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GEORGE MASON UNIVERSITY SCHOOL OF LAW2016 LAW JOURNAL TRANSFER WRITE-ON

COMPETITION

GEORGE MASON LAW REVIEWCIVIL RIGHTS LAW JOURNAL

JOURNAL OF LAW, ECONOMICS & POLICYJOURNAL OF INTERNATIONAL COMMERCIAL LAW

NATIONAL SECURITY LAW JOURNAL

2016 Transfer Write-On Competition

The following are the instructions for the 2016 Write-On Competition for GEORGE MASON LAW REVIEW (GMLR), CIVIL RIGHTS LAW JOURNAL (CRLJ), JOURNAL OF LAW, ECONOMICS & POLICY (JLEP), JOURNAL OF INTERNATIONAL COMMERCIAL LAW (JICL), and NATIONAL SECURITY LAW JOURNAL (NSLJ). Unless otherwise noted, the following instructions apply to all five journals. This packet represents the final word on all matters pertaining to the Write-On Competition and supersedes anything you may have heard either at an information session or from a member of any journal. In particular, please note that all submissions must be hand-delivered, electronically submitted, or postmarked by August 3, 2016. Hand deliveries must be made in the Records Office (3rd Floor of Hazel Hall) and/or submitted electronically by no later than 5:00 pm EDT.

For those participating in the Write-On Competition who wish to submit to journals requiring hard copy submissions, exemption for hard copy submission may be granted on a case by case basis for extenuating circumstances (i.e. being out of the country during the Competition). Those seeking exemption from submitting hard copies must email the contact listed in each journal’s submission requirements by 5:00 pm EDT on July 27, 2016. Exemptions will not be granted for any requests received after that time.

The Write-On packet is prepared and managed by GEORGE MASON LAW REVIEW. Please direct all questions regarding the 2016 Write-On Competition to GEORGE MASON LAW REVIEW’S Senior Notes Editor, Stacey Harlow, at [email protected]. DO NOT send any submissions to Stacey, as this would compromise blind grading. For electronic submissions, please see the journal-specific instructions that follow.

If you have questions unrelated to the Write-On Competition, please direct them to the appropriate journal:

GEORGE MASON LAW REVIEW: Katie Smithgall, [email protected]

CIVIL RIGHTS LAW JOURNAL: Rhonda Pasto, [email protected]

JOURNAL OF LAW, ECONOMICS & POLICY: Blake Browning, [email protected]

JOURNAL OF INT’L COM. LAW: Tanya Secor, Editor-in-Chief [email protected]

NATIONAL SECURITY LAW JOURNAL: Alexandra Diaz, Executive [email protected]

2016 WRITE-ON COMPETITION INSTRUCTIONS

I. TOPIC

To participate in the competition, you must write a Comment (as defined below in Section III) on the sources included in this packet.

II. CLOSED RESEARCH PROJECT

The Write-On is a closed research project. Not all the materials included in the packet may be applicable to your analysis—you must decide what is relevant. You do not have to use all of the sources and you do not have to use any specific number of the sources. YOU MAY NOT CONDUCT ANY OUTSIDE RESEARCH, AND YOU ARE LIMITED TO THE MATERIALS CONTAINED IN THIS PACKET. The materials in this packet have been noticeably altered, and you may only use the sources as they appear in this packet (i.e., do not look up the listed sources on LexisNexis, Westlaw, or any other research tool, including Google). If you are found to violate this requirement, your entry will be automatically disqualified, and you will no longer be eligible for candidate membership with any journal. This restriction is for your benefit. It allows you to spend your time reading and writing rather than researching the issues.

Similar to LRWA rules, you may not discuss this project with other law students, law school faculty, attorneys, or anyone who has legal training. However, friends or family members who have no legal training and are not law students, law school faculty, or attorneys may proofread your Comment. Please be aware that the GMUSL Honor Code governs the Write-On Competition.

III. COMMENT: DEFINITION AND TOPIC DISCUSSION

Unlike a Casenote that examines one case in particular, a Comment surveys a specific, narrow area of the law. For this Write-On Competition, your Comment should generally focus on concerns surrounding state and local regulation involving DNA profiling, federalism, and how court decisions have shaped the area of law. This topic may encompass a variety of issues, so you have leeway to focus on one or more specific issues. We are not looking for an exhaustive analysis of this topic, as that would not be possible to achieve within the page limit. We do, however, expect a thorough legal analysis of whichever issue you choose within the broader topic.

IV. FORMAT

1. You must use proper Bluebook (20th edition) law review form1 for citations (hard copy or digital copy).

2. Your Comment must not exceed twelve (12) pages of typed, double-spaced text, including footnotes.

3. Pages must be numbered (centered at the bottom of each page).4. The font must be 12-point Times New Roman.5. Top, bottom, left, and right margins must be one inch.6. Footnotes must be single-spaced, in 10-point Times New Roman font.

V. ORGANIZATION

Your Comment should conform as nearly as possible to Comments published in the GEORGE MASON LAW REVIEW. You may look at Comments in these publications without violating the closed-research requirements, but only for the purpose of determining proper format and style. In addition, please use the following framework:

A. Title

At the top of the first page, you must have an appropriate title.

B. Introduction

Your introduction should introduce the issue(s) you will discuss, briefly summarize how courts have treated the issue(s), and summarize any conclusions you have reached in your Comment. Your introduction should also provide a “road map” for the reader of the different sections of your Comment.

C. Background & Discussion

This section should trace the development of the area of law under discussion. Your discussion should briefly describe the courts’ approach to key issues in these cases and should juxtapose the arguments of the parties. The purpose is not to write a detailed analysis of the relevant cases but to give the reader enough knowledge to appreciate your discussion of these cases in your analysis section.

1 Please note that citations in law review articles differ from citations in court memoranda. For example, you should cite to authority in this Write-On by using footnotes instead of citation sentences or intratextual citations. Additionally, law review citations use slightly different italicization rules than court memoranda citations. We recommend that you review student Comments on the GEORGE MASON LAW REVIEW website to ensure you conform to these rules.

D. Legal Analysis

This part of the Comment is the most important part of your submission. You should set forth your reasoning in detail. What we are looking for is well-reasoned legal analysis. You should focus on factors such as case holdings, consistencies or discrepancies among holdings, future consistent application of the law, etc. As you organize your analysis, you may wish to consider one or more of the following questions:

1. Does compulsory DNA profiling of arrestees under the DNA Act constitute unreasonable search and seizure under the 4th Amendment?

2. How should courts balance government interests against individual privacy rights?3. Should courts be considering this issue under a totality of the circumstances

approach or a special needs analysis? Is there an alternative analytic framework that would work?

4. Should juveniles be given different legal treatment than adults under the 4th amendment?

5. Can police take a DNA sample incident to any arrest or only certain types?6. Does the status of the individual whose DNA is being taken matter (e.g. arrestee,

convict, parolee, etc.)? 7. What role could expungement play?

A successful piece will assess the sources listed in this packet and determine how they

relate to one another. There is no formula for a successful write-on submission; however, you should aim to approach the topic succinctly and creatively. You should focus on the persuasiveness of your argument, conformance with formatting used in typical Comments, writing style, grammar, punctuation, and the proper use of citations. You need not use every source listed in this packet. Likewise, you need not avoid any particular source.

VI. BLUEBOOKING EXERCISE

In addition to writing a short Comment, write-on candidates must complete a brief Bluebooking Exercise to demonstrate their competence with Bluebook (20th ed.) rules. Please cut and paste the text as provided in the Bluebooking Exercise into a separate Word document and correct the footnotes using proper Bluebook format. Additionally, below each footnote, please describe the changes you made.

For Example:

FN 1 United States v. Moussaoui, 382 F.3d 453 at 454 (4th Cir. 2004).

Your Corrected FN1 United States v. Moussaoui, 382 F.3d 453, 454 (4th Cir. 2004).

List of Changes You Made

Removed improper italicization per BB Rule 10. Corrected pin citation form per BB Rule 3.2(a).

You should not use the Track Changes function in Word. DO NOT check the authority of footnotes for accuracy or support, or check prior or subsequent history. This is a formatting exercise and should be based solely on your knowledge and the Bluebook rules. Remember that the Honor Code governs the Write-On Competition, and using LexisNexis or Westlaw to look up any of the cases or articles in the Bluebooking Exercise or the use of any software or website (excluding the digital copy of the Bluebook) to correct the citation is against the rules of the competition. If you need additional information in order to properly correct a footnote, simply make a note explaining the information that you need. Please include this exercise in your electronic submission and in the packet with your Comment, grade release form, and contact sheet.

2016 WRITE-ON COMPETITION QUALIFICATIONS AND SUBMISSION INSTRUCTIONS

I. QUALIFICATIONS

A. George Mason Law Review

First year students (1Ds & 1Es) and second year evening students (2Es) are eligible to apply for membership on the GEORGE MASON LAW REVIEW. To be eligible, students must at a minimum have a cumulative grade point average equivalent to the class mean, as determined by the GMUSL Records Office at the end of the Spring 2016 semester.

The GEORGE MASON LAW REVIEW editorial board will review each submission. There is neither a minimum nor a maximum number of positions available to students competing in the Write-On Competition, and the number of offers extended will depend on the quality of Write-On submissions. GEORGE MASON LAW REVIEW encourages all students to participate in the Write-On Competition. Students selected for candidate membership will be contacted after all Spring 2016 grades are posted.

B. Civil Rights Law Journal

First year students (1Ds & 1Es), second year students (2Ds & 2Es) writing on for the first time, and third year evening students (3Es) graduating next May or later, are eligible to apply for membership on the CIVIL RIGHTS LAW JOURNAL. To be eligible, students must have a minimum cumulative grade point average of 2.75, as determined by the GMUSL Records Office at the end of the 2016 Spring Semester.

The CIVIL RIGHTS LAW JOURNAL editorial board will review each submission. There is neither a minimum nor a maximum number of positions available to students competing in the Write-On Competition. The CIVIL RIGHTS LAW JOURNAL encourages all students to participate in the Write-On Competition. Students selected for candidate membership will be contacted after all Spring 2016 grades are posted.

C. Journal of Law, Economics & Policy

All students applying for membership on the JOURNAL OF LAW, ECONOMICS & POLICY must be first year students (1Ds & 1Es) or second year evening students (2Es). JLEP requires all applicants to be in good academic standing.

The JOURNAL OF LAW, ECONOMICS & POLICY editorial board will review each submission. There is neither a minimum nor a maximum number of positions available to students competing in the Write-On Competition. The JOURNAL OF LAW, ECONOMICS & POLICY encourages all students to participate in the Write-On competition. Students selected for candidate membership will be contacted before August 6th, 2016.

D. Journal of International Commercial Law

All students applying for membership on the JOURNAL OF INTERNATIONAL COMMERCIAL LAW must have at least one full academic semester remaining in law school. Accordingly, the JOURNAL OF INTERNATIONAL COMMERCIAL LAW will review submissions from first year students (1Ds & 1Es), second year students (2Ds & 2Es), and third year evening students (3Es). The JOURNAL OF INTERNATIONAL COMMERCIAL LAW requires all applicants to be in good academic standing (at least a 2.33 GPA pursuant to Academic Regulation 3-7), as determined by the GMUSL Records Office at the end of the 2016 Spring Semester.

The JOURNAL OF INTERNATIONAL COMMERCIAL LAW editorial board will review each submission. There is neither a minimum nor a maximum number of positions available to students competing in the Write-On Competition. The JOURNAL OF INTERNATIONAL COMMERCIAL LAW encourages all eligible students to participate in the Write-On Competition. Students selected for candidate membership will be contacted after all Spring 2016 grades are posted.

E. National Security Law Journal

All students applying for membership on the NATIONAL SECURITY LAW JOURNAL must have at least one full academic year remaining in law school. Accordingly, the NATIONAL SECURITY LAW JOURNAL will review submissions from all first-year students (1Ds & 1Es), all second year students (2Ds & 2Es), and third year evening students (3Es) graduating in the following May or beyond. To be eligible, students must have a minimum cumulative grade point average of 2.50, as determined by the GMUSL Records Office at the end of the 2016 Spring Semester.

The NATIONAL SECURITY LAW JOURNAL editorial board will review each submission. There is neither a minimum nor a maximum number of positions available to students competing in the Write-On Competition. The NATIONAL SECURITY LAW JOURNAL encourages all eligible students to participate in the Write-On Competition. Students selected for candidate membership will be contacted after all Spring 2016 grades are posted.

II. SUBMISSION PACKAGE CONTENTS

Prepare a separate submission package for each journal in accordance with the following directions.

A. George Mason Law Review

Inside a sealed envelope marked GEORGE MASON LAW REVIEW, please submit the following:

1. 4 copies of your Comment; 2. 1 copy of the Bluebooking Exercise; and3. A separate, unmarked, sealed envelope that includes:

a. A signed GEORGE MASON LAW REVIEW grade release form; and

b. A contact information sheet.

Students must also e-mail an electronic copy of their Comment and Bluebooking Exercise to [email protected] by August 3, 2016, at 5:00 pm EDT as indicated on the submission instructions below. If an electronic copy is not received prior to the deadline, the student’s submission will not be reviewed. Please enter “Write-On Competition Submission” in the subject line. Please identify yourself in the body of the e-mail, as it will be directed to a member of GEORGE MASON LAW REVIEW who is not judging the write-on submissions. Compliance with this deadline will be determined by the time the e-mail is sent.

Students necessitating an exemption from hard copy submission due to extenuating circumstances must notify Law Review’s Managing Editor, Tiffany Bates, at [email protected] by 5:00 pm EDT on July 27, 2016. Please enter “Write-On Competition Exemption Request” in the subject line. Please identify yourself in the body of the email and provide the reason for your exemption request. A response to your request will be sent within 24 hours of your request.

PLEASE NOTE: For hard copy submissions, a separate, unmarked, sealed envelope with your grade release form and contact information sheet for each submission should be placed in the same envelope as your submission. DO NOT mail your grade release forms and contact information sheets separately. Each submission requiring a paper submission should be mailed in one envelope.

B. Civil Rights Law Journal

Inside a sealed envelope marked CIVIL RIGHTS LAW JOURNAL, please submit the following:

1. 4 copies of your Comment;2. 1 copy of the Bluebooking Exercise; and3. A separate, unmarked, sealed envelope that includes:

a. A signed CIVIL RIGHTS LAW JOURNAL grade release form;b. A contact information sheet; c. A resume (optional); andd. A statement of interest (required for 2Ds and 3Es, optional for

all others; please see instructions later in this packet).

