we have those rights anyway, right?

Right.

The point is that the violation of those rights is itself not legal.

Right.

We don't want to be dismissive of the severity of the crime alleged here, right?

This is a sexual assault case.

This is a serious case.

I think like the broad point

is that if you allow the government to just conduct unlimited searches without warrants of your person, of your property, et cetera, they will from time to time turn up a heinous crime, right?

That does not justify the vast intrusion upon our civil liberties.

And if it did, there would be no Fourth Amendment.

You would not have civil liberties.

It would give the police license to do whatever the fuck they want because sometimes they find a horrible crime.

Right.

And this sort of DNA testing is particularly useful for sexual assault and murders as well.

But I think that's where it's sort of in the public consciousness understood as a particularly socially valuable thing.

And so I just want to note, like the cops suck at solving crimes, right?

Like the data is very clear on this.

And if you've ever interacted with them, they often do not seem to care about solving crimes.

And if there's one crime they don't take seriously at all writ large, it's sexual violence.

Right.

This is a policy solution that's downstream of the bigger problem, right?

The bigger problem is cops not taking solving crimes seriously and not taking sexual violence seriously.

And then wanting to just violate everybody's civil rights to make their job easier.

Oh, hey, well, we can just leave these rape kits on the shelf and not worry about them.

And maybe in a few years, we'll get a hit and we get to clear a case.

It's not good for anyone, this approach.

Right.

I mean, if you want cops to solve sexual assault cases.

The solution is not random DNA tests of people who get arrested in Maryland or whatever, right?

The solution is maybe starting to clear those rape kit backlogs that they don't give a shit about.

The solution is taking survivors who come in and try to report sexual assault seriously, which they don't do, right?

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

So I sort of like bristle a little bit at the implication that they're just trying to solve crimes here.

No, they're not.

All right, this feels like a good time for a break.

All right, we are back.

There are some subtle ways that this majority opinion is very disingenuous to the point where like it reads almost like bad faith.

We already pointed out that Kennedy uses this bastardized definition of identifying someone and that he like completely ignores the express purpose of the Maryland law.

But there's also some other weird little jurisprudential nerd bullshit going on here.

When you're arrested, the police can legally search you for weapons, et cetera, right?

That is called a search incident to arrest.

But the thing is that there's already a Supreme Court case saying that searches incident to arrest are limited to searches for weapons and evidence related to the crime.

So Kennedy can't just say, well, this is a search incident to arrest because the DNA test is a search for evidence related to other crimes,

not this crime.

So There's also a doctrine called special need, which basically says you can conduct searches even without suspicion of a crime if there's a special need to do so.

That's very case by case, but the quintessential example is drunk driving checkpoints.

They pull you over without suspicion just to make sure you're not drunk.

But Kennedy admits that this doctrine doesn't apply to the cheek swabs either.

So it's not a search incident to arrest.

It's not a special need.

What exactly is it, right?

Why is this legal?

Kennedy never really explains this.

He never really clearly states the doctrine that he's basing his decision on.

Right.

And Scalia mentions like a third sort of category of suspicionless searches that they have given the okay to.

And those are specifically when the searches are not related to solving crime and police enforcement.

Right.

And for example, drug testing public school teachers or railroad workers, right, for regulatory reasons, because we're concerned about safety on the railroads or the bus drivers and shit like that.

But this is not searching for evidence of crime, which is the exact opposite of what's happening here, which is very explicitly and specifically searching for evidence of criminal activity.

Right.

So the fact that Kennedy like sort of almost deftly dodges around all this shit

makes it very obvious that he sort of knows what he's doing, right?

It's not just a sloppy opinion or something where you're like, what's the doctrine here?

He's very carefully refusing to admit exactly what like the doctrine that he's supposedly applying is or like what the rule is even.

And I don't know, I think that shows like an intentionality that I didn't entirely pick up on when I first read it.

But then once you sort of dig a little deeper, do some research into the cases, you're like, well, he obviously knew what he was doing here.

He knew that he was like fucking around a little bit, that he was just sort of making this rule like just so, so that he could say this was constitutional, even though under like every known analysis, it's clearly unconstitutional.

Right.

That's right.

