Monday, June 03, 2013




Because our humble lead scribe Horace Rumpole is in parts unknown and cannot manage to garner broadband service, we post today the latest in the erosion of our beloved Fourth Amendment from SCOTUS.

To be fair, our fellow blogger, DOM, has the post up on the new case and you can go read his post at http://sdfla.blogspot.com/.  It includes a link to the case, but if you're lazy then go here: http://www.supremecourt.gov/opinions/12pdf/12-207_d18e.pdf

The case is Maryland v. King, and it was decided by a decidedly split 5-4 vote.  But, the five and the four are not whom you thought they might be.  Justice Kennedy wrote the opinion and Justice Scalia wrote the Dissent, and boy what a Dissent it was.  Certainly one worth reading.  Of note, Justice Thomas and Justice Scalia did not vote on the same side here. 


Washington, DC (June 3, 2013) – Today, the U.S. Supreme Court ruled in Maryland v. King (12-207) that “When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment.” (at 28) The 5-4 majority opinion of the Court was delivered by Justice Kennedy and joined by Chief Justice Roberts and Justices Thomas, Alito and Breyer. Justice Scalia filed a dissenting opinion joined by Justices Ginsburg, Sotomayor and Kagan.

In his dissent, Scalia wrote:

"The most regrettable aspect of the suspicionless search that occurred here is that it proved to be quite unnecessary. All parties concede that it would have been entirely permissible, as far as the Fourth Amendment is concerned, for Maryland to take a sample of King’s DNA as a consequence of his conviction for second-degree assault. So the ironic result of the Court’s error is this: The only arrestees to whom the outcome here will ever make a difference are those who have been acquitted of the crime of arrest (so that their DNA could not have been taken upon conviction). In other words, this Act manages to burden uniquely the sole group for whom the Fourth Amendment’s protections ought to be most jealously guarded: people who are innocent of the State’s accusations."

And he concluded:

 “ ... 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. I therefore dissent, and hope that today’s incursion upon the Fourth Amendment, like an earlier one, will some day be repudiated.”

And in other news:

Big Game Seven at the AAA tonight between the Miami Heat and the Indiana Pacers.  Nothing like a Game Seven and we wish we could be there but we'll have a front row seat watching on our 60" Samsung.  I'm sure Rumpole will have something to say about the results of this game if the Pacers should manage to pull off the game seven upset.  I'm picking the Heat to win and return to a third straight Finals appearance.


We received an email after the game tonight.  Here is what it said:

Summer is here so enjoy the Heat and the rain.  Look at the bright side; at least the traffic should disappear for about the next ten weeks.



Anonymous said...

Fight the power. Free alex michaels. Spit on them when they take your dna. Make Alex proud.

Anonymous said...

Omg I thought I hated rumpole until I read this swill. Please. I'm ill now.

Anonymous said...

Jersey Woman Claims She Was Mistaken For A Prostitute and Beaten at W South Beach


CAPTAIN said...

4:38 PM. You want to be really ill, just read the opinion.

Rumpole and I love the fan emails. Thanks for reading the Justice Building Blog.

How can anyone hate good ole Horace Rumpole?

Cap Out ...

Anonymous said...

This is Rumpole's intern. I would like the hateful comments and emails to stop. First, many of your suggestions are anatomically impossible and even those that aren't, are not something a normal human being would want to do under any circumstances.

Second- I was told by Rumpole under the strictest of terms not to post any comments that had any sexual content. so please stop trying.

third- I have no authority to change anything on the blog. I am only allowed to post or not post comments. Rumpole should be back tonight. Please save your hateful remarks for him.

Blog Intern.

The Most Token Tom Justice Clarence Thomas said...

Oh no I's never vote against my boss no suh I's love my masser boss Scalia and Bob they let me keep my wife. I don't gives no opinion and they jus as happy as a pig in slop, un hunh.

Now yall folks take care ya hear, I is got to take my shirts to the cleaners and get the stains of my's collars.

The Real Fake Cueto said...

It is I the Macarana Magistracy,

I could not be more thrill to hear that the only other high court ruled in my favor. Of course it is my position that we should go on all Americans job and randomly take DNA samples as all are guilty of some crime, it's just a matter of what. I'd so excited I'm going to speak in my native tongue.