Students must also e-mail an electronic copy of their Comment and Bluebooking Exercise to [email protected] by August 3, 2016, at 5:00 pm EDT. If an electronic copy is not received prior to the deadline, the student’s submission will not be reviewed. Please enter “Write-on Competition Submission” in the subject line. Please identify yourself in the body of the e-mail, as it will be directed to a member of the CIVIL RIGHTS LAW JOURNAL who is not judging the write-on submissions. Compliance with this deadline will be determined by the time the e-mail is sent.

Students requesting an exemption from hard copy submission due to extenuating circumstances must email CRLJ’s Managing Editor, Andrew Howard, at [email protected] by 5:00 pm EDT on July 27th, 2016. Please enter “Write-On Competition Exemption Request” in the subject line. Please identify yourself in the body of the email and provide the reason for your exemption request. A response to your request will be sent within 24 hours of your request.

C. Journal of Law, Economics & Policy

Through electronic submission to the JOURNAL OF LAW, ECONOMICS & POLICY, please submit the following:

1. 1 copy of your Comment;2. 1 copy of the Bluebooking Exercise;3. 1 copy of your resume, with your name and GPA redacted;4. 1 copy of a contact information sheet; and5. 1 copy of a statement of interest (optional).

Students must e-mail an electronic copy of their Comment, Bluebooking Exercise, Resume, contact information sheet, and an optional statement of interest to [email protected] by August 3, 2016, by 5:00 pm EDT. If an electronic copy is not received prior to the deadline, the student’s submission will not be reviewed. Please enter “Write-on Competition Submission” in the subject line. Please identify yourself in the body of the e-mail, as it will be directed to a member of the JOURNAL OF LAW, ECONOMICS & POLICY who is not judging the write-on submissions. Compliance with this deadline will be determined by the time the e-mail is sent.

The JOURNAL OF LAW, ECONOMICS & POLICY will evaluate each application under a totality-of-circumstances review. You have the option to submit a 1-page statement of interest explaining why you are interested in the JOURNAL OF LAW, ECONOMICS & POLICY specifically. The statement of interest is entirely optional and designed to give the Board any additional information that you feel is relevant that is not previously expressed in your resume.

D. Journal of International Commercial Law

Students must e-mail an electronic copy of the following documents to [email protected] by August 3, 2016 at 5:00 pm EDT:

1. Your Comment;2. The Bluebooking Exercise;3. A signed JOURNAL OF INTERNATIONAL COMMERCIAL LAW grade

release form*;4. A contact information sheet;5. Your résumé with your name redacted (optional); and

6. Your Statement of Interest (optional).

*The Records Office requires a handwritten signature. Please scan and e-mail your signed grade release form or submit a hard copy to the Records Office inside a sealed envelope marked JOURNAL OF INTERNATIONAL COMMERCIAL LAW. (Previous students have successfully used the free app CamScanner to easily PDF their grade release forms from their phone.)

Please enter “Write-on Competition Submission” in the subject line and identify yourself in the body of the e-mail, as it will be directed to a member of the JOURNAL OF INTERNATIONAL COMMERCIAL LAW who is not judging the write-on submissions. If these materials are not received prior to the deadline, the student’s submission will not be reviewed. Compliance with this deadline will be determined by the time the e-mail is sent.

E. National Security Law Journal

Students must submit an electronic copy of the following Write-On submission materials by e-mail to [email protected] by August 3, 2016 at 5:00 pm EDT. The NATIONAL SECURITY LAW JOURNAL is not accepting hard copy submissions of these materials. The e-mail must include:

1. Your Comment;2. Your Bluebooking Exercise;3. A signed NATIONAL SECURITY LAW JOURNAL grade release form*;4. Your contact information sheet;5. Your statement of interest (optional); and6. Your résumé with your name redacted (optional).

Your Comment, Bluebooking Exercise, Statement of Interest, Resume, and Contact Information sheet must each be submitted in Microsoft Office Word format (.doc or .docx).

If an electronic copy of your submission is not received prior to the August 3, 2016, 5:00 pm EDT deadline, your submission will not be reviewed. In your submission e-mail, please enter “Write-On Competition Submission” in the subject line. Please identify yourself in the body of the e-mail, as it will be directed to a member of the NATIONAL SECURITY LAW JOURNAL who is not judging the Write-On submissions. Compliance with the Write-On deadline will be determined by the time the e-mail is sent.

*The Records Office requires a handwritten signature for the grade release form. Please scan and e-mail your signed grade release form with your Write-on submission, or submit a hard copy to the Records Office inside a sealed envelope marked NATIONAL SECURITY LAW JOURNAL.

III. ANONYMITY

mailto:[email protected]

To ensure anonymity, you MUST NOT IDENTIFY YOURSELF ANYWHERE ON YOUR COMMENT OR BLUEBOOKING EXERCISE. If you do so, you will be disqualified. Your contact information and grade release form will be used to identify your submission. Any submission that does not include a grade release form and summer contact information form will not be reviewed.

IV. SUBMISSION DUE DATE AND HARD COPY INSTRUCTIONS

All submissions are due on FRIDAY , AUGUST 3, 2016 . In addition to the electronic submissions, students may either hand deliver their submissions by 5:00 pm EDT on August 3, 2016, or submit them by mail, postmarked by August 3, 2016.

Hand Delivery

Students who choose to hand deliver their submissions must drop them off in the Records Office at the law school by 5:00 p.m. EDT on August 3, 2016. Students must be careful not to leave any identifying information on their submissions.

Mail Submissions

Students who choose to mail their submissions must postmark them by August 3, 2016. Please mail a separate submission to each journal to which you are applying. Mail your submissions to:

(Insert journal name here)Write-on CompetitionGeorge Mason University School of Law3301 N. Fairfax DriveArlington, Virginia 22201

GEORGE MASON LAW REVIEWGRADE RELEASE FORM

Student Name: ______________________________________

GMU Identification #: _________________________________

I authorize the George Mason University School of Law to release my cumulative grade point average and class rank to GEORGE MASON LAW REVIEW.

Signature: ___________________________________________

Date: ______________________

FOR RECORDS OFFICE USE ONLY

This student’s GPA is ________.This student’s class rank is ________.

CIVIL RIGHTS LAW JOURNALGRADE RELEASE FORM

Student Name: ______________________________________


I authorize the George Mason University School of Law to release my cumulative grade point average and class rank to the CIVIL RIGHTS LAW JOURNAL.

Signature: ___________________________________________

Date: ______________________



JOURNAL OF INTERNATIONAL COMMERCIAL LAWGRADE RELEASE FORM

Student Name: ______________________________________


I authorize the George Mason University School of Law to release my cumulative grade point average and class rank to the JOURNAL OF INTERNATIONAL COMMERCIAL LAW.

Signature: ___________________________________________

Date: ______________________



NATIONAL SECURITY LAW JOURNALGRADE RELEASE FORM

Student Name: ______________________________________


I authorize the George Mason University School of Law to release my cumulative grade point average and class rank to the NATIONAL SECURITY LAW JOURNAL.

Signature: ___________________________________________

Date: ______________________



SUMMER 2016 CONTACT INFORMATION SHEET

Student Name: ______________________________________

Summer Address: ______________________________________

______________________________________

Summer Phone Number: (Day) ____________________________ (Evening) _________________________

E-mail Address: __________________________________

Journals will extend offers in early to mid-August. Please provide any additional contact information necessary to ensure that we can contact you during that period.

If you will be unavailable in early to mid-August, please provide us with any information you can as to when you will return and how to contact you at that time. PLEASE NOTE- this will not preclude you from receiving journal offers.

CIVIL RIGHTS LAW JOURNAL

Statement of Interest(Required for 2Ds & 3Es, optional for others)

Please tell us why you are interested in joining the CIVIL RIGHTS LAW JOURNAL. For 2D and 3E students, please also tell us why you have not previously completed the write-on competition.

The purpose of the statement of interest is to give students an opportunity to provide additional information for the board to consider when making selections. Your statement should not exceed

200 words.

JOURNAL OF LAW, ECONOMICS & POLICY

Optional Statement of Interest

Please tell us why you’re interested in joining the JOURNAL OF LAW, ECONOMICS & POLICY. This portion of the application is optional and no negative inferences will be drawn if you elect not to write a statement of interest. The purpose of the statement of interest is to give students an opportunity to provide additional information for the board to consider when making selections. Your statement can include any information about yourself that you feel is not adequately expressed by your resume and/or any information about why you are interested in JLEP specifically and what all you feel you would bring to the journal. Please keep your statement to one page, double-spaced.

JOURNAL OF INTERNATIONAL COMMERCIAL LAW


Please tell us why you’re interested in joining the JOURNAL OF INTERNATIONAL COMMERCIAL LAW and what you anticipate contributing to JICL. This portion of the application is optional. No points will be deducted for failure to submit an answer nor will points be added for submitting an answer. The purpose of the statement of interest is to give students an opportunity to provide additional information for the board to consider when making selections. Your statement should not exceed 200 words.

NATIONAL SECURITY LAW JOURNAL


Please tell us about your interests in the NATIONAL SECURITY LAW JOURNAL. This portion of the NSLJ application is optional, and you will not be penalized if you choose not to submit a response. However, this is an opportunity for you to discuss your past experiences; your interest, if any, in national security law; and any skills or qualities that you might bring to NSLJ as a Candidate Member. Your response can help distinguish you as a potential Candidate Member and will be taken into consideration when extending offers.

Please limit your statement to 250 words or less. Your statement should be double-spaced in 12-point Times New Roman Font.

LIST OF SOURCES FOR THE 2016 TRANSFER WRITE-ON COMPETITION

Please note that many of the sources below are edited. Please do not look up these sources to read the portions not included in the Write-On packet.

Please also note that the sources below may not be cited correctly. Please consult the Bluebook for proper citations and formatting.

PRIMARY SOURCES:

4th Amendment of the United States Constitution

Schmerber v. California, 384 U.S. 757 (1966)

Missouri v. McNeely, 133 S. Ct. 1552 (2013)

U.S. v. Kincade, 379 F.3d 813 (2004)

Johnson v. Quander, 370 F.Supp.2d 79 (D.C. 2005)

Anderson v. Commonwealth of Virginia, 274 Va. 469 (VA 2007)

U.S. v. Mitchell, 652 F.3d 387 (3rd Circuit 2011)

Mario W. v. Kaipio, 230 Ariz. 122 (AZ 2012)

Fern v. State, 27 A.2d 549 (2011)

42 U.S.C. § 14135

42 U.S.C. § 14132

SECONDARY SOURCES:

Brief of Petitioner, North Dakota v. Fern, No. 12-103, 2011 WL 6672183

Eiler, Note, Arrested Development: Reforming the Federal All-Arrestee DNA Collection Statute to Comply with the Fourth Amendment, 79 G.W. L. REV. 1201 (2011)

Aimes, FAULTY FOUNDATIONS: HOW THE FALSE ANALOGY TO ROUTINE FINGERPRINTING UNDERMINES THE ARGUMENT FOR ARRESTEE DNA SAMPLING, 17 Wm. & Mary Bill Rts. J. 475

CODIS and NDIS FAQ Sheet

Affidavit of Probable Cause for Arrest Without a Warrant

NOTE: This is a closed research project. All of the sources that you should use are included in this packet. No outside research is allowed.

You may only cite to the above listed sources. However, if you wish to cite a source that is explained or quoted within the packet, please format the citation similar to one of the following examples:

Johnson v. Quander, 370 F.Supp.2d 79, 85-86 (2005) (quoting United States v. Knights, 534 U.S. 112 (2001)

Johnson v. Quander, 370 F.Supp.2d 79, 85-86 (2005) (citing United States v. Knights, 534 U.S. 112 (2001)

Amendment IV. Search and Seizure, USCA CONST Amend. IV-Search and Seizure

United States Code Annotated Constitution of the United StatesAnnotatedAmendment IV. Searches and Seizures (Refs & Annos)

Amendment IV: Search and Seizure

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.

U.S.C.A. Const. Amend. IV-Search and Seizure, USCA CONST Amend. IV-Search and SeizureCurrent through P.L. 112-209 approved 12-18-12End of Document © 2013 Thomson Reuters. No claim to original U.S. Government Works.

<http://www.fbi.gov/about-us/lab/biometric-analysis/codis/codis-and-ndis-fact-sheet>(Last visited 4/5/13, 4pm)

Frequently Asked Questions (FAQs) on the CODIS Programand the National DNA Index System

Please note that these questions and responses refer specifically to the National DNA Index System; state DNA databases operate in accordance with the applicable state law and questions concerning the operation of a particular state DNA database should be directed to that state.

CODIS

Q: What is CODIS? A: CODIS is the acronym for the “Combined DNA Index System” and is the generic term used to describe the FBI’s program of support for criminal justice DNA databases as well as the software used to run these databases. The National DNA Index System or NDIS is considered one part of CODIS, the national level, containing the DNA profiles contributed by federal, state, and local participating forensic laboratories.

CODIS DNA Databases

Q: How do these DNA databases using CODIS work? A: For example, in the case of a sexual assault where an evidence kit is collected from the victim, a DNA profile of the suspected perpetrator is developed from the swabs in the kit. The forensic unknown profile attributed to the suspected perpetrator is searched against their state database of convicted offender and arrestee profiles (contained within the Convicted Offender and Arrestee Indices, if that state is authorized to collect and database DNA samples from arrestees). If there is a candidate match in the Convicted Offender or Arrestee Index, the laboratory will go through procedures to confirm the match and, if confirmed, will obtain the identity of the suspected perpetrator. The DNA profile from the evidence is also searched against the state’s database of crime scene DNA profiles called the Forensic Index. If there is a candidate match in the Forensic Index, the laboratory goes through the confirmation procedures and, if confirmed, the match will have linked two or more crimes together. The law enforcement agencies involved in these cases are then able to share the information obtained on each of the cases and possibly develop additional leads.

Q: What happens after there is a hit in the DNA database? A: CODIS was designed to compare a target DNA record against the DNA records contained in the database. Once a match is identified by the CODIS software, the laboratories involved in the match exchange information to verify the match and establish coordination between their two agencies. The match of the forensic DNA record against the DNA record in the database may be used to establish probable cause to obtain an evidentiary DNA sample from the suspect. The law enforcement agency can use this documentation to obtain a court order authorizing the collection of a known biological reference sample from the offender. The

casework laboratory can then perform a DNA analysis on the known biological sample so that this analysis can be presented as evidence in court.