I think you can tell that this is very intentional when you, when you think about like the bigger context here of DNA swabs.

Like I mentioned up top, Maryland laws actually was one of the more protective.

It was limited to violent crimes.

And King took a guilty plea here and he didn't admit culpability, but he did plead guilty to assault.

So there were like a lot of off-ramps for the court here to

rule narrowly that only in some circumstances a DNA is appropriate, like for arrest for violent crimes or after somebody has pled guilty.

And so this was sort of like an inevitable discovery sort of thing in the Fourth Amendment context.

Instead, this is like explicitly written to make sure that all these other laws, these much broader laws, are constitutional too, right?

They've got their eye on California and all the other states that are swabbing everyone they arrest and saying, yeah, we don't even want to hear challenges about that.

So it's pretty obviously like disingenuously written.

And I think another hint that this is disingenuous is, you know, Kennedy loves to talk about dignity, you know, personal dignity.

And it's a big feature of his jurisprudence, actually.

And in this, he just sort of shrugs it off as like, well, look, this isn't any more undignified than like the normal indignity of arrest, essentially.

And I'm like,

I don't know, man.

Like

someone sticking something in your mouth or up your nose or drawing your blood

does actually seem like a little more of an imposition on dignity.

Not to mention that like, yeah, okay, maybe clipping someone's nails and hair isn't that undignified And maybe a cheek swab isn't that much of an impingement on your personal dignity.

Just one vial of blood and on and on.

But you add all that up.

Right.

You know, and all of a sudden it's a big imposition on your dignity.

You're being poked and prodded and treated like a fucking lab rat.

One thing I hate about these cases is that they're always like, well, it's just like a little cheek swab or whatever, but that's not the...

full extent of the indignity.

Part of the indignity is that they are taking that DNA and implicitly accusing you of potentially having committed another crime with no reason to believe that you did.

That's the indignity.

It's the fact that they are being like, we arrested you for something.

So maybe you committed other crimes and we're going to like go find out, even though we have no reason to believe that.

That's part of the indignity.

And that's part of like the violation of your privacy.

But the court never fucking talks about it like that.

I don't really know why the court sort of refuses to accept that that is, in fact, a bad thing, that it is a bad thing to just implicitly be like, well, you might have committed a crime.

Yeah, like the underlying logic of this is anybody who's arrested, anybody who's arrested for this law, anybody who's arrested for a violent crime, but for other laws, like California's law at the time, it's just literally anybody who's arrested is automatically suspect for legitimately any crime for which they have a DNA sample on sale across the country.

Legitimate.

That's it.

Like you've been arrested for any reason.

We believe we have good reason to think you committed some other crimes

here or elsewhere in the past.

That's the logic behind this.

And yeah, that is actually quite a hit on someone's dignity, especially when you know how easily some populations get arrested.

Right.

Right.

I mean, if the standard for you can have your DNA taken and put into a database where it will rest forever and be checked against any crime that ever has or ever will have DNA collected from it.

The standard for that is just you've been arrested.

That's a pretty low standard because it's very easy to get arrested.

Like

that's not a hard thing.

Re got arrested for protesting and Michael for serial assault or whatever.

For carrying a beer in public and for

disorderly conduct at a homecoming bonfire where I ran up and I touched the bonfire.

I slapped the bonfire.

Two out of three hosts of the podcast have been arrested.

And our total arrests average out to one arrest per host.

So Scalia talks about the violation of like the body in a way that I don't quite vibe with.

Like I, you know, when we were prepping, I think I mentioned it feels like almost a little bit religious.

Right.

I don't quite view it like that, but I do think

it makes sense to draw a bit of a line.

You know, putting a q-tip into your mouth or whatever,

I sort of agree, not a huge deal, but there is a real risk of slippery slope here, right?

Like, what's a little blood draw, right?

What's a slightly bigger blood draw, right?

What's being strip searched?

All of these things like are sort of violations of your physical person.

And I don't think we should just let them fly under the radar so readily as if they are nothing.

I think it's important to draw a firm line.

And someone saying, hey, I don't think the cops should be able to place something into your body.

Right.

I don't think that's a crazy line to draw.

And, you know, the Fourth Amendment offers good guidance here.

