The ink wasn't even dry yet...

Oh, it didn't take long now, did it?

Not even two weeks after the US Supreme Court said it was okay for Maryland to take DNA samples from  people arrested for serious crimes, the Pennsylvania Senate voted in favor of a bill that will allow the police to take DNA samples from everyone arrested for a felony or a misdemeanor requiring registration as a sex offender.

Of course police and prosecutors think the bill is a great idea. It's no different than fingerprinting a suspect upon booking him into jail. It isn't an invasive procedure. And it will allow the state to obtain, without warrant and without a showing of probable cause, evidence of a crime for which a person hasn't been charged.

And that's the distinction that a whole lot of folks just don't grasp. When a person is booked into jail the police fingerprint him and run the prints through a computer database to ensure that he person being booked into jail is the person they meant to book into jail. It is simply a tool for identifying the person in custody.

But when we allow the state to swab the inside of an arrestee's cheek we aren't doing it for the purpose of identifying the man in custody. DNA samples are entered into a database that includes samples from unknown persons associated with crime scenes.

While the purpose of fingerprinting a person is to compare his prints to the prints in the database to confirm his identity (if he's ever been fingerprinted before); the purpose of the DNA swab is to run a known person's DNA sample against a database of unknown "donors." The unknown samples came from crime scenes and victims.

What the police and prosecutors want to be able to do is solve cold (and old) cases with evidence obtained from someone who was not arrested for the offense. While the police may have had probable cause to arrest him on some other charge, there was no show of probable cause to believe the arrestee committed the prior crime.

And yet, just because someone finds themselves in police custody, it doesn't follow that he suddenly loses his right against unreasonable search and seizure. The courts have long defined unreasonable as warrantless or lacking a showing of probable cause.

There is a vast difference between identification and the obtaining of evidence in a cold case. But if you were to listen to the debate you might think that it's all no big deal. It's just a swab, they say. But it's more than a swab. The Supreme Court knew if was more than a swab - but, as happens too many times, if the Court had ruled against the state, well, that would mean that someone got away with a pretty nasty crime. And, despite the fact our criminal (in)justice system is supposed to be concerned with process, too many times our courts are more interested in the outcome of cases.

It is that misguided interest in outcomes that has led to some of the most tortured legal logic in which judges turn cartwheels in order to explain how come an act doesn't amount to a search or seizure. We are left with a Fourth Amendment jurisprudence that is nothing more than a patchwork quilt of outcome-oriented decisions made with very little thought for our protection against unreasonable search and seizure.

H/T Stan Weinberg