Q: How do laboratories count CODIS hits?A: The procedure used for counting hits gives credit to those laboratories involved in analyzing and entering the relevant DNA records into CODIS. CODIS hits are tracked as either an offender hit (where the identity of a potential suspect is generated) or as a forensic hit (where the DNA profiles obtained from two or more crimes scenes are linked but the source of these profiles remains unknown). These hits are counted at the state and national levels. CODIS was established by Congress to assist in providing investigative leads for law enforcement in cases where no suspect has yet been identified, therefore a CODIS hit provides new investigative information on these cases. The hits are reported as “Investigations Aided” thus enabling the FBI to measure the effectiveness of both the CODIS software and National DNA Index System.

Q: Do laboratories track conviction rates based on the CODIS hit?A: Laboratories that participate in the National DNA Index System are not required to track local or state conviction rates based on CODIS hits. As discussed above, CODIS was designed to assist law enforcement by providing potential investigative information in those cases in which crime scene evidence has yielded a DNA profile but no suspect has been identified. Once the hit information is provided to law enforcement, neither the FBI nor the local laboratory is typically notified as to the resolution of the case that the investigation aided.

Q: Why do laboratories only send out the hit notifications to the law enforcement contributor?A: A law enforcement agency sends the crime scene evidence to the forensic DNA laboratory for analysis and production of a DNA record. At the time of the hit, there may not be an open or active investigation or other judicial proceeding and therefore, the submitting law enforcement agency becomes the laboratory’s point of contact for hit notification.

Q: What DNA information is stored in these databases?A: The DNA profile also known as a DNA type is stored in the database. For Forensic STR DNA analysis, the DNA profile consists of one or two alleles at the 13 CODIS Core Loci.

Q: Is any personal information relating to the convicted offenders, arrestees or detainees stored in these DNA databases?A: No names or other personal identifiers of the offenders, arrestees, or detainees are stored using the CODIS software. Only the following information is stored and can be searched at the national level:

(1) The DNA profile—the set of identification characteristics or numerical representation at each of the various loci analyzed;

(2) The Agency Identifier of the agency submitting the DNA profile;

(3) The Specimen Identification Number—generally a number assigned sequentially at the time of sample collection. This number does not correspond to the individual’s social security number, criminal history identifier, or correctional facility identifier; and

(4) The DNA laboratory personnel associated with a DNA profile analysis.

Q: What precautions are taken for safeguarding the information in these DNA databases?A: The computer terminals/servers containing the CODIS software are located in physically secure space at a criminal justice agency. Access to these computers is limited to only those individuals authorized to use CODIS and approved by the FBI. Communications between participating federal, state, and local laboratories occur over a wide area network accessible to only criminal justice agencies approved by the FBI.

Pursuant to federal law (the DNA Identification Act of 1994), DNA data is confidential. Access is restricted to criminal justice agencies for law enforcement identification purposes. Defendants are also permitted access to the samples and analyses performed in connection with their cases. If all personally identifiable information is removed, DNA profile information may be accessed by criminal justice agencies for a population statistics database, for identification research and protocol development purposes, or for quality control purposes. The unauthorized disclosure of DNA data in the National DNA database is subject to a criminal penalty not to exceed $250,000.

The National DNA Index System

Q: What is the National DNA Index System or NDIS?A: NDIS is the acronym for the “National DNA Index System” and is one part of CODIS—the national level—containing the DNA profiles contributed by federal, state, and local participating forensic laboratories. NDIS was implemented in October 1998. All 50 states, the District of Columbia, the federal government, the U.S. Army Criminal Investigation Laboratory, and Puerto Rico participate in NDIS.

The DNA Identification Act of 1994 (42 U.S.C. §14132) authorized the establishment of this National DNA Index. The DNA Act specifies the categories of data that may be maintained in NDIS (convicted offenders, arrestees, legal, detainees, forensic (casework), unidentified human remains, missing persons and relatives of missing persons) as well as requirements for participating laboratories relating to quality assurance, privacy and expungement.

Q: What are the specific requirements for a state’s participation in the National DNA Index?A: The DNA Identification Act (42 U.S.C. §14132(b)) specifies the requirements for participation in the National DNA Index System (NDIS) and the DNA data that may be maintained at NDIS (convicted offender, arrestees, legal, detainees, forensic (casework), unidentified human remains, missing persons and relatives of missing persons). The DNA Identification Act requires the following:

That the laboratories participating in the National DNA Index comply with the Quality Assurance Standards issued by the FBI Director;

That the laboratories submitting the DNA records are accredited by a nonprofit professional association of persons actively engaged in forensic science that is nationally recognized within the forensic science community;

That the laboratory submitting the DNA record undergoes an external audit every two years to demonstrate compliance with the FBI Director’s Quality Assurance Standards;

That the laboratory is a federal, state, or local criminal justice agency (“or the Secretary of Defense in accordance with section 1565 of title 10, United States Code”); and

That access to the DNA samples and records is limited in accordance with federal law.

States seeking to participate in NDIS sign a Memorandum of Understanding with the FBI Laboratory documenting their agreement to abide by the DNA Identification Act requirements as well as record-keeping and other operational procedures governing the uploading of DNA data, expungements, CODIS users, audits, etc.

Q: Are there approved accrediting agencies?A: Federal law requires that laboratories submitting DNA data to NDIS are accredited by a nonprofit professional association of persons actively engaged in forensic science that is nationally recognized within the forensic science community. The following entities have been determined to satisfy this definition: the American Society of Crime Laboratory Directors/Laboratory Accreditation Board (ASCLD/LAB) and Forensic Quality Services (ANSI-ASQ National Accreditation Board FQS).

Q: What are the access requirements for the DNA samples and records?A: The DNA Identification Act, §14132(b)(3), specifies the access requirements for the DNA samples and records “maintained by federal, state, and local criminal justice agencies (or the Secretary of Defense in accordance with section 1565 of title 10, United States Code)” …and “allows disclosure of stored DNA samples and DNA analyses only— (A) to criminal justice agencies for law enforcement identification purposes; (B) in judicial proceedings, if otherwise admissible pursuant to applicable statutes or rules; (C) for criminal defense purposes, to a defendant, who shall have access to samples and analyses performed in connection with the case in which such defendant is charged; or (D) if personally identifiable information is removed, for a population statistics database, for identification research and protocol development purposes, or for quality control purposes.”

Q: What if a state’s law on access to the DNA samples and profiles is different from the federal provisions?A: If a state has signed the Memorandum of Understanding with the FBI to participate in NDIS, that state has agreed to comply with the Federal DNA Identification Act, including the limited access requirements. To the extent that these access and disclosure provisions of the Federal DNA Act conflict with a state’s DNA database law, the state has agreed to the

provisions of the Federal DNA Act superseding the state law for purposes of NDIS participation. That is, if a state DNA database law permits access to the DNA samples and analyses in the state DNA database for purposes not contained in the Federal DNA Act (i.e., humanitarian purposes), and that state is participating in NDIS, then the state has agreed to comply with the more restrictive federal access provisions.

Q: Is the defendant entitled to access the DNA samples and analyses of other individuals? A. Under the DNA Identification Act, the defendant may have access to the samples and analyses performed in connection with his or her case for criminal defense purposes [42 U.S.C. §14132(b)(3)(C)]. This provision permits access to the results of, any analyses of samples taken from the defendant and any analyses developed from the crime scene evidence, in the case for which the defendant is charged. This provision does not authorize access for the defendant to samples and analyses that were not developed in connection with his or her case (such as other offenders’ DNA profiles). Nor does this provision in the Federal DNA Act authorize access for the defendant to all of the DNA records in the National DNA Index System.

Q: Are there any sanctions for states that participate in the National DNA Index System if the state does not comply with the Federal DNA Identification Act? A: Under the Federal DNA Identification Act, access to the National DNA Index System (NDIS) “is subject to cancellation if the quality control and privacy requirements described in subsection (b) are not met” [42 U.S.C .§14132(c)]. This means that if an NDIS participating laboratory or state does not comply with the FBI Director’s Quality Assurance Standards for Forensic DNA Databasing and Testing Laboratories and/or the limited access provisions of the Federal DNA Act, that NDIS participating laboratory or state may lose its ability to search, store, and maintain its DNA records in NDIS.

Q: What are the expungement requirements?A: Laboratories participating in the National DNA Index are required to expunge qualifying profiles from the National Index under the following circumstances:

1. For convicted offenders, if the participating laboratory receives a certified copy of a final court order documenting the conviction has been overturned; and

2. For arrestees, if the participating laboratory receives a certified copy of a final court order documenting the charge has been dismissed, resulted in an acquittal or no charges have been brought within the applicable time period.

Partial Matches and Familial Searches

Q: How is the National Database searched?A: The Forensic Index is searched against the Convicted Offender Index at moderate stringency. Moderate stringency is defined as a search that requires all alleles to match, but the target and candidate profiles can contain a different number of alleles.

Q: Why is the National Database searched at moderate stringency?A: DNA profiles obtained from crime scene evidence may be partially degraded and/or contain DNA from more than one individual. Additionally, different laboratories use different DNA typing kits in developing submitted evidence. The national database is searched at moderate stringency in order to address these potential scenarios and allow the ultimate detection of full, high stringency (exact) matches that might otherwise not have been identified.

Q: Is searching at moderate stringency a form of familial searching?A: No. As stated above, conducting a moderate stringency search is an effective means of searching forensic profiles from crime scene evidence that contain DNA from more than one individual (a forensic mixture), forensic DNA that is partially degraded or to accommodate the use of different DNA typing kits by different laboratories. This should not be confused with attempting to search for similar but not matching profiles already stored within the National DNA Index System – a type of database searching the FBI does not conduct.

Q: What is a partial match at NDIS?A: Occasionally a partial match between a forensic profile and an offender profile is observed during a routine NDIS database search. The FBI defines a partial match as a moderate stringency candidate match between two single source profiles having at each locus all of the alleles of one sample represented in the other sample. (See below illustration). A “partial match” is not an exact match of the two profiles.

Q: Can partial match information at NDIS be disclosed?A: Since a partial match is not an exact profile match to an offender profile and therefore cannot be subject to NDIS defined confirmation procedures, the FBI has authorized procedures for the release of partial match information. NDIS Laboratories that identify a partial match resulting from an NDIS search and wish to identify the offender profile should refer to Appendix G of the NDIS Operational Procedures Manual and contact the FBI’s CODIS Unit for further information.

Q: Is there any guidance on how to address these partial matches?A: At the FBI’s request, the Scientific Working Group on DNA Analysis Methods (SWGDAM) reviewed the scientific issues relating to partial matches and developed recommendations to assist in the evaluation of this information.

Q: How successful are partial matches at locating potential suspects?A: As explained in SWGDAM’s recommendations “Moderate stringency CODIS matches, in general, have very low efficiency in locating true relatives in offender databases. There is little useful probative value in the majority of partial matches using the current CODIS searching rules and algorithms. There are two main reasons for this: (1) true siblings will very rarely share alleles at all 13 CODIS loci; (2) as offender DNA databases get large, the number of unrelated people that do share at least one allele at all loci increases very rapidly. The original intent for allowing moderate stringency CODIS searches was the realization and acknowledgment that crime scene profiles often may be partially degraded and/or contain DNA from more than one contributor. Additionally, different primer sets may have been

used between profiles. Allowing the detection of partial matches can help accommodate these two scenarios and allow the ultimate detection of full, high-stringency matches that might otherwise not have been found.”

Q: Are partial matches the same as familial searches?A: No. A partial match, as indicated above, is the spontaneous product of a routine database search where a candidate offender profile is not identical to the forensic profile but because of a similarity in the number of alleles shared between the forensic profile and the candidate profile, the offender may be a close biological relative of the source of the forensic profile. Familial Searching is an intentional or deliberate search of the database conducted after a routine search for the purpose of potentially identifying close biological relatives of the unknown forensic sample associated with the crime scene profile.

Q: Are familial searches performed at NDIS?A: No, familial searching is not currently performed at NDIS. See also Federal Register Vol. 73, No. 238 (December 10, 2008 at page 74937).

Q: Are familial searches performed at the state level?A: Each jurisdiction must determine whether or not they are authorized to perform familial searching, and if so, the criteria and procedures governing their use of this searching process. The FBI does not regulate this type of search at the state level.

International Searches

Q: How are International DNA databases searched?A: Requests for a search of an international DNA database should be directed to your state CODIS administrator. The state CODIS administrator will forward the request to their state liaison Interpol contact.

Q: Can the National DNA Index System be searched by international agencies?A: An international law enforcement agency may submit a request for a search of the National DNA Index either through the FBI’s legal attaché responsible for that jurisdiction or through Interpol. Requests for such a search will be reviewed by the NDIS Custodian to ensure compliance with the Federal DNA Identification Act (criminal justice agency status, authorized specimen category and participation in quality assurance program) as well as the inclusion of a sufficient number of CODIS Core Loci for effective searching.

Quality Assurance Standards

Q: What are the Quality Assurance Standards?A: Compliance with the Quality Assurance Standards or QAS issued by the FBI Director is required by federal law in order for a laboratory to participate in and contribute DNA records to the National DNA Index System.

For Educational Use Only

Schmerber v. California, 384 U.S. 757 (1966)86 S.Ct. 1826, 16 L.Ed.2d 908

86 S.Ct. 1826Supreme Court of the United States

Armando SCHMERBER, Petitioner,v.

STATE OF CALIFORNIA.No. 658. | Argued April 25, 1966. |

Decided June 20, 1966.

Mr. Justice HARLAN delivered the opinion of the Court.Petitioner was convicted in Los Angeles Municipal Court of the criminal offense of driving an automobile while under the influence of intoxicating liquor. He had been arrested at a hospital while receiving treatment for injuries suffered in an accident involving the automobile that he had apparently been driving. At the direction of a police officer, a blood sample was then withdrawn from petitioner’s body by a physician at the hospital. *759 The chemical analysis of this sample revealed a percent by weight of alcohol in his blood at the time of the offense which indicated intoxication, and the report of this analysis was admitted in evidence at the trial. Petitioner objected to receipt of this evidence of the analysis on the ground that the blood had been withdrawn despite his refusal, on the advice of his counsel, to consent to the test. He contended that in that circumstance the withdrawal of the blood and the admission of the analysis in evidence violated his Fourth Amendment right to not be subjected to unreasonable searches and seizures. The Appellate Department of the California Superior Court rejected these contentions and affirmed the conviction. In view of constitutional decisions **1830 since we last considered these issues in Breithaupt v. Abram, 352 U.S. 432, 77 S.Ct. 408, 1 L.Ed.2d 448—see Escobedo v. State of Illinois, 378 U.S. 478, 84 S.Ct. 1758, 12 L.Ed.2d 977;Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653, and Mapp v. State of Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081—we granted certiorari. 382 U.S. 971, 86 S.Ct. 542, 15 L.Ed.2d 464. We affirm.