Enhorabuena a mis compañeros jueces

Adios y siempre recuerden mis decisiones son soberanas.

Y me siguen en Twitter en Judge Nebuchadnezzar @ Prick Judge
Y me siguen en Twitter en:

Juniper said...

I say with all sincerity -- bugger all.

Anonymous said...

The Heat are doomed.

Klaatu Barada Nikto

Anonymous said...

Hibbert is a real class act, from a class organization. I am sure he'll be the finals MVP, right Rump?

Anonymous said...


We at Clodhopper Nation want to thank you again for you unending support for our beloved Indiana Pacers. You were the only person I know from Miami who stood by our team throughout the playoffs, even though everybody knew that we had no chance to win a 7 game series against the Heat.
All good things must end, and, after getting pummeled in game 7, we must head back to Indiana for non-basketball pursuits. Because of your stellar support for the Hoosier state, I would like to take this opportunity to invite you to the State Fair in August where we would like you to serve as Grand Marshal for the championship tractor pull, the international cow chip toss contest, and he always popular Cornhole Ball on the last day of the fair.
I won't get to see you until August but I want to give you a theme for your next post on the Heat/Spurs final series--heart and old school teamwork vs. semi-talented modern Hollywood-style mercenaries. The Spurs are like all those teams who you love--the 61 Pirates, the 56 Brooklyn Dodgers, the 72 undefeated Dolphins, and the 1931 Portsmouth Spartans. The Heat are like the bird droppings that cover the roof of he American Airlines Arena and will be lucky to win a single game against the valiant old men on the San Antonio Spurs. I'm sure you can do something with this.

D S said...

Long time since I took Con Law, but wasn't there something about NO SEARCHES WITHOUT PROBABLE CAUSE... and something about a WARRANT ?

Anonymous said...

To 11:28:
I doubt the people in "Clodhopper Nation" really care what someone like you might say about them.

From someone who lived there for 32 years, most of the people in Clodhopper Nation are genuinely friendly and care about others. Quite a contrast to living here the last two decades.

And, it's the '60 Pirates and '55 Dodgers, sports expert.

Anonymous said...

Miami has the Dolphins
The greatest football team
they take the ball from goal like no one's ever seen
they're in the air
they're on the ground
they're always in control
cause when you say Miami
you're talkin super bowl

right? right?

Hey- remember us!
Danny Boy

Orange bowl
Joe Robbie
Hey! Don't forget us!!

Dolphins who?

Anonymous said...

Last comment: f'ing brillant.

Fake Ed Newman said...

The Heat won last night. What say you, Rumpole?

Anonymous said...

Dear Mr. Hibernating Blogger.

Well Horace. You've been very quiet lately. You are a chicken. You wouldn't even go out on a limb like the Captain and make a prediction. If the Pacers would have won last night you would have ripped the Captain and ripped all the Heat fans out there.

I'm sure well hear from you as soon as the Heat drops a game to the Spurs. Instead of giving the Heat credit for being the first team since the Bulls to make three straight finals.

Heat are a class organization with class players. They will beat the Spurs in six games and win back to back Championships.

Heat Fan

Anonymous said...

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone -- the most comprehensive of rights, and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.

– from Justice Brandeis's dissent in Olmstead, June 4, 1928

Anonymous said...

I think you were talking about the 4th amendment? I've heard about that before too.
But I think it's gone the way of the typewriter and film camera.
Kids these days have heard of them, but don't really know what to do with them.

Anonymous said...

DS, The "Con" in Con Law is for Constitution not con artist or con job like what you are and what you do. The Constitution prohibits unreasonable searches. And if you read the case, which I'm sure you'll never do, the holding includes gems like:

"Indeed, in light of the standardized nature of the tests and the minimal discretion vested in those charged with administering the program, there are virtually no facts for a neutral magistrate to evaluate.” Skinner, supra, at 622. Here, the search effected by the buccal swab of respondent falls within the category of cases this Court has analyzed by reference to the proposition that the “touchstone of the Fourth Amendment is reasonableness, not individualized suspicion.” Samson, supra, at 855, n. 4."