The right of the people to be secure in their persons.

Right.

First in line before houses, papers, and effects against unreasonable searches and seizures shall not be violated.

Like, yeah, right there.

Why not?

That's as good a place as any to draw the line.

They can't just treat you like a little lab rat.

And I do think a lot of this is technology sort of obscuring what's happening here, right?

If a cop had to take like a little printout of your DNA genetic markers, you know, and compare it visually to other DNA samples and like go down to the evidence locker and specifically request cases to look at one-on-one to compare them, I think it would be very quickly apparent and obviously salient what was happening here, which is they were saying, oh, we think this person might have been involved in this other crime.

But because this is all done digitally in a database where we just like input the sample and then press a button and say, CODIS, are there any hits?

And then CODIS says yes or no, that makes it seem like what's happening here is.

a small intrusion and not a big deal.

But that's not it at all.

Like what's happening here is technology has streamlined that process of visual comparison of your genetic material, right?

Your genome.

But just because it's streamlined doesn't mean it's any different from someone going through their evidence locker and visually comparing them one at a time.

No, I mean, the implication here is that if you're arrested, cops can take your DNA sample and just one by one compare it to the DNA samples in tens of thousands of other cases, right?

And I think you're right that if that process involved like, I don't know, five minutes of work each,

I mean, yes, it would be impossible, but would a court really approve of that?

Right.

Of like the police department making all of those comparisons?

No, I think they would see it for what it was.

And yeah, I think the technology just sort of obscures how much of a violation this actually is and obscures the obvious intent of the cops here, which is clearly not to identify this guy, right?

It's to see if he committed other crimes.

Right.

The key feature of this is that they've already identified him and now they want to use that identification to see if it matches up with like evidence from other crimes.

Yeah, I mean, it's so easy to talk yourself in circles with this case, but like the bottom line for me is the Fourth Amendment says that you cannot conduct an unreasonable search, right?

What's more unreasonable than a search that you have no evidence for?

Like they don't have any reason to believe that this man committed any of those other crimes.

Right.

And yet they are running his DNA to see if he committed them.

That's got to be a fucking violation of the Fourth Amendment.

If that's not, how could that be a reasonable search?

What is your reason for doing it?

Other than the fact that you might just get a random hit every now and then.

That has to be the crux of the Fourth Amendment.

But here we are acting like that doesn't even fucking matter.

Anthony Kennedy basically being like, yeah, suspicion, that's not really part of the Fourth Amendment.

Right.

Yes, it is, dude.

It's got to be the whole fucking thing.

Yeah, just like the very premise that like, no, it's reasonableness and suspicion.

of a crime doesn't play a role at all in the reasonableness determination.

Taking that logic to the extreme is like, yeah, well, we could just, as long as it's minimally intrusive, we could just take everybody's DNA.

Yeah, why not?

Why not?

I mean, we're talking about technological advances, right?

Kennedy is saying you don't need suspicion to conduct a search as a general matter.

Instead, it's all about balancing the government's interests with the invasion of privacy.

So you could imagine a theoretical invasion of privacy that's small enough.

that anyone could be searched, right?

Like, so let's imagine that there's a machine one day that can analyze the DNA of someone just by looking at them.

Right.

You point it at them and it has their DNA.

No cheek swab, nothing.

Takes your DNA and then runs it across a database.

Under Kennedy's rubric, that's fine.

And you could just blast that machine at everyone.

You could just be running that against random crowds of people because there's no invasion of privacy.

So it's reasonable.

Totally fine.

I mean, that can't fucking be what the test is.

No.

I don't think that that's what any actual sane person thinks the Fourth Amendment allows.

You need to have some fucking suspicion of a crime.

It's like the most obvious fundamental feature of the Fourth Amendment.

Yeah.

It drives me fucking insane, even having to talk about this.

If the Fourth Amendment doesn't prevent the sort of establishment of a genetic police state, essentially,

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

Like if it doesn't prevent this sort of massive database and generalized searching, searching, then it doesn't do anything at all.

Like, I don't even know how to like say it anymore than that.

Right.

Like it's.

At one point, the majority is like, FYI, like this would not apply to like invasive surgeries.

Right.