***

IV.THE SEARCH AND SEIZURE CLAIM.

In Breithaupt, as here, it was also contended that the chemical analysis should be excluded from evidence as the product of an unlawful search and seizure in violation of the Fourth and Fourteenth Amendments. The Court did not decide whether the extraction of blood in that case was unlawful, but rejected the claim on the basis of Wolf v. People of State of Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782. That case had held that the Constitution did not require, in state prosecutions for state crimes, the exclusion of evidence obtained in violation of the Fourth Amendment’s provisions. We have since overruled Wolf in that respect, holding in Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081, that the exclusionary rule adopted for federal prosecutions in Weeks v. United States, 232 U.S. 383, 34 S.Ct. 341, 58 L.Ed. 652, must also be applied in criminal prosecutions in state courts. The question is squarely presented therefore, whether the chemical analysis *767 introduced in evidence in this case should have been excluded as the product of an unconstitutional search and seizure.

**1834 The overriding function of the Fourth Amendment is to protect personal privacy and dignity against unwarranted intrusion by the State. In Wolf we recognized ‘(t)he security of one’s privacy against arbitrary intrusion by the police’ as being ‘at the core of the Fourth Amendment’ and ‘basic to a free society.’ 338 U.S., at 27, 69 S.Ct. at 1361. We reaffirmed that broad view of the Amendment’s purpose in Mapp. The values protected by the Fourth Amendment thus substantially overlap those the Fifth Amendment helps to protect. History and precedent have required that we today reject the claim that the Self-Incrimination Clause of the Fifth Amendment requires the human body in all circumstances to be held inviolate against state expeditions seeking evidence of crime. But if compulsory administration of a blood test does not implicate the Fifth Amendment, it plainly involves the broadly conceived reach of a search and seizure under the Fourth Amendment. That Amendment

© 2013 Thomson Reuters. No claim to original U.S. Government Works.



expressly provides that ‘(t)he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated. * * * It could not reasonably be argued, and indeed respondent does not argue, that the administration of the blood test in this case was free of the constraints of the Fourth Amendment. Such testing procedures plainly constitute searches of ‘persons,’ and depend antecedently upon seizures of ‘persons,’ within the meaning of that Amendment. Because we are dealing with intrusions into the human body rather than with state interferences with property relationships or private papers—‘houses, papers, and *768 effects’—we write on a clean slate. Limitations on the kinds of property which may be seized under warrant, as distinct from the procedures for search and the permissible scope of search, are not instructive in this context. We begin with the assumption that once the privilege against self-incrimination has been found not to bar compelled intrusions into the body for blood to be analyzed for alcohol contest, the Fourth Amendment’s proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner. In other words, the questions we must decide in this case are whether the police were justified in requiring petitioner to submit to the blood test, and whether the means and procedures employed in taking his blood respected relevant Fourth Amendment standards of reasonableness.

In this case, as will often be true when charges of driving under the influence of alcohol are pressed, these questions arise in the context of an arrest made by an officer without a warrant. Here, there was plainly probable cause for the officer to arrest petitioner and charge him with driving an automobile while under the influence of intoxicating liquor. The **1835 police officer who arrived *769 at the scene shortly after the accident smelled liquor on petitioner’s breath, and testified that petitioner’s eyes were ‘bloodshot, watery, sort of a glassy appearance.’ The officer saw petitioner again at the hospital, within two hours of the accident. There he noticed similar symptoms of drunkenness. He thereupon informed petitioner ‘that he was under arrest and that he was entitled to

the services of an attorney, and that he could remain silent, and that anything that he told me would be used against him in evidence.’

While early cases suggest that there is an unrestricted ‘right on the part of the government always recognized under English and American law, to search the person of the accused when legally arrested, to discover and seize the fruits or evidences of crime,’ Weeks v. United States, 232 U.S. 383, 392, 34 S.Ct. 341, 344,58 L.Ed.2d 652;People v. Chiagles, 237 N.Y. 19 o, 142 N.E. 583 (1923) (Cardozo, J.), the mere fact of a lawful arrest does not end our inquiry. The suggestion of these cases apparently rests on two factors—first, there may be more immediate danger of concealed weapons or of destruction of evidence under the direct control of the accused, United States v. Rabinowitz, 339 U.S. 56, 72—73, 70 S.Ct. 430, 437, 438, 94 L.Ed. 653 (Frankfurter, J., dissenting); second, once a search of the arrested person for weapons is permitted, it would be both impractical and unnecessary to enforcement of the Fourth Amendment’s purpose to attempt to confine the search to those objects alone. People v. Chiagles, 237 N.Y., at 197—198, 142 N.E., at 584. Whatever the validity of these considerations in general, they have little applicability with respect to searches involving intrusions beyond the body’s surface. The interests in *770 human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained. In the absence of a clear indication that in fact such evidence will be found, these fundamental human interests require law officers to suffer the risk that such evidence may disappear unless there is an immediate search. Although the facts which established probable cause to arrest in this case also suggested the required relevance and likely success of a test of petitioner’s blood for alcohol, the question remains whether the arresting officer was permitted to draw these inferences himself, or was required instead to procure a warrant before proceeding with the test. Search warrants are ordinarily required for searches of dwellings, and absent an emergency, no less could be required where intrusions into the human body are concerned. The requirement that a warrant be obtained is a requirement that inferences to support the search ‘be drawn by a




neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.’ Johnson v. United States, 333 U.S. 10, 13—14, 68 S.Ct. 367, 369, 92 L.Ed. 436; see also Aguilar v. State of Texas, 378 U.S. 108, 110—111, 84 S.Ct. 1509, 1511, 1512, 12 L.Ed.2d 723. The importance of informed, detached and deliberate determinations of the issue whether or not to invade another’s body in search of evidence of guilt is indisputable and great. The officer in the present case, however, might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence,’ **1836Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 883, 11 L.Ed.2d 777. We are told that the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system. Particularly in a case such as this, where time had *771 to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant. Given these special facts, we conclude that the attempt to secure evidence of blood-alcohol content in this case was an appropriate incident to petitioner’s arrest. Similarly, we are satisfied that the test chosen to measure petitioner’s blood-alcohol level was a reasonable one. Extraction of blood samples for testing is a highly effective means of determining the degree to which a person is under the influence of alcohol. See Breithaupt v. Abram, 352 U.S., at 436, n. 3, 77 S.Ct. at 410, 1 L.Ed.2d 448. Such tests are a commonplace in these days of periodic physical examination13 and experience with them teaches that the quantity of blood extracted is minimal, and that for most people the procedure involves virtually no risk, trauma, or pain. Petitioner is not one of the few who on grounds of

fear, concern for health, or religious scruple might prefer some other means of testing, such as the ‘Breathalyzer’ test petitioner refused. We need not decide whether such wishes would have to be respected.

FN 13. ‘The blood test procedure has become routine in our everyday life. It is a ritual for those going into military service as well as those applying for marriage licenses. Many colleges require such tests before permitting entrance and literally millions of us have voluntarily gone through the same, though a longer, routine in becoming blood donors.’ Breithaupt v. Abram, 352 U.S., at 436, 77 S.Ct. at 410.

Finally, the record shows that the test was performed in a reasonable manner. Petitioner’s blood was taken by a physician in a hospital environment according to accepted medical practices. We are thus not presented with the serious questions which would arise if a search involving use of a medical technique, even of the most *772 rudimentary sort, were made by other than medical personnel or in other than a medical environment—for example, if it were administered by police in the privacy of the stationhouse. To tolerate searches under these conditions might be to invite an unjustified element of personal risk of infection and pain.

We thus conclude that the present record shows no violation of petitioner’s right under the Fourth Amendment to be free of unreasonable searches and seizures. It bears repeating, however, that we reach this judgment only on the facts of the present record. The integrity of an individual’s person is a cherished value of our society. That we today hold that the Constitution does not forbid the States minor intrusions into an individual’s body under stringently limited conditions in no way indicates that it permits more substantial intrusions, or intrusions under other conditions.

Affirmed. End of Document © 2013 Thomson Reuters. No claim to original U.S. Government

Works.



Missouri v. McNeely, --- S.Ct. ---- (2013)

133 S. Ct. 1552Supreme Court of the United States

MISSOURI, Petitionerv.

Tyler G. McNEELY.No. 11–1425. | Argued Jan. 9, 2013. |

Decided April 17, 2013.

Opinion

Justice SOTOMAYOR announced the judgment of the Court and delivered the opinion of the Court with respect to Parts I, II–A, II–B, and IV, and an opinion with respect to Parts II–C and III, in which Justice SCALIA, Justice GINSBURG, and Justice KAGAN join.

*3 In Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966), this Court upheld a warrantless blood test of an individual arrested for driving under the influence of alcohol because the officer “might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened the destruction of evidence.” Id., at 770, 86 S.Ct. 1826 (internal quotation marks omitted). The question presented here is whether the natural metabolization of alcohol in the bloodstream presents a per se exigency that justifies an exception to the Fourth Amendment’s warrant requirement for nonconsensual blood testing in all drunk-driving cases. We conclude that it does not, and we hold, consistent with general Fourth Amendment principles, that exigency in this context must be determined case by case based on the totality of the circumstances.

I

While on highway patrol at approximately 2:08 a.m., a Missouri police officer stopped Tyler McNeely’s truck after observing it exceed the posted speed limit and repeatedly cross the centerline. The officer noticed several signs that McNeely was intoxicated, including McNeely’s bloodshot eyes, his slurred speech, and the smell of alcohol on his breath. McNeely acknowledged to the officer that he had consumed “a couple of beers” at a bar, App. 20, and he appeared unsteady

on his feet when he exited the truck. After McNeely performed poorly on a battery of field-sobriety tests and declined to use a portable breath-test device to measure his blood alcohol concentration (BAC), the officer placed him under arrest. The officer began to transport McNeely to the station house. But when McNeely indicated that he would again refuse to provide a breath sample, the officer changed course and took McNeely to a nearby hospital for blood testing. The officer did not attempt to secure a warrant. Upon arrival at the hospital, the officer asked McNeely whether he would consent to a blood test. Reading from a standard implied consent form, the officer explained to McNeely that under state law refusal to submit voluntarily to the test would lead to the immediate revocation of his driver’s license for one year and could be used against him in a future prosecution. See Mo. Ann. Stat. §§ 577.020.1, 577.041 (West 2011). McNeely nonetheless refused. The officer then directed a hospital lab technician to take a blood sample, and the sample was secured at approximately 2:35 a.m. Subsequent laboratory testing measured McNeely’s BAC at 0.154 percent, which was well above the legal limit of 0.08 percent. See § 577.012.1. *4 McNeely was charged with driving while intoxicated (DWI), in violation of § 577.010. He moved to suppress the results of the blood test, arguing in relevant part that, under the circumstances, taking his blood for chemical testing without first obtaining a search warrant violated his rights under the Fourth Amendment. The trial court agreed. It concluded that the exigency exception to the warrant requirement did not apply because, apart from the fact that “[a]s in all cases involving intoxication, [McNeely’s] blood alcohol was being metabolized by his liver,” there were no circumstances suggesting the officer faced an emergency in which he could not practicably obtain a warrant. No. 10CG–CR01849–01 (Cir. Ct. Cape Girardeau Cty., Mo., Div. II, Mar. 3, 2011), App. to Pet. for Cert. 43a. On appeal, the Missouri Court of Appeals stated an intention to reverse but transferred the case directly to the Missouri Supreme Court. No. ED 96402 (June 21, 2011), id., at 24a.




The Missouri Supreme Court affirmed. 358 S.W.3d 65 (2012) (per curiam ). Recognizing that this Court’s decision in Schmerber v. California, 384 U.S. 757, 86 S.Ct. 1826, 16 L.Ed.2d 908, “provide[d] the backdrop” to its analysis, the Missouri Supreme Court held that “Schmerber directs lower courts to engage in a totality of the circumstances analysis when determining whether exigency permits a nonconsensual, warrantless blood draw.” 358 S.W.3d, at 69, 74. The court further concluded that Schmerber “requires more than the mere dissipation of blood-alcohol evidence to support a warrantless blood draw in an alcohol-related case.” 358 S.W.3d, at 70. According to the court, exigency depends heavily on the existence of additional “ ‘special facts,’ ” such as whether an officer was delayed by the need to investigate an accident and transport an injured suspect to the hospital, as had been the case in Schmerber. 358 S.W.3d, at 70, 74. Finding that this was “unquestionably a routine DWI case” in which no factors other than the natural dissipation of blood-alcohol suggested that there was an emergency, the court held that the nonconsensual warrantless blood draw violated McNeely’s Fourth Amendment right to be free from unreasonable searches of his person. Id., at 74–75. We granted certiorari to resolve a split of authority on the question whether the natural dissipation of alcohol in the bloodstream establishes a per se exigency that suffices on its own to justify an exception to the warrant requirement for nonconsensual blood testing in drunk-driving investigations.2 See 567 U.S. ––––, 133 S.Ct. 98, 183 L.Ed.2d 737 (2012). We now affirm.

