Monday, January 10, 2005

To Try to Net Killer, Police Ask a Small Town's Men for DNA

New York Times

Very interesting article on investigative sweeps that target everyone in a community who fit a broad profile - in this case, simply being a man. This is a topic we discussed at length in Criminal Procedure. Many of the residents of Truro want to sue, which is an understandable but likely futile endeavor.

In Brown v City of Oneonta, 221 F 3d 329 (2d Cir 2000), the police knew only that a black person committed the crime at hand, at least according to witness descriptions. The town's population was 2% black and most were college students. The police decided to question every single black student. The Second Circuit found such tactics constitutional because police may make racial classifications based upon available evidence. Moreover, no Fourth Amendment search occurred (thus triggering enhanced protections) because requesting that students answer questions was not a "seizure" within the meaning of the Amendment. Only when the police ordered students to talk to them did a potential seizure occur. This decision is backed up by the DOJ guidelines on racial classifications in criminal investigations - the police can act on specific information on race without more-specific individualized suspicion.

Of course, in the situation described in the article, the scope of the investigation is roughly 50% of the town's population, not 2% (though the raw number of people is similar - 300 blacks in Oneonta, and the town in the article has about 790 men). It is an interesting debate which number matters more - in a practical sense, it is probably only worth it to do protective sweeps where the universe of suspects is below the thousands. However, the percentage theory is a closer fit to our perception of individualized suspicion.

Perhaps the issue is of less significance for Truro, since gender-based classifications receive less scrutiny than race-based classifications. But the whole situation certainly doesn't feel right to those being subjected to the classification, and perhaps gives the men of Truro an insight into the stigmas racial classifications can impose.

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