"The “routine administrative procedure[s] at a police station house incident to booking and jailing the suspect” derive from different origins and have different constitutional justifications than, say, the search of a place, Illinois v. Lafayette, 462 U.S. 640, 643, 103 S.Ct. 2605, 77 L.Ed.2d 65 (1983); for the search of a place not incident to an arrest depends on the “fair probability that contraband or evidence of a crime will be found in a particular place,” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983). The interests are further different when an individual is formally processed into police custody. Then “the law is in the act of subjecting the body of the accused to its physical dominion.” People v. Chiagles, 237 N.Y. 193, 197, 142 N.E. 583, 584 (1923) (Cardozo, J.). When probable cause exists to remove an individual from the normal channels of society and hold him in legal custody, DNA identification plays a critical role in serving those interests."

"A suspect's criminal history is a critical part of his identity that officers should know when processing him for detention. It is a common occurrence that “[p]eople detained for minor offenses can turn out to be the most devious and dangerous criminals. Hours after the Oklahoma City bombing, Timothy McVeigh was stopped by a state trooper who noticed he was driving without a license plate. Police stopped serial killer Joel Rifkin for the same reason. One of the terrorists involved in the September 11 attacks was stopped and ticketed for speeding just two days before hijacking Flight 93.” Id., at –––– (slip op., at 14) (citations omitted)."

Circle K

Anonymous said...

Circle K. Sounds like you are fine with the idea of "Opening your mouth wide and saying ahhhhh".

Yes the jail personnel have the right to take a photo of you and gather your fingerprints. They can even take your height and weight. These are not intrusive.

Sticking a swab inside your mouth is, and we shouldn't have to be subjected to it.

What happens after that DNA sample hits the master computer database. If my charges are dismissed, no actioned, Nolle prossed, or jury comes back NG, do they remove my DNA sample from the database. NO THEY DON'T

It's total BS and cannot believe both Kennedy and Breyer fell to the majority on this and against the fourth amendment.

Bad case.

Hey Rump, how bout them Heaters. You are starting to imitate your closest friend,


Anonymous said...

Rumpole is out of the country and has limited internet access. Mostly 3g which doesn not allow him on his phone or tablet to publish a new post. I am clearing comments and I would again request the nasty emails to stop. It is not necessary. He will be back soon enough. I am just the low paid employee here.

Blog intern.

Anonymous said...

"A suspect's criminal history is a critical part of his identity that officers should know when processing him for detention"

When Processing him.

How long does it take to process him? Most will be out on bond long before the DNA results even come back.
The purpose of the DNA test isn't to say, Yes, this is really, Jon Q. Doe. It's not to run his name and see if he's wanted for something else. It's an evidence collection technique. Let's see if his DNA matches any open cases we have.

I think it's interesting that we have the right to not open our mouth to say anything that could incriminate us, but they can force us to open our mouths for a swab that could.

Anonymous said...


Many people still shoot film, including many photography students and professional photographers, although the number is still declining.

My bet is that those that shoot film will always outnumber those who believe in the sanctity of the 4th amendment.

Anonymous said...

DS, You still haven't read the case. It is obvious. You get by with your "sound bite" advocacy, that's why you'll always be half-a-lawyer.

11:57 and 12:46, you ask questions that are answered in the case. You both need to read it as well before you get on here and trash it.

Circle K

Claude Erskine Browne said...

South Jersey mom vs. South Beach hookers: the rematch


Times must be tough for South Beach hookers.

So tough, apparently, that they’ve now taken to beating up their competition — or at least that’s what a vacationing South Jersey woman claims in a civil lawsuit filed against the lavish, five-star W Hotel, where she says a gang of high-priced escorts attacked her.

Anna Burgese, the petite wife of a wealthy suburban Philadelphia homebuilder, claims in the federal lawsuit that as many as 10 prostitutes pounced on her in the hotel lobby on Jan. 19. They mistakenly believed that she was encroaching on their turf, according to Miami Beach police.

Instead of helping Burgese catch the attackers, the suit contends that the “prostitute-friendly’’ hotel put the women in a taxi to facilitate their escape.

The W, owned by Starwood Hotels & Resorts, is one of South Beach’s most exclusive and trendiest hotels. Rooms range from $449 to more than $5,000 a night. A spokesman for the hotel chain had no comment, citing the pending litigation.