And Scalia is like, well, like the fact that you even had to clarify that

is more damning than anything I could do.

Right.

And it's true because when you remove suspicion from the equation, all of a sudden, if the government need to do something or the utility to the government of doing something is large enough, they can infringe on your privacy very freely.

And I don't think that any person thinks that that's how the police should work.

That like, well, if it's really useful for us, then yeah, we can violate your rights.

No, that's not.

That's like the opposite of what the Fourth Amendment should mean.

This case fucking sucks, man.

Dude, this case blows ass.

Fucking Briar, man.

Fucking Briar.

What a fucking loser.

You know, he gets sucked in by a balancing test.

Yeah.

He sees a balancing test and gets very, very erect.

Ooh, I like that.

Like, Clarence Thomas literally does not give a shit about the Fourth Amendment.

So this makes sense.

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

Like, you know, the Maryland's lawyer gets up there and Thomas is like saluting.

And, you know, Alita, whatever.

Same basic deal.

But Briar, come on, man.

You got, what the fuck do you think the Fourth Amendment is?

What do you think it is?

Like, I understand these like, you know, pseudo-fascist justices don't give a shit.

But if you are even remotely liberal-minded, I don't know how you let this slip past you.

Yeah, it's 2013, too, at this point.

We've had a decade of war and terror.

Yeah.

How do you not know at that point about like the dangers of like indulging the government's surveillance whims?

Right.

Right.

Like, how fucking up your own ass do you have to be?

And I guess so far up your own ass that like in 2023 or whatever, you have to be like, wait, there are still habeas cases for GitBooks.

Right.

Right.

Like, or whatever it was.

Like

there's an element in the majority, and maybe I'm inferring too much, but there's an element in the majority of being like, this is the miracle of technology.

Like, yeah, yeah, it's making us so much safer.

This is great.

Right.

Right.

Like, what a cool opportunity.

It's like, have you ever fucking watched a science fiction movie?

Like, I was gonna say these are people who have never

breyer at the very least have never actually like absorbed and understood the moral of like any work of speculative fiction

at all like at all

kennedy and breyer are watching like iRobot or whatever and yeah definitely not reading it.

So I'm using watching very specifically.

But they're watching iRobot and they're like, next time we got to program the robots better.

That's the lesson.

Ryer's like, big brothers are nice.

I love my brother.

They take care of you.

They watch out for you.

They protect you from the bullies.

I love big brothers.

God, what a bunch of fucking schmucks.

This is such a good example of how fucking run down the Fourth Amendment is.

We're like, this case doesn't get that much attention outside of academic circles.

But the idea that the Supreme Court could just hand down a ruling being like, yeah, you don't need any suspicion to support a Fourth Amendment search.

To just check your DNA against tens of thousands, if not millions of samples across the country.

God.

Kennedy, what a fucking loser.

All right.

Well, unfortunately, we couldn't have Rhian to explain to us whether...

she would have appreciated or hated a cheek swab or what when she was arrested.

She did tell us, however, that she was not swabbed.

Yeah.

She said they were too overwhelmed by the volume of arrests.

Which is good.

All right.

Next week, Arizona v.

Navajo Nation case from not too long ago about water rights for Native tribes.

We'll do that, of course, unless Donald Trump gets convicted, in which case, maybe we'll do that instead.

A big everything you need to know about Donald Trump being a felon.

Yeah.

And then, of course, as always, if Donald Trump passes away of natural causes, we will do a special episode on that too.

Correct.

And,

oh, yeah.

If you want to see 5-4 live this summer,

we will be at the Hamilton in D.C.

on July 12th.

Tickets for that will be live in the next couple of days.

And we will be at the Bell House in Brooklyn on July 15th.

Tickets are available now.

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Bye, everybody.

524 is presented by Prologue Projects.

Rachel Ward is our producer.

Leon Nafok and Andrew Parsons provide editorial support.

And our researcher is Jonathan DeBruin.

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I'm just imagining the bail hearings turning into like Jerry Springer, like,

oh, we're running the DNA.

Did we get a match?

Did we get a match?

You are not the perp.

Sorry.

I'm sorry.

I just had that.

Now I have this image in like a wheel of crime.