IIA

*5 The Fourth Amendment provides in relevant part that “[t]he 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.” Our cases have held that a warrantless search of the person is reasonable only if it falls within a recognized exception. See, e.g., United States v. Robinson, 414 U.S. 218, 224, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973). That principle applies to the type of search at issue in this case,

which involved a compelled physical intrusion beneath McNeely’s skin and into his veins to obtain a sample of his blood for use as evidence in a criminal investigation. Such an invasion of bodily integrity implicates an individual’s “most personal and deep-rooted expectations of privacy.” Winston v. Lee, 470 U.S. 753, 760, 105 S.Ct. 1611, 84 L.Ed.2d 662 (1985); see also Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602, 616, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). We first considered the Fourth Amendment restrictions on such searches in Schmerber, where, as in this case, a blood sample was drawn from a defendant suspected of driving while under the influence of alcohol. 384 U.S., at 758, 86 S.Ct. 1826. Noting that “[s]earch warrants are ordinarily required for searches of dwellings,” we reasoned that “absent an emergency, no less could be required where intrusions into the human body are concerned,” even when the search was conducted following a lawful arrest. Id., at 770, 86 S.Ct. 1826. We explained that the importance of requiring authorization by a “ ‘neutral and detached magistrate’ ” before allowing a law enforcement officer to “invade another’s body in search of evidence of guilt is indisputable and great.” Ibid. (quoting Johnson v. United States, 333 U.S. 10, 13–14, 68 S.Ct. 367, 92 L.Ed. 436 (1948)). As noted, the warrant requirement is subject to exceptions. “One well-recognized exception,” and the one at issue in this case, “applies when the exigencies of the situation make the needs of law enforcement so compelling that a warrantless search is objectively reasonable under the Fourth Amendment.” A variety of circumstances may give rise to an exigency sufficient to justify a warrantless search, including law enforcement’s need to provide emergency assistance to an occupant of a home, Michigan v. Fisher, 558 U.S. 45, 47–48, 130 S.Ct. 546, 175 L.Ed.2d 410 (2009) (per curiam ), engage in “hot pursuit” of a fleeing suspect, United States v. Santana, 427 U.S. 38, 42–43, 96 S.Ct. 2406, 49 L.Ed.2d 300 (1976), or enter a burning building to put out a fire and investigate its cause, Michigan v. Tyler, 436 U.S. 499, 509–510, 98 S.Ct. 1942, 56 L.Ed.2d 486 (1978). As is relevant here, we have also recognized that in some circumstances law enforcement officers may conduct a search without a warrant to prevent the




imminent destruction of evidence. See Cupp v. Murphy, 412 U.S. 291, 296, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973); Ker v. California, 374 U.S. 23, 40–41, 83 S.Ct. 1623, 10 L.Ed.2d 726 (1963) (plurality opinion). While these contexts do not necessarily involve equivalent dangers, in each a warrantless search is potentially reasonable because “there is compelling need for official action and no time to secure a warrant.” Tyler, 436 U.S., at 509, 98 S.Ct. 1942. To determine whether a law enforcement officer faced an emergency that justified acting without a warrant, this Court looks to the totality of circumstances. See Brigham City v. Stuart, 547 U.S. 398, 406, 126 S.Ct. 1943, 164 L.Ed.2d 650 (2006) (finding officers’ entry into a home to provide emergency assistance “plainly reasonable under the circumstances”); Illinois v. McArthur, 531 U.S. 326, 331, 121 S.Ct. 946, 148 L.Ed.2d 838 (2001) (concluding that a warrantless seizure of a person to prevent him from returning to his trailer to destroy hidden contraband was reasonable “[i]n the circumstances of the case before us” due to exigency); Cupp, 412 U.S., at 296, 93 S.Ct. 2000 (holding that a limited warrantless search of a suspect’s fingernails to preserve evidence that the suspect was trying to rub off was justified “[o]n the facts of this case”); see also Richards v. Wisconsin, 520 U.S. 385, 391–396, 117 S.Ct. 1416, 137 L.Ed.2d 615 (1997) (rejecting a per se exception to the knock-and-announce requirement for felony drug investigations based on presumed exigency, and requiring instead evaluation of police conduct “in a particular case”). We apply this “finely tuned approach” to Fourth Amendment reasonableness in this context because the police action at issue lacks “the traditional justification that ... a warrant ... provides.” Atwater v. Lago Vista, 532 U.S. 318, 347, n. 16, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001). Absent that established justification, “the fact-specific nature of the reasonableness inquiry,” Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 136 L.Ed.2d 347 (1996), demands that we evaluate each case of alleged exigency based “on its own facts and circumstances.” Go–Bart Importing Co. v. United States, 282 U.S. 344, 357, 51 S.Ct. 153, 75 L.Ed. 374 (1931). *6 Our decision in Schmerber applied this totality

of the circumstances approach. In that case, the petitioner had suffered injuries in an automobile accident and was taken to the hospital. 384 U.S., at 758, 86 S.Ct. 1826. While he was there receiving treatment, a police officer arrested the petitioner for driving while under the influence of alcohol and ordered a blood test over his objection. Id., at 758–759, 86 S.Ct. 1826. After explaining that the warrant requirement applied generally to searches that intrude into the human body, we concluded that the warrantless blood test “in the present case” was nonetheless permissible because the officer “might reasonably have believed that he was confronted with an emergency, in which the delay necessary to obtain a warrant, under the circumstances, threatened ‘the destruction of evidence.’ ” Id., at 770, 86 S.Ct. 1826 (quoting Preston v. United States, 376 U.S. 364, 367, 84 S.Ct. 881, 11 L.Ed.2d 777 (1964)). In support of that conclusion, we observed that evidence could have been lost because “the percentage of alcohol in the blood begins to diminish shortly after drinking stops, as the body functions to eliminate it from the system.” 384 U.S., at 770, 86 S.Ct. 1826. We added that “[p]articularly in a case such as this, where time had to be taken to bring the accused to a hospital and to investigate the scene of the accident, there was no time to seek out a magistrate and secure a warrant.” Id., at 770–771, 86 S.Ct. 1826. “Given these special facts,” we found that it was appropriate for the police to act without a warrant. Id., at 771, 86 S.Ct. 1826. We further held that the blood test at issue was a reasonable way to recover the evidence because it was highly effective, “involve[d] virtually no risk, trauma, or pain,” and was conducted in a reasonable fashion “by a physician in a hospital environment according to accepted medical practices.” Ibid. And in conclusion, we noted that our judgment that there had been no Fourth Amendment violation was strictly based “on the facts of the present record.” Id., at 772, 86 S.Ct. 1826. *7 Thus, our analysis in Schmerber fits comfortably within our case law applying the exigent circumstances exception. In finding the warrantless blood test reasonable in Schmerber, we considered all of the facts and circumstances of the




particular case and carefully based our holding on those specific facts.

BThe State properly recognizes that the reasonableness of a warrantless search under the exigency exception to the warrant requirement must be evaluated based on the totality of the circumstances. Brief for Petitioner 28–29. But the State nevertheless seeks a per se rule for blood testing in drunk-driving cases. The State contends that whenever an officer has probable cause to believe an individual has been driving under the influence of alcohol, exigent circumstances will necessarily exist because BAC evidence is inherently evanescent. As a result, the State claims that so long as the officer has probable cause and the blood test is conducted in a reasonable manner, it is categorically reasonable for law enforcement to obtain the blood sample without a warrant. It is true that as a result of the human body’s natural metabolic processes, the alcohol level in a person’s blood begins to dissipate once the alcohol is fully absorbed and continues to decline until the alcohol is eliminated. See Skinner, 489 U.S., at 623, 109 S.Ct. 1402; Schmerber, 384 U.S., at 770–771, 86 S.Ct. 1826. Because an individual’s alcohol level gradually declines soon after he stops drinking, a significant delay in testing will negatively affect the probative value of the results. This fact was essential to our holding in Schmerber, as we recognized that, under the circumstances, further delay in order to secure a warrant after the time spent investigating the scene of the accident and transporting the injured suspect to the hospital to receive treatment would have threatened the destruction of evidence. 384 U.S., at 770–771, 86 S.Ct. 1826. But it does not follow that we should depart from careful case-by-case assessment of exigency and adopt the categorical rule proposed by the State and its amici. In those drunk-driving investigations where police officers can reasonably obtain a warrant before a blood sample can be drawn without significantly undermining the efficacy of the search, the Fourth Amendment mandates that they do so. See McDonald v. United States, 335 U.S. 451, 456, 69 S.Ct. 191, 93 L.Ed. 153 (1948).

We do not doubt that some circumstances will make obtaining a warrant impractical such that the dissipation of alcohol from the bloodstream will support an exigency justifying a properly conducted warrantless blood test. That, however, is a reason to decide each case on its facts, as we did in Schmerber, not to accept the “considerable overgeneralization” that a per se rule would reflect. Richards, 520 U.S., at 393, 117 S.Ct. 1416. *8 The context of blood testing is different in critical respects from other destruction-of-evidence cases in which the police are truly confronted with a “ ‘now or never’ ” situation. Roaden v. Kentucky, 413 U.S. 496, 505, 93 S.Ct. 2796, 37 L.Ed.2d 757 (1973). In contrast to, for example, circumstances in which the suspect has control over easily disposable evidence, see Georgia v. Randolph, 547 U.S. 103, 116, n. 6, 126 S.Ct. 1515, 164 L.Ed.2d 208 (2006); Cupp, 412 U.S., at 296, 93 S.Ct. 2000, BAC evidence from a drunk-driving suspect naturally dissipates over time in a gradual and relatively predictable manner. Moreover, because a police officer must typically transport a drunk-driving suspect to a medical facility and obtain the assistance of someone with appropriate medical training before conducting a blood test, some delay between the time of the arrest or accident and the time of the test is inevitable regardless of whether police officers are required to obtain a warrant. See State v. Shriner, 751 N.W.2d 538, 554 (Minn.2008) (Meyer, J., dissenting). This reality undermines the force of the State’s contention, endorsed by the dissent, that we should recognize a categorical exception to the warrant requirement because BAC evidence “is actively being destroyed with every minute that passes.”. Consider, for example, a situation in which the warrant process will not significantly increase the delay before the blood test is conducted because an officer can take steps to secure a warrant while the suspect is being transported to a medical facility by another officer. In such a circumstance, there would be no plausible justification for an exception to the warrant requirement. The State’s proposed per se rule also fails to account for advances in the 47 years since Schmerber was decided that allow for the more expeditious processing of warrant applications,




particularly in contexts like drunk-driving investigations where the evidence offered to establish probable cause is simple. The Federal Rules of Criminal Procedure were amended in 1977 to permit federal magistrate judges to issue a warrant based on sworn testimony communicated by telephone. See 91 Stat. 319. As amended, the law now allows a federal magistrate judge to consider “information communicated by telephone or other reliable electronic means.” Fed. Rule Crim. Proc. 4.1. States have also innovated. Well over a majority of States allow police officers or prosecutors to apply for search warrants remotely through various means, including telephonic or radio communication, electronic communication such as e-mail, and video conferencing. And in addition to technology-based developments, jurisdictions have found other ways to streamline the warrant process, such as by using standard-form warrant applications for drunk-driving investigations. *9 We by no means claim that telecommunications innovations have, will, or should eliminate all delay from the warrant-application process. Warrants inevitably take some time for police officers or prosecutors to complete and for magistrate judges to review. Telephonic and electronic warrants may still require officers to follow time-consuming formalities designed to create an adequate record, such as preparing a duplicate warrant before calling the magistrate judge. See Fed. Rule Crim. Proc. 4.1(b)(3). And improvements in communications technology do not guarantee that a magistrate judge will be available when an officer needs a warrant after making a late-night arrest. But technological developments that enable police officers to secure warrants more quickly, and do so without undermining the neutral magistrate judge’s essential role as a check on police discretion, are relevant to an assessment of exigency. That is

particularly so in this context, where BAC evidence is lost gradually and relatively predictably.

Of course, there are important countervailing concerns. While experts can work backwards from the BAC at the time the sample was taken to determine the BAC at the time of the alleged offense, longer intervals may raise questions about the accuracy of the calculation. For that reason, exigent circumstances justifying a warrantless blood sample may arise in the regular course of law enforcement due to delays from the warrant application process. But adopting the State’s per se approach would improperly ignore the current and future technological developments in warrant procedures, and might well diminish the incentive for jurisdictions “to pursue progressive approaches to warrant acquisition that preserve the protections afforded by the warrant while meeting the legitimate interests of law enforcement.” State v. Rodriguez, 2007 UT 15, ¶ 46, 156 P.3d 771, 779. In short, while the natural dissipation of alcohol in the blood may support a finding of exigency in a specific case, as it did in Schmerber, it does not do so categorically. Whether a warrantless blood test of a drunk-driving suspect is reasonable must be determined case by case based on the totality of the circumstances.

****14 We hold that in drunk-driving investigations, the natural dissipation of alcohol in the bloodstream does not constitute an exigency in every case sufficient to justify conducting a blood test without a warrant. The judgment of the Missouri Supreme Court is affirmed.



U.S. v. Kincade, 379 F.3d 813 (2004)04 Cal. Daily Op. Serv. 7542, 2004 Daily Journal D.A.R. 10,196

379 F.3d 813United States Court of Appeals,

Ninth Circuit.

UNITED STATES of America, Plaintiff–Appellee,

v.Thomas Cameron KINCADE,

Defendant–Appellant.No. 02–50380. | Argued and Submitted March 23, 2004. | Filed Aug. 18, 2004.

O’SCANNLAIN, Circuit Judge [Plurality Opinion]:

[A plurality opinion is an opinion lacking in enough judge’s votes to constitute a majority, but receiving more votes than any other opinion]

We must decide whether the Fourth Amendment permits compulsory DNA profiling of certain conditionally-released federal offenders in the absence of individualized suspicion that they have committed additional crimes.

I***A

Pursuant to the DNA Analysis Backlog Elimination Act of 2000 (“DNA Act”), Pub.L. No. 106–546, 114 Stat. 2726 (2000), individuals who have been convicted of certain federal crimes and who are *817 incarcerated, or on parole, probation, or supervised release must provide federal authorities with “a tissue, fluid, or other bodily sample ... on which a[n] ... analysis of th[at sample’s] deoxyribonucleic acid (DNA) identification information” can be performed. 42 U.S.C. §§ 14135a(c)(1)-(2); id. at §§ 14135a(a)(1)-(2). Because the Federal Bureau of Investigation (“the Bureau”) considers DNA information derived from blood samples to be more reliable than that obtained from other sources (in part because blood is easier to test and to preserve than hair, saliva, or skin cells), Bureau guidelines require those in federal custody and subject to the DNA Act (“qualified federal offenders”) to submit to compulsory blood sampling. See Nancy Beatty

Gregoire, Federal Probation Joins the World of DNA Collection, 66 Fed. Probation 30, 31 (2002). Failure “to cooperate in the collection of that sample [is] ... a class A misdemeanor,” punishable by up to one year’s imprisonment and a fine of as much as $100,000. 42 U.S.C. § 14135a(a)(5); 18 U.S.C. §§ 3571 & 3581. *818 Once collected by a phlebotomist, qualified federal offenders’ blood samples are turned over to the Bureau for DNA analysis-the identification and recording of an individual’s “genetic fingerprint.”Through the use of short tandem repeat technology (“STR”), the Bureau analyzes the presence of various alleles located at 13 markers (or loci) on DNA present in the specimen. These STR loci are each found on so-called “junk DNA”—that is, non-genic stretches of DNA not presently recognized as being responsible for trait coding—and “were purposely selected because they are not associated with any known physical or medical characteristics.” H.R.Rep. No. 106–900(I) at *27. Because there are observed group variances in the representation of various alleles at the STR loci, however, DNA profiles derived by STR may yield probabilistic evidence of the contributor’s race or sex. Future of Forensic DNA Testing 35, 39–42. Even so, DNA profiles generated by STR are highly individuated: Due to the substantial *819 number of alleles present at each of the 13 STR loci (between 7 and 20, see Future of Forensic DNA Testing 41) and wide-spread variances in their representation among human beings, the chance that two randomly selected individuals will share the same profile are infinitesimal—as are the chances that a person randomly selected from the population at large will present the same DNA profile as that drawn from crime-scene evidence. See Future of Forensic DNA Testing 19–22, 39–42. Once STR has been used to produce an individual’s DNA profile, the resulting record8 is loaded into the Bureau’s Combined DNA Index System (“CODIS”)—a massive centrally-managed database linking DNA profiles culled from federal, state, and territorial DNA collection programs, as well as profiles drawn from crime-scene evidence, unidentified remains, and genetic samples voluntarily provided by relatives of missing persons. 42 U.S.C. §§ 14132(a)-(b).




