A Stitch in Haste

Exhibit A:

"If you have nothing to hide, then why not cooperate?"

A very old trap.

So old that it made the cut for the Bill of Rights.

So old that the arguments against it get forgotten sometimes:

In an unusual last-ditch move to find clues to the three-year-old killing of a freelance fashion writer, police investigators are trying to get DNA samples from every man in this Cape Cod hamlet, all 790 or so, or as many as will agree.

Raising concerns among civil libertarians and prompting both resistance and support from men in Truro, the state and local police began collecting the genetic samples last week, visiting delicatessens, the post office and even the town dump to politely ask men to cooperate.
...
Sgt. David Perry of the Truro Police Department and other law enforcement authorities here say that the program is voluntary but that they will pay close attention to those who refuse to provide DNA. "We're trying to find that person who has something to hide," Sergeant Perry said.
...
"They're not very effective and they're certainly not voluntarily," said Barry Steinhardt, director of the technology and liberty project at the American Civil Liberties Union. "It's either give a sample or you're a suspect. It turns the classic American concept of innocent until proven guilty on its head."
...
Craig Hathaway, owner of Dutra's Market, who said he felt he had to allow the police to approach his customers, will not give his DNA.

"If you have nothing to hide, then why not cooperate?"

The ACLU has formally asked law enforcement to stop the practice.

Excellent.

In a related context, an equally old trap is the friendly "Do you mind if I look around?" "May I search the vehicle?" "Is it okay if I just take a quick peek inside your bag?"

Consent is the most powerful tool in law enforcement. Not only because it so fully disarms one's Fourth Amendment rights, but also because the aura behind a consent request is often so casual -- service with a smile from your friendly neighborhood state trooper, TSA representative or FBI agent.

Sometimes I think it's amazing that the Warren Court never crafted a Miranda-type warning for consent solicitations: "You have the right not to consent to this search. If you consent to this search anything found as a result of this search may be used against you in a court of law." Such a warning might have actually been more useful over the years than Miranda ever was. (For details, see Schneckloth v. Bustamonte, 412 U.S. 218 (1973).)

I remember my surprise in reading Caleb Carr's The Alienist when he describes the early days of fingerprinting and the initial reluctance of the judiciary to admit it as evidence at trial. Now we recognize the immense evidentiary power of DNA. Shall we not also recognize the immense danger of abusing DNA, not only in the laboratory but also in the courtroom?

Bravo to the men standing up to this statist tactic. Bravo to the ACLU for challenging it. Shame on the Truro Police Department for invoking a intrusive, coercive and constitutionally questionable practice.

Exhibit B:

Okay, now I'm really angry --

Metro [District of Columbia] police officers are using new behavioral profiling techniques as they patrol subway stations, identifying suspicious riders and pulling them aside for questioning.

The officers are targeting people who avoid eye contact, loiter or appear to be looking around transit stations more than other passengers, officials said. Anyone identified as suspicious will be stopped and questioned about what they are doing and where they are going.
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A similar observation regime at Boston's Logan International Airport has been challenged by the American Civil Liberties Union, which filed a lawsuit on behalf of an African American ACLU employee who said he was stopped and questioned by police for no reason after arriving on a flight from the West Coast.
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"You can't use this very subjective sense of who's suspicious as a substitute for what the law would otherwise require...such as a basis for suspicion that someone is engaged in criminal conduct," said John Reinstein, legal director for the ACLU of Massachusetts.

So now "no eye contact" constitutes probable cause to detain someone?

It used to be "You fit the profile." Now apparently it's "You don't fit the profile. You're weird." Combine that with "May I ask you a few questions?" "May I take a quick peek inside your bag?"

Because, of course, "If you have nothing to hide, then why not cooperate?"

God help anyone who doesn't go to law school these days.

UPDATE: The blawg May It Please the Court has started an open thread on the Truro DNA situation. Chime in with your thoughts there as well as here.