Prostitution has flourished since the first hotels and tourists arrived on Miami Beach. Wholesome, smartly dressed call girls were a staple in the legendary Poodle Lounge at the Fontainebleau hotel in the 1950s. But over the past decade, Miami Beach’s prostitution rings have taken on a more sophisticated and sinister side, involving sex-trafficking and women from Eastern European countries, known as “B-girls,’’ who fleece deep-pocketed tourists.

“It’s just the nature of the beast. You’re going to have prostitution anywhere that you have money,’’ Miami Beach police spokesman Bobby Hernandez said Monday of the escort trade, which is so notorious that the social media site Yelp even has a category for rating Miami hookers.

Burgese, 34, and her husband, Joseph Burgese, 50, of Medford, N.J., have been patrons of the hotel for years, visiting so often they keep their Rolls Royce parked there, according to their lawyer, Lance Rogers of Philadelphia.

“They’ve spent thousands and thousands of dollars at this hotel,’’ Rogers said. The couple is on a cruise off the coast of Italy and could not be reached.

In the suit, filed last week, Burgese claims that the assault was unprovoked and that the prostitutes threw her face-first against a stone wall in front of hotel employees. Her husband, who was on crutches, had been a few steps ahead of her when the attack began. He fought the women off with his crutches, Rogers said.

Miami Beach police apparently weren’t surprised, Rogers said.

“They told her that the women were hookers who were likely drunk or on drugs and mistakenly thought Anna was a prostitute,’’ the lawyer said.

Anna Burgese, who is 5-foot-1 and 105 pounds, was “tackled” to the ground, and suffered a scrape on her knee and a bloody lip, according to the Miami Beach police report. The report said that the hotel’s security escorted one or more of the culprits outside, where the women caught a cab. Burgese told police that she overheard a hotel employee say that he knew one of the women, but later claimed he could not identify her to investigators.

While there are several surveillance cameras in the hotel’s lobby, Hernandez said Monday that investigators did not view or obtain copies of the video because the case was classified as a simple assault, a crime that is typically not investigated.

Read more here: http://www.miamiherald.com/2013/06/03/3430813/socialite-claims-she-was-attacked.html#storylink=cpy

Anonymous said...

Rumpole WHERE TF are you???? Save us from this....stuff.

Anonymous said...

Even with three consecutive trips to the finals, the Heat, for a good chunk of the series with the Pacers, looked like a team clinging on, with LeBron James at the helm of an aging, fraying cast.

from the NY Times

I'M EATIN said...

I'm Eatin:

A food diary. By Fake Kenny:

At Carbone, they don’t ask if you’ve dined with them before. Even if you haven’t, the answer would still be yes. This is supposed to be the Italian restaurant where you celebrated your birthday before anyone told you that chicken scarpariello isn’t Italian.

It is a fancy red-sauce joint in Greenwich Village as directed by Quentin Tarantino, bringing back the punch-in-the-guts thrills of a genre that everybody else sees as uncultured and a little embarrassing, while exposing the sophistication that was always lurking there. Carbone has a technical prowess that can make you giddy; a lust for excess that can, at times, make you a little queasy; and an instinct for sheer entertainment that makes a lot of other restaurants seem like earnest, unimaginative drones.

There are, in the Tarantino style, fanboy film allusions: the tile floor from “The Godfather,” the narrow passageway into the back dining room that makes you feel like Ray Liotta handshake-tipping his way into the Copacabana.

Nearly the entire menu at Carbone is a quotation, starting with the $50 veal parm, which is larger than some fancy brick-oven pizzas and looks like one, too, with ovals of browned buffalo mozzarella and a bright red, summer-fresh, barely cooked tomato sauce. Served with a fried shaft of bone, it’s a shock-and-awe dish, and the most shocking thing about it is that there is no real revisionism here; it is a veal parm, the way you always hoped it would be.

Anonymous said...

Fake Kenny faked his food diary. Here's the NYT review of Carbone, out today:


D S said...

Circle K,
Sorry, about my Naivety, I thought tis was clear:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Anonymous said...

Oh DS you are naïve. The key word in that amendment is "unreasonable." We are not secure from all searches only unreasonable ones. It is all about the "totality of circumstances".