FN 8. Beyond the STR-generated DNA profile, CODIS records contain only an identifier for the agency that provided the DNA sample, a specimen identification number, and the name of the personnel associated with the analysis.

CODIS can be used in two different ways. First, law enforcement can match one forensic crime scene sample to another forensic crime scene sample, thereby allowing officers to connect unsolved crimes through a common perpetrator. Second, and of perhaps greater significance, CODIS enables officials to match evidence obtained at the scene of a crime to a particular offender’s profile. In this latter capacity, CODIS serves as a potent tool for monitoring the criminal activity of *820 known offenders.

B

On July 20, 1993, driven by escalating personal and financial troubles, decorated Navy seaman Thomas Cameron Kincade robbed a bank using a firearm in violation of 18 U.S.C. §§ 2113(a) & (d) and 18 U.S.C. § 924(c)(1). He soon pleaded guilty to those charges and was sentenced to 97 months’ imprisonment, followed by three years’ supervised release. Among others, terms of his release required him to participate in an outpatient substance abuse program; not to commit another federal, state, or local crime; and to follow the instructions of his probation officer. Shortly after his August 2000 release from federal prison, Kincade submitted a urine sample which tested positive for cocaine. A warrant was issued for his arrest in early October, and on November 13, the district court reinstated Kincade’s original term of supervision. In April 2001, Kincade admitted relapsing into cocaine abuse and submitted cocaine-positive urine samples. As a result, the district court modified the terms of Kincade’s supervised release on June 7, 2001 to include treatment in a residential drug program. On March 25, 2002, Kincade’s probation officer asked him to submit a blood sample pursuant to the DNA Act. He refused, eventually explaining that his objections were purely a matter of personal preference—in his words,” not a religious

conviction.” Kincade indicated that he would comply with the requirements of the DNA Act only if threatened with imposition of a significant term of incarceration. Lacking any alternative, Kincade’s probation officer informed the district court that Kincade *821 had refused to submit the blood sample required by the DNA Act. He also recommended revocation of Kincade’s supervised release, and re-incarceration. In briefing to the district court prior to a scheduled revocation hearing, Kincade challenged the constitutionality of the DNA Act on grounds that it violated the Fourth Amendment. Following argument, Judge Tevrizian rejected Kincade’s constitutional challenges to the DNA Act. Concluding that Kincade had violated the terms of his supervised release by refusing to follow his Probation officer’s lawful instruction to provide a blood sample, Judge Tevrizian sentenced Kincade to four months’ imprisonment and two years’ supervised release. . . . Kincade finally was forced to submit to DNA profiling. He persists in his challenge to the Act.

II***A

Pursuant to the Fourth Amendment,”[t]he 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.” U.S. Const. amend. IV. “The touchstone of our analysis under the Fourth Amendment is always ‘the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.’ ” Pennsylvania v. Mimms, 434 U.S. 106, 108–09, 98 S.Ct. 330, 54 L.Ed.2d 331 (1977) (quoting Terry v. Ohio, 392 U.S. 1, 19, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). *822 Ordinarily, the reasonableness of a search depends on governmental compliance with the Warrant Clause, which requires authorities to demonstrate probable cause to a neutral magistrate




and thereby convince him to provide formal authorization to proceed with a search by issuance of a particularized warrant. United States v. United States Dist. Ct., 407 U.S. 297, 315–16, 92 S.Ct. 2125, 32 L.Ed.2d 752 (1972); see also Groh v. Ramirez, 540 U.S. 551, ––––, 124 S.Ct. 1284, 1290–91, 157 L.Ed.2d 1068 (2004). However, the general rule of the Warrant Clause is not unyielding. Under a variety of conditions, law enforcement may execute a search without first complying with its dictates. For instance, police may execute warrantless searches incident to a lawful arrest: It is reasonable for authorities to search an arrestee for weapons that might threaten their safety, or for evidence which might be destroyed. See, e.g., Chimel v. California, 395 U.S. 752, 762–63, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969); see also Thornton v. United States, 541 U.S. 615, 124 S.Ct. 2127, 2132, 158 L.Ed.2d 905 (2004). And even outside the context of a lawful arrest supported by probable cause, officers are likewise authorized to conduct a warrantless protective pat-down of individuals they encounter in the field so long as their concerns are justified by reasonable suspicion of possible danger. See, e.g., Terry, 392 U.S. at 27, 88 S.Ct. 1868. The Court has also sanctioned several general search regimes that are free from the usual warrant-and-probable cause requirements. Though not necessarily mutually-exclusive, three categories of searches help organize the jurisprudence. The first can be called “exempted areas.” Included here are searches conducted at the border, in prisons, and at airports and entrances to government buildings. *823 The second category is typically labeled “administrative” searches, though it has not always been given that label. This class includes inspections of closely-regulated businesses, see, e.g., Burger, 482 U.S. at 702–04, 107 S.Ct. 2636 (“[W]here the privacy interests of the owner are weakened and the government interests in regulating particular businesses are concomitantly heightened, a warrantless inspection of commercial premises may well be reasonable within the meaning of the Fourth Amendment.”); United States v. Biswell, 406 U.S. 311, 317, 92 S.Ct. 1593, 32 L.Ed.2d 87 (1972), and extends to other routine regulatory investigations. See, e.g., Camara v.

Mun. Ct. of S.F., 387 U.S. 523, 535–539, 87 S.Ct. 1727, 18 L.Ed.2d 930 (1967) (authorizing municipal “area inspections” designed to monitor compliance with building safety codes). A final category of suspicionless searches is referred to as “special needs,” and in recent years, the Court has devoted increasing attention to the development of the accompanying analytical doctrine. See Illinois v. Lidster, 540 U.S. 419, 124 S.Ct. 885, 157 L.Ed.2d 843 (2004) (upholding a highway checkpoint designed to enable police to question citizens about a recent crime). For the most part, these cases involve searches conducted for important non-law enforcement purposes in contexts where adherence to the warrant-and-probable cause requirement would be impracticable. Thus, the Court explained in New Jersey v. T.L.O. that “preservation of order and a proper educational environment requires close supervision of schoolchildren, as well as the enforcement of rules against conduct that would be perfectly permissible if undertaken by an adult.” 469 U.S. at 339, 105 S.Ct. 733. At the same time, the Court explained, the warrant and probable cause requirements are ill-suited to the pressing needs of public schools. Id. at 339–40, 105 S.Ct. 733. The Justices therefore found “that the school setting requires some easing of the restrictions to which searches by public authorities are ordinarily *824 subject,” and held that “legality of a search of a student should depend simply on the reasonableness, under all the circumstances, of the search.” Id. at 340–41, 105 S.Ct. 733.

1

Almost as soon as the “special needs” rationale was articulated, however, the Court applied special needs analysis in what seemed—at least on the surface—to be a clear law enforcement context. Griffin, 483 U.S. at 879–80, 107 S.Ct. 3164 (upholding a warrant-less search of a probationer’s residence).

***

5*829 The Court has long understood special needs




analysis to be triggered not by a complete absence of suspicion, but by a departure from the Fourth Amendment’s warrant-and-probable cause requirements. In Griffin, after all, the search upheld by the Court under special needs analysis was also supported by “reasonable grounds,” 483 U.S. at 875–76, 107 S.Ct. 3164, and Justice Scalia opened the analysis of his opinion for the Court by observing:

Although we usually require that a search be undertaken only pursuant to a warrant (and thus supported by probable cause, as the Constitution says warrants must be), we have permitted exceptions when “special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.”

Id. at 873, 107 S.Ct. 3164 (quoting T.L.O., 469 U.S. at 351, 105 S.Ct. 733 (Blackmun, J., concurring)); see also Von Raab, 489 U.S. at 666, 109 S.Ct. 1384 (noting that the special needs present in that case “justify departure from the ordinary warrant and probable-cause requirements”); Skinner, 489 U.S. at 619, 109 S.Ct. 1402 (“Except in certain well-defined circumstances, a search or seizure in such a case is not reasonable unless it is accomplished pursuant to a judicial warrant issued upon probable cause.” We have recognized exceptions to this rule, however, “when special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable.” When faced with such special needs, we have not hesitated to balance the governmental and privacy interests to assess the practicality of the warrant and probable-cause requirements in the particular context.”) (quoting Griffin, 483 U.S. at 873, 107 S.Ct. 3164) (citations and additional internal quotation omitted); T.L.O., 469 U.S. at 340–42 & n. 8, 105 S.Ct. 733 (describing the special needs justifying a departure from the warrant-and-probable cause standard in schools and expressly declining to “decide whether individualized suspicion is an essential element of the reasonableness standard we adopt for searches by school authorities.”). *830 . . . It remains entirely an open question whether suspicionless searches of conditional releasees pass constitutional muster when such

searches are conducted for law enforcement purposes.

BWe are not the first court called upon to address this unresolved issue. Confronted with challenges to the federal DNA Act and its state law analogues, our sister circuits and peers in the states have divided in their analytical approaches—both before and after the Supreme Court’s recent special needs decisions. On one hand, the Second, Seventh, and Tenth Circuits, along with a variety of federal district courts and at least two state Supreme Courts, have upheld DNA collection statutes under a special needs analysis (though not always ruling out the possibility that the totality of the circumstances might validate the search absent some special need). See Green v. Berge, 354 F.3d 675, 679 (7th Cir.2004). By contrast, the Fourth and Fifth Circuits, a Seventh Circuit Judge, numerous federal district courts, and a variety of state courts have approved compulsory DNA profiling under a traditional assessment of reasonableness gauged by the totality of the circumstances. See Green, 354 F.3d at 680–81 (Easterbrook, J., concurring).

***Finally, we observe that our own 1995 decision in Rise v. Oregon, 59 F.3d 1556 (9th Cir.1995), upheld the constitutionality of a state DNA collection statute by applying a pure totality of the circumstances analysis. Our resolution of the methodological question, left open by Knights, *832 therefore squarely implicates the legitimacy of our own precedent and its method.

III

While not precluding the possibility that the federal DNA Act could satisfy a special needs analysis, we today reaffirm the continuing vitality of Rise—and hold that its reliance on a totality of the circumstances analysis to uphold compulsory DNA profiling of convicted offenders both comports with the Supreme Court’s recent precedents and resolves this appeal in concert with the requirements of the Fourth Amendment.




A *833 The mere possibility that suspicionless searches of conditional releasees may be sustainable under a pure totality of the circumstances analysis is insufficient to establish that such searches actually are sustainable under such analysis. We begin our resolution of the issue by taking note of the well-established principle that parolees and other conditional releasees are not entitled to the full panoply of rights and protections possessed by the general public. Quite to the contrary, the Court has recognized that “those who have suffered a lawful conviction” are properly subject to a “broad range of [restrictions] that might infringe constitutional rights in free society,” McKune v. Lile, 536 U.S. 24, 36, 122 S.Ct. 2017, 153 L.Ed.2d 47 (2002), in no small part due to the extraordinary rate of recidivism among offenders. See, e.g., Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 365, 118 S.Ct. 2014, 141 L.Ed.2d 344 (1998); Knights, 534 U.S. at 120, 122 S.Ct. 587; Griffin, 483 U.S. at 875, 107 S.Ct. 3164; Crawford, 372 F.3d at 1069–71 *834 (Trott, J., concurring); see also Ewing v. California, 538 U.S. 11, 25–27, 123 S.Ct. 1179, 155 L.Ed.2d 108 (2003); Parke v. Raley, 506 U.S. 20, 27, 113 S.Ct. 517, 121 L.Ed.2d 391 (1992) (“States have a valid interest in deterring and segregating habitual criminals.”). Thus, conditional releasees may claim “only ... conditional liberty properly dependent on observance of special parole restrictions” that extend “substantially beyond the ordinary restrictions imposed by law on an individual citizen.” Morrissey, 408 U.S. at 478 & 480, 92 S.Ct. 2593 (1972); Scott, 524 U.S. at 365, 118 S.Ct. 2014 (“[T]he State accords a limited degree of freedom in return for the parolee’s assurance that he will comply with the often strict terms and conditions of his release. In most cases, the State is willing to extend parole only because it is able to condition it upon compliance with certain requirements.”). These restrictions generally “are meant to assure that the [conditional release term] serves as a period of genuine rehabilitation and that the community is not harmed by the [releasee]’s being at large. These same goals require and justify the exercise of supervision to assure that the

restrictions are in fact observed.” Griffin, 483 U.S. at 875, 107 S.Ct. 3164 (internal citations omitted). And whether they are initially legitimated as furthering a “special need,” id. at 873–74, 107 S.Ct. 3164, or recognized merely as serving the government’s “ ‘overwhelming interest’ in ensuring that a [releasee] complies with those requirements and is returned to prison if he fails to do so,” Scott, 524 U.S. at 365, 118 S.Ct. 2014 (quoting Morrissey, 408 U.S. at 477, 92 S.Ct. 2593), once such strictures are imposed and clearly noticed, they dramatically alter the relationship between the releasee and the government. For at bottom, they render all kinds of individual choices-choices that otherwise would be privately considered, privately determined, and privately undertaken-matters of legitimate government concern and investigation. As we recognized nearly thirty years ago:

The purposes of the parole system give the parole authorities a special and unique interest in invading the privacy of parolees under their supervision. In order to fulfill his dual responsibilities for helping the parolee to reintegrate into society and evaluating his progress, and for preventing possible further anti-social or criminal conduct by the parolee, it is essential that the parole officer have a thorough understanding of the parolee and his environment, including his personal habits, his relationships with other persons, and what he is doing, both at home and outside it. It is equally important that this information be kept up to date.... Many of the [accompanying] restrictions relate to matters which the [releasee] might otherwise be entitled to preserve as




private.

Latta v. Fitzharris, 521 F.2d 246, 249 (9th Cir.1975) (en banc) (plurality opinion). These transformative changes wrought by a lawful conviction and accompanying term of conditional release are well-recognized by the Supreme Court, which often has noted that conditional releasees enjoy severely constricted expectations of privacy relative to the general citizenry—and that the government has a far more substantial interest in invading their privacy than it does in interfering with the liberty of law-abiding citizens. See, e.g., Knights, 534 U.S. at 119–20, 122 S.Ct. 587; Ferguson, 532 U.S. at 79 n. 15, 121 S.Ct. 1281; Griffin, 483 U.S. at 874–75, 107 S.Ct. 3164; see also Crawford, 372 F.3d at 1071 (Trott, J., concurring) (“Parolees ... are a discrete group that are a demonstrable menace to the safety of the communities into which they are discharged. Parolees have demonstrated by their adjudicated criminal *835 conduct a capacity and willingness to commit crimes serious enough to deprive them of liberty. They have not yet finished serving their sentences in connection with which they do not enjoy a presumption of innocence. Moreover, their collective behavior while on parole demonstrates the truth of the axiom that past behavior is the best predictor of future behavior.”). We believe that such a severe and fundamental disruption in the relationship between the offender and society, along with the government’s concomitantly greater interest in closely monitoring and supervising conditional releasees, is in turn sufficient to sustain suspicionless searches of his person and property even in the absence of some non-law enforcement “special need”—at least where such searches meet the Fourth Amendment touchstone of reasonableness as gauged by the totality of the circumstances. Let us be clear: Our holding in no way intimates that conditional releasees’ diminished expectations of privacy serve to extinguish their ability to invoke the protections of the Fourth Amendment’s guarantee against unreasonable searches and seizures. Where a given search or class of searches cannot satisfy the traditional totality of the circumstances test, a conditional releasee may lay

claim to constitutional relief-just like any other citizen. Further, and without regard to the outcome of any such analysis, we reiterate Judge Trott’s recent observation that conditional releasees likewise “retain [ ] a right of privacy against government searches and seizures that are arbitrary, a right of privacy against searches and seizures that are capricious, and a right of privacy against searches and seizures that are harassing.” Crawford, 372 F.3d at 1072 (Trott, J., concurring); cf. Skinner, 489 U.S. at 621–22, 109 S.Ct. 1402 (noting that “[a]n essential purpose of a warrant requirement is to protect privacy interests by assuring citizens subject to a search or seizure that such intrusions are not the random or arbitrary acts of government agents,” and explaining that no warrant was required in the case at bar in part due to “the standardized nature of the tests and the minimal discretion vested in those charged with administering the [m]”). These safeguards amply shelter the conditional releasee’s residual expectation of, and entitlement to, privacy. We also wish to emphasize the limited nature of our holding. With its alarmist tone, Judge Reinhardt’s dissent repeatedly asserts that our decision renders every person in America subject to DNA sampling for CODIS purposes. Nothing could be further from the truth—and we respectfully *836 suggest that our dissenting colleague ought to recognize the obvious and significant distinction between the DNA profiling of law-abiding citizens who are passing through some transient status (e.g., newborns, students, passengers in a car or on a plane) and lawfully adjudicated criminals whose proven conduct substantially heightens the government’s interest in monitoring them and quite properly carries lasting consequences that simply do not attach from the simple fact of having been born, or going to public school, or riding in a car. See also Green, 354 F.3d at 679–81 (Easterbrook, J., concurring).

B

With this framework in mind, we can now appraise the reasonableness of the federal DNA Act’s compulsory DNA profiling of qualified federal offenders. In evaluating the totality of the circumstances, we must balance the degree to which DNA profiling interferes with the privacy




interests of qualified federal offenders against the significance of the public interests served by such profiling. See Brown v. Texas, 443 U.S. 47, 50–51, 99 S.Ct. 2637, 61 L.Ed.2d 357 (1979).

1

As we have recognized, compulsory blood tests implicate the individual’s interest in bodily integrity—“a cherished value of our society.” Schmerber v. California, 384 U.S. 757, 772, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Nonetheless, it is firmly established that “the intrusion occasioned by a blood test is not significant, since such ‘tests are a commonplace in these days of periodic physical examinations and experience with them teaches that the quantity of blood extracted is minimal, and that for most people the procedure involves virtually no risk, trauma, or pain.’ ” Skinner, 489 U.S. at 625, 109 S.Ct. 1402 (quoting Schmerber, 384 U.S. at 771, 86 S.Ct. 1826); see also Winston, 470 U.S. at 762, 105 S.Ct. 1611 (observing “society’s judgment that blood tests do not constitute an unduly extensive imposition on an individual’s personal privacy and bodily integrity”); Yin v. California, 95 F.3d 864, 870 (9th Cir.1996) (Reinhardt, J.) (“In today’s world, a medical examination that does not include either a blood test or urinalysis would be unusual.”). Indeed, the Supreme Court observed nearly 50 years ago that the blood test procedure has become routine in our everyday life.

*** *837 At the same time, the DNA profile derived from the defendant’s blood sample establishes only a record of the defendant’s identity—otherwise personal information in which the qualified offender can claim no right of privacy once lawfully convicted of a qualifying offense (indeed, once lawfully arrested and booked into state custody). For, as we recognized in Rise, “[o]nce a person is convicted of one of the felonies included as predicate offenses under [the DNA Act], his identity has become a matter of state interest and he has lost any legitimate expectation of privacy in the identifying information derived from blood sampling.” 59 F.3d at 1560; see also Groceman,

354 F.3d at 413–14; Jones, 962 F.2d at 306–07.32

FN 32. Kincade’s response to this argument—that virtually all free persons have been required to give up evidence of their identity at some point in time, yet may still legitimately claim exemption from compulsory DNA testing—misses the mark. Those who have suffered a lawful conviction lose an interest in their identity to a degree well-recognized as sufficient to entitle the government permanently to maintain a verifiable record of their identity; not merely sporadically to demand its production under independently lawful conditions.

Both Kincade and his supporting amici passionately protest that because the government does not destroy blood samples drawn for DNA profiling and because such samples therefore conceivably could be mined for more private information or otherwise misused in the future, any presently legitimate generation of DNA profiles is irretrievably tainted by the prospect of far more consequential future invasions of personal privacy.Judge Reinhardt’s dissent likewise maintains that in light of the “nightmarish” possibilities CODIS portends, we must act immediately to halt the program-before the wolf enters the fold, rather than after. Post at 844. The concerns raised by amici and by Judge Reinhardt in his dissent are indeed weighty ones, and we do not dismiss them lightly. But beyond the fact that the DNA Act itself provides protections *838 against such misuse, our job is limited to resolving the constitutionality of the program before us, as it is designed and as it has been implemented. In our system of government, courts base decisions not on dramatic Hollywood fantasies, but on concretely particularized facts developed in the cauldron of the adversary process and reduced to an assessable record. If, as Kincade’s aligned amici and Judge Reinhardt’s dissent insist, and when, some future program permits the parade of horribles the DNA Act’s opponents fear—unregulated disclosure of CODIS profiles to private parties, genetic discrimination, state-sponsored eugenics, and (whatever it means) the use of CODIS somehow “quite literally, to eliminate political opposition,” post at 847—we have every confidence that courts will respond appropriately. As currently structured and




implemented, however, the DNA Act’s compulsory profiling of qualified federal offenders can only be described as minimally invasive—both in terms of the bodily intrusion it occasions, and the information it lawfully produces.

2

In contrast, the interests furthered by the federal DNA Act are undeniably compelling. By establishing a means of identification that can be used to link conditional releasees to crimes committed while they are at large, compulsory DNA profiling serves society’s “ ‘overwhelming interest’ in ensuring that a parolee complies with th[ ]e requirements [of his release] and is returned to prison if he fails to do so.” Scott, 524 U.S. at 365, 118 S.Ct. 2014 (quoting Morrissey, 408 U.S. at 483, 92 S.Ct. 2593). The deterrent effect of such profiling, see, e.g., Roe, 193 F.3d at 79; *839 Rise, 59 F.3d at 1561 & n. 4; Jones, 962 F.2d at 311, similarly fosters society’s enormous interest in reducing recidivism. As Judge Trott highlighted in his Crawford concurrence, rates of re-arrest among parolees and probationers are astounding, 372 F.3d at 1069–70 (Trott, J., concurring); the Supreme Court, too, has frequently stressed the pressing need to reduce recidivism among the offender population. See, e.g., Ewing, 538 U.S. at 25–27, 123 S.Ct. 1179; Smith v. Doe, 538 U.S. 84, 103, 123 S.Ct. 1140, 155 L.Ed.2d 164 (2003); McKune, 536 U.S. at 32–33, 122 S.Ct. 2017; Knights, 534 U.S. at 120, 122 S.Ct. 587; Griffin, 483 U.S. at 875, 876, 878, 880, 107 S.Ct. 3164. Finally, by contributing to the solution of past crimes, DNA profiling of qualified federal offenders helps bring closure to countless victims of crime who long have languished in the knowledge that perpetrators remain at large. Together, the weight of these interests is monumental. These interests also are intimately related to the core purposes of conditional release: rehabilitating convicted offenders and sheltering society from future victimization. See Knights, 534 U.S. at 119, 122 S.Ct. 587; Scott, 524 U.S. at 365, 118 S.Ct. 2014; Griffin, 483 U.S. at 875 & 880, 107 S.Ct. 3164; see also United States v. Jackson, 189 F.3d 820, 824 (9th Cir.1999). As a deterrent, DNA profiling can help to steer conditional releasees

toward law-abiding lives as productive members of our society, fostering the rehabilitative goal of our systems of conditional release. Such profiling likewise helps protect the society into which offenders are conditionally released by reducing crime attributable to the operation of limited release programs like probation and parole. Rise, 59 F.3d at 1561. And by laying a foundation for solving those crimes that are not successfully deterred by the collection of DNA profiles, the DNA Act both provides a means to monitor such individuals’ compliance with the terms of their release—see supra at 817–818 n. 3—and helps minimize the pain and suffering recidivist offenders sow in our communities.

3

In light of conditional releasees’ substantially diminished expectations of privacy, the minimal intrusion occasioned by blood sampling, and the overwhelming societal interests so clearly furthered by the collection of DNA information from convicted offenders, we must conclude that compulsory DNA profiling of qualified federal offenders is reasonable under the totality of the circumstances. Therefore, we today realign ourselves with every other state and federal appellate court to have considered these issues-squarely holding that the DNA Act satisfies the requirements of the Fourth Amendment.

*840 IV

Because compulsory DNA profiling conducted pursuant to the federal DNA Act would have occasioned no violation of Kincade’s Fourth Amendment rights, the judgment and accompanying sentence of the district court are AFFIRMED.

GOULD, Circuit Judge, concurring:

I agree with the majority that Thomas Kincade’s conviction should be affirmed. I write separately because I believe that we should affirm under a “special needs” theory rather than the totality of the circumstances theory. I further pose a caveat on the limits of what we can properly decide today.




***II

I write to emphasize what we do not decide today. Thomas Kincade is now on supervised release, and was in that status when his DNA was demanded. While he is on supervised release, there is a special need to have his DNA extracted and stored in the CODIS database. This serves the penalogical purpose of deterring him from committing a new crime while on supervised release, and of course it will also aid in catching him if he does so notwithstanding. What we do not have before us is a petitioner who has fully paid his or her debt to society, who has completely served his or her term, and who has left the penal system. In that case, the special need that I identify to maintain the DNA is gone, but the record of the felon’s DNA in the CODIS database is not. Once those previously on supervised release have wholly cleared their debt to society, the question may be raised, “Should the CODIS entry be erased?” Although it might seem counter-intuitive to law enforcement that a record once gleaned might be lost, there is a substantial *842 privacy interest at stake.3 In a proper case where this issue is presented, we would presumably need to weigh society’s benefit from retention of the DNA records of a felon against that person’s right, in a classical sense, to privacy. In our age in which databases can be “mined” in a millisecond using super-fast computers, in which extensive information can, or potentially could, be gleaned from DNA (even the “junk” DNA currently used), and in which this data can easily be stored and shared by governments and private parties worldwide, the threat of a loss of privacy is real, even if we cannot yet discern the full scope of the problem. A related concern was voiced more than two decades ago, long before the advent of DNA profiling. See generally Arthur R. Miller, The Assault on Privacy 24–54 (1971). With monumental increases in technologies, Professor Miller’s alarm about technology’s assault on privacy must be seriously pondered. A nice question, if and when properly presented, would be whether DNA samples, though lawfully obtained from a felon on supervised release, may properly be retained by the government after the felon has finished his or her term and has paid his or her debt to society. Once the special need for the DNA

sample has gone, does the government have sufficient reason to retain the sample in order to overcome the felon’s privacy interest? Kincade’s case does not call upon us to answer this question. I express no view on the question of the future retention of a felon’s DNA after supervised release is terminated, nor do I understand the majority opinion to express any view on this question.

FN 3. Fingerprints, of course, are routinely maintained in law enforcement files once taken, and perhaps this is an arguable analogy for DNA databases. But, unlike fingerprints, DNA stores and reveals massive amounts of personal, private data about that individual, and the advance of science promises to make stored DNA only more revealing in time. Like DNA, a fingerprint identifies a person, but unlike DNA, a fingerprint says nothing about the person’s health, propensity for particular disease, race and gender characteristics, and perhaps even propensity for certain conduct.

REINHARDT, Circuit Judge, with whom PREGERSON, KOZINSKI, and WARDLAW, Circuit Judges, join, dissenting:

“They that can give up essential liberty to obtain a little safety deserve neither liberty nor safety.” BENJAMIN FRANKLIN, HISTORICAL REVIEW of PENNSYLVANIA (1759).