Lost in this most recent decision is the "scope of the initial seizure". If the charges are such that DNA evidence may aid in the prosecution of the charge, then a search warrant should be secured. If the DNA is being taken solely to establish comparisons for investigation of other "crimes" then the search is a clear intrusion.

Although fingerprints are used investigatively, that is not the primary purpose. A search to verify identification, which sometimes leads to disclosure of additional "wants and warrants" is just that, identification, not investigation and is a legitimate governmental interest which justifies the intrusion.

To compare the taking of DNA upon arrest to taking of DNA upon conviction also should fail. There is a greatly diminished expectation of privacy upon conviction and the identification rationale has merit.

As painful as this is, I agree with Scalia on this one. I think the "conservatives" continue to focus on Terry's "minimal intrusion" analysis instead of Terry's initial scope of the seizure provision, so prominent in other aspects of search and seizure decisions.

The "search incident to a lawful arrest" analysis also should fail. No decision of the SCOTUS goes so far as to permit search to lawful arrest to go beyond the immediate search for weapons or plain view.

Lastly the administrative search justification should not apply. Most administrative searches are for the protection of the governmental authority against false claims against them by disgruntled defendants. They, too, are not primarily investigation.

All in all, the majority sees the opportunity to aid law enforcement in solving crime. This intrusion can have no other purpose. I don't want to hear any of them complain about Terry, Miranda, Katz or other decisions being "social engineering". That is what they have done here.

Anonymous said...

912.......you and I were in the same place until I read the opinion. To me, the most persuasive argument in favor of allowing the swabs is that technology ALREADY is being developed to allow identification in 90 minutes. It seems that the majority views DNA as a more accurate way of identifying people than fingerprinting (which I think we all believe is true) and that it will aid not just in solving crimes, but in establishing identification at booking or immediately thereafter (personally, I think we're a few years away from that, but believe that's also true). Eventually they'll be able to obtain consistent DNA results from skin swabs and that will make the tests even less intrusive. The opinion makes more sense when viewed that way (ie. as a forward looking opinion that takes into account such developments).


PS---keep in mind that this is the same court that ruled against the state/police on the dog sniff issue. Contrary to some of the earlier comments, it's not true that they're giving law enforcement everything law enforcement wants.

Anonymous said...


Good analysis but your point that "There is a greatly diminished expectation of privacy upon conviction and the identification rationale has merit", really makes no sense if the purpose of taking the DNA is to potentially solve an unsolved crime. You are still taking it with no pc for that unsolved crime.

Is it unreasonable, incident to arrest to have a defendant open his mouth and have an officer look inside to see if there is any contraband in the mouth? How about raising the tongue to see if there is contraband underneath it? How about putting a soft fluffy Q Tip inside and rubbing it on the inside of the cheek? No piercing or cutting the skin. That is not unreasonable.

BTW DS, nice copy and paste. You still haven't read the case.

Circle K

Anonymous said...

circle k,
why do you think they look in apresons mouth? For contraband, to make sure that officer is safe.
Not to see if his tongue matches a tongue that was used in another crime.
And convicts give up rights. So even if no pc for additional crime, in our society a conviction has collateral consequences.

Not 9:12 but agree with him.

RFB said...

Come to the Ft Meyers blog and make fun of Rumpole while he's out of town. Plus enter to win valuable cash prizes!!!!

Anonymous said...

9:12 here. BTDT I am still in the same place. The idea that DNA is being used like fingerprints, right now, by anyone, simply to assure identity just is not the case. That is the majority, playing intellectually dishonest games and trying to "stay in front of the technological curve".

The Court clearly considers that DNA will improve police investigations. They mention identification solely as a secondary benefit. Further, they label the intrusion as "negligible" and that it is negligible is of "central importance" to their decision.

Whatever happened to "penetration no matter how slight"? What happens to the defendnt who refuses to open his mouth? Do the police have the right to hold him down and force his mouth open? If he resists, is he now going to be charged with resisting arrest with or without violence? Is it now going to be a separate charge to refuse to give DNA? Is there going to an FBI data bank with DNA which now will be compared by a computer to all other DNA evidence in other cases?

This has far reaching downstream consequences. None of them good for those who beleive in the 4th amendment, which I teach my students is "Void Where Prohibited by Law".