Today this court approves the latest installment in the federal government’s effort to construct a comprehensive national database into which basic information concerning American citizens will be entered and stored for the rest of their lives—although no majority exists with respect to the legal justification for this conclusion. *843 My colleagues claim to authorize merely the “compulsory DNA profiling of certain conditionally-released federal offenders,” as authorized by the DNA Analysis Backlog Elimination Act of 2000 (“DNA Act”), Pub.L. No. 106–546, 114 Stat. 2726 (2000). We would be lucky indeed if it were possible to so limit the effect of their opinions. For, under the rationales they espouse, especially the plurality’s, all Americans will be at risk, sooner rather than later, of having our DNA samples permanently placed on file in federal cyberspace, and perhaps even worse, of being subjected to various other governmental




programs providing for suspicionless searches conducted for law enforcement purposes. Neither Supreme Court precedent nor any established rule of Fourth Amendment law supports today’s plurality or concurring opinion. Never has the Court approved of a search like the one we confront today: a programmatic search designed to produce and maintain evidence relating to ordinary criminal wrongdoing, yet conducted without any level of individualized suspicion. Never has the Court approved of the government’s construction of a permanent governmental database built from general suspicionless searches and designed for use in the investigation and prosecution of criminal offenses.

****844 To justify the suspicionless searches authorized by the DNA Act, the plurality sweeps away the traditional Fourth Amendment requirement that law enforcement officials conduct searches only when predicated on some level of suspicion that the individual being searched has committed a crime. In place of this time-honored principle, the plurality has employed an opaque “totality of the circumstances” test. See ante at 832. It should come as no shock that under this malleable standard, my colleagues have concluded that the forcible extraction of blood samples from probationers and parolees, and the permanent maintenance of profiles constructed from those samples in a federal databank, is constitutionally reasonable. The “totality” of the circumstances relied upon by the plurality is as follows: Those who commit crimes have reduced expectations of privacy, ante at 834–835, and, because the forcible extraction of blood is a constitutionally insignificant invasion of privacy, ante at 836–837, and the weight of the government interest in DNA profiling “is monumental,” ante at 839, suspicionless searches are constitutionally reasonable. Under the test the plurality employs, any person who experiences a reduction in his expectation of privacy would be susceptible to having his blood sample extracted and included in CODIS—attendees of public high schools or universities, persons seeking to obtain drivers’ licenses,

applicants for federal employment, or persons requiring any form of federal identification, and those who desire to travel by airplane, to name just a few. Already, all members of the Armed Forces must submit to the involuntary extraction of blood for the purpose of providing DNA samples. Indeed, given the “monumental” government interest and the “insignificant” invasion of privacy described by the plurality, it is difficult to imagine that the balancing of interests it then performs would not justify the government’s including data regarding all Americans in the system regardless of the level of the expectation of privacy they might possess. This is not what the Framers of our Constitution intended.

****845 Because I cannot join in my colleagues’ willingness to accept so dangerous and drastic a limitation on our individual liberties, I respectfully dissent.

I. The Scope of the DNA Act and the Combined DNA Index System

The federal program which for all practical purposes is approved today is not nearly as limited as the one initially enacted by Congress. The federal DNA database at issue in this litigation, the Combined DNA Index System (“CODIS”),contains more information about vastly more individuals than it did when it was first created.

***B. Junk DNA and the Potential for Expansion

CODIS’s potential to expand is not confined to its likely future inclusion of more and more categories of persons to be subjected to DNA profiling. The system also has the ability to identify an increasing amount of information about each of its profiled subjects as our understanding of DNA continues to develop at lightning speed.

The fact that scientists currently lack the capacity to comprehend the full significance of the data stored within junk DNA samples is irrelevant. As Judge Gould notes in his concurrence, CODIS retains individual DNA profiles forever—even if convicted offenders have completed their debt to society. See Gould concurrence, at 842. Moreover,




the FBI encourages all laboratories to retain portions of the evidence samples they collect, see Federal Bureau of Investigation, Standards for Forensic DNA Testing Labs, at ¶ 7.2.

***II. The Reasonableness of the Search

*850 The Constitution generally requires that searches be supported by probable cause and be approved prior to execution by a warrant issued by an impartial magistrate.

A. The Constitution Requires Individualized Suspicion for Law Enforcement Searches

The Fourth Amendment’s requirement that searches be supported by reasonable and particularized suspicion and a warrant *852 is deeply rooted in our history. The historical background of that amendment demonstrates that our Framers’ were steadfastly committed to the ideal that general warrants and searches conducted in the absence of reasonable and particular suspicion were intolerable in a democratic society. See Henry v. United States, 361 U.S. 98, 100, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959). In particular, the Framers feared blanket searches, whereby law enforcement officials would go door-to-door to conduct searches of every house in an area, regardless of suspicion. See id. Fourth Amendment jurisprudence has evolved considerably over the years. The Court has recognized, for example, a number of reasonable departures from the warrant requirement and in some instance has relaxed the level of suspicion required before a law enforcement official may conduct a search. See, e.g., Terry v. Ohio, 392 U.S. 1, 24–25, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968) (upholding “stop and frisk” searches upon reasonable suspicion as a general exception to the warrant requirement).

****855 There can be no question that the government’s primary purpose in conducting searches pursuant to the DNA Act is to generate evidence capable of assisting ordinary law enforcement investigations. The searches are

designed to reveal at some point in time whether the individuals whose blood samples are involuntarily extracted have “committed some crime.” Lidster, 540 U.S. at ––––, 124 S.Ct. at 889. This is the paradigmatic search condemned by the special needs doctrine.

*860 C. Conclusion

The Fourth Amendment forbids blanket suspicionless searches conducted for ordinary law enforcement purposes. Under the plurality’s opinion, the only remaining area of the Fourth Amendment that has been “nonnegotiable” would no longer be safe. Like Judge Gould, I believe that the special needs doctrine controls this case. Unlike Judge Gould, however, I would hold that the DNA Act is plainly designed to generate evidence of ordinary criminal wrongdoing, and not to serve a supervisory need, as was the case in Griffin. That is an impermissible purpose under the special needs doctrine. Consequently, I would hold that, under that doctrine, the Act is unconstitutional.

III. The Totality of the Circumstances Test

The plurality takes a far more dangerous course than does Judge Gould in his concurrence. The concurrence simply applies, or misapplies, the special needs doctrine. At least under that doctrine, suspicionless searches are carefully scrutinized and held constitutional only when they serve a valid special need apart from law enforcement. The plurality, however, believes that suspicionless searches do not need to be justified on the traditional basis employed by the Supreme Court. Casting aside the Court’s established framework for analyzing blanket suspicionless search regimes, the plurality instead employs a malleable and boundless standard—it asks merely whether the search was reasonable considering “the totality of the circumstances present.” See, e.g., United States v. Knights, 534 U.S. 112, 121, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001). The approach chosen by the plurality dispenses with the structural guarantees that have guided Fourth Amendment jurisprudence since the Founding.

*861 A. Precedent Does Not Support the Totality of the Circumstances Approach




No Supreme Court case supports the plurality’s use of the totality of the circumstances test for suspicionless searches designed to obtain evidence for use against the persons searched in present or future criminal investigations. The Knights decision, the only opinion to which the plurality points, does not support the view that, because the group searched includes conditional releasees, we may simply disregard the principles governing traditional Fourth Amendment law, and conduct law enforcement searches in the absence of individualized suspicion. Despite this history, and despite the strongly suggestive language in Knights, the plurality implausibly maintains that drawing a line between suspicion-based and suspicionless searches is unnecessary because “special needs analysis [is] triggered not by a complete absence of suspicion, but by a departure from the Fourth Amendment’s warrant-and-probable cause requirements.” Ante, at 829. In support of this proposition, the plurality cites Griffin, *863 which applied a “special needs” analysis despite the fact that the search of Griffin was supported by reasonable suspicion. Id. The plurality somehow infers from this that the “totality of the circumstances” test is not limited to searches based on reasonable suspicion. The plurality’s logic is faulty. The fact that a suspicionless search must be justified on the basis of special needs in no way means that a suspicion-supported search cannot be justified on that basis. For instance, if the special need of the state to prevent drunk driving on the highways, see Sitz, 496 U.S. at 451, 110 S.Ct. 2481, justifies traffic stops where no individualized suspicion exists, certainly that same need would justify such stops based on a reasonable suspicion that particular drivers were in fact drunk. In any event, the line between suspicionless law enforcement searches and searches based upon reasonable individualized suspicion is as old as the Fourth Amendment and is fundamental to the preservation of the privacy interests which that provision protects.

***B. The Dangers of Adopting the Totality of the

Circumstances

The rationale employed by the plurality would set us on a dangerous path. The *864 plurality claims

that the totality of the circumstances analysis applies simply because probationers and parolees have reduced expectations of privacy. The danger in the plurality’s approach lies in its willingness to apply the totality of the circumstances test to uphold law enforcement searches where no suspicion at all exists. Under such an approach, all of us would inevitably have our liberty eroded when our privacy interests are balanced against the “monumental” interests of law enforcement. The plurality’s rationale, if employed in future cases, would result in the end of the Fourth Amendment’s general requirement that searches be based on individual suspicion. Under the plurality’s reasoning, “the judicial assessment of a parole or probation search’s reasonableness outside the strictures of special needs analysis,” is justified by the fact that conditional releasees have “diminished expectations of privacy.” If reduced expectations of privacy render inapplicable the requirement of individualized suspicion, then suspicionless searches would be valid in many more situations than the plurality would presently be willing to admit. If the totality of the circumstance test could be used to justify suspicionless law enforcement searches, the Fourth Amendment would be little more than an afterthought as the government seeks to conduct more and more invasive general programs in the name of law enforcement. This would be so even if the searches, at least initially, were confined to persons with reduced expectations of privacy. We have already seen the expansion of CODIS and the DNA Act—an expansion that today is authorized by my colleagues under the Fourth Amendment. Even worse, if such expansion is possible with respect to forcible extractions of blood to be included in CODIS, numerous less or equally intrusive methods of evidence collection—namely, all ordinary searches and seizures except perhaps for those requiring more extensive bodily invasions—will all be valid when justified by the government’s “persuasive” law enforcement objectives—at least for the vast majority of us who at some times or others in our lives have a reduced expectation of privacy. Indeed, in the face of “monumental” governmental law enforcement interests, I find it difficult to understand when suspicionless searches would be found to violate




the Fourth Amendment.

****866 C. Even Under the Totality of the

Circumstances Test, the Searches Authorized by the DNA Act Are Unreasonable

Although the test used by the plurality provides no meaningful guidance, I believe that even under that standard a faithful application of the principles central to the Fourth Amendment would require invalidation of the search regime. Under a balancing test, whether a given search is reasonable turns on several factors—the *867 level of the searched individual’s expectation of privacy, the character of the intrusion, and the strength of the government’s interests—all of which must be balanced against each other in light of the facts of each case. Balancing those factors, I would hold that the totality of the circumstances makes the searches authorized by the DNA Act unreasonable.

1. The Extent of the Intrusion Caused by the Search

The intrusion authorized by the DNA Act is significant. As the Supreme Court explained in Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989), “a compelled intrusion into the body for blood to be analyzed ... must be deemed a Fourth Amendment search. In light of our society’s concern for the security of one’s person, it is obvious that this physical intrusion, penetrating beneath the skin, infringes an expectation of privacy that society is prepared to recognize as reasonable.” Id. at 616, 109 S.Ct. 1402 (internal quotation marks omitted); see also Schmerber v. California, 384 U.S. 757, 767, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966); United States v. Wright, 215 F.3d 1020, 1025 (9th Cir.2000). Even though the Court has in some cases upheld such searches as constitutional, it has insisted that searches of an individual’s body are “severe, though brief, intrusion[s] upon cherished personal security that [are] subject to constitutional scrutiny.” Cupp v. Murphy, 412 U.S. 291, 295, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973). It is true that courts have sometimes described the privacy invasion caused by blood tests in less forceful terms. The search in question, however,

constitutes far more of an intrusion than the mere insertion of a needle into an individual’s body and the consequent extraction of a blood sample. In prior cases dealing with the level of intrusion authorized by the taking of blood samples, courts did not confront a regime in which the samples were turned into profiles capable of being searched time and time again throughout the course of an individual’s life. See, e.g., Schmerber, 384 U.S. at 768–69, 86 S.Ct. 1826 (describing the blood test as designed to produce evidence of inebriation at the time of the search). The startling advance of technology has magnified the power of the initial search authorized by the DNA Act, such that the invasion of privacy is vastly more significant that we might have previously assumed. Here, the DNA placed in the CODIS database contains sensitive information, and no one can say today what future uses will be made of it once it is entered into governmental files; certainly, today’s restrictions provide no guarantees regarding future governmental uses. To reduce the searches authorized by the DNA Act to the physical act of taking blood would be to ignore the “totality of the circumstances” surrounding the search and to ignore the manner in which “the advance of technology” has affected “the degree of privacy secured to citizens by the Fourth Amendment.” Kyllo v. United States, 533 U.S. 27, 33–34, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001). We cannot ignore technological developments in the Fourth Amendment context, but instead must confront “what limits there are upon this power of technology to shrink the realm of guaranteed privacy.” Id. at 34, 121 S.Ct. 2038. I would hold that the invasion of privacy required by the DNA Act is substantial. *868 The Act is unprecedented in its scope and threatens only to expand once we have justified its initial forms. With the substantial nature of the invasion in mind, I turn to the reasonable expectations of privacy held by probationers and parolees.

2. The Expectation of Privacy

The impact of the DNA Act is not limited to persons in a conditional release status. It affects individuals who have completed their period of supervision, as well as some who have never been subject to that status. The data of some arrestees




are now included in CODIS and there is little doubt that the collection of data from far more will soon be completed. In any event even probationers and parolees have full expectations of privacy once they have paid their dues to society and have completed their terms of conditional release. The plurality, however, has concluded that “such a severe and fundamental disruption in the relationship between the offender and society, along with the government’s concomitantly greater interest in closely monitoring and supervising conditional releasees, is in turn sufficient to sustain suspicionless searches of his person and property even in the absence of some non-law enforcement ‘special need’ ” Ante, at 834–835. In other words, convicted offenders’ reduced privacy expectations may last forever. I respectfully disagree with the plurality’s assessment of the privacy expectations held by individuals subjected to searches under the DNA Act. I conclude that despite probationers’ and parolees’ diminished expectations of privacy, those expectations they retain must be given sufficient weight in the balancing process.

3. The Governmental Interests

I now turn to the government’s interests in conducting the searches in question. The plurality has described these interests as “enormous,” “overwhelming,” and “monumental.” Certainly, one would think that such interests involve the prevention of a terrorist act, the defusing of a ticking bomb, the discovery of the missing weapons of mass destruction, or something similarly weighty. Not so. According to the plurality, these words describe the normal, everyday needs of law enforcement—preventing crimes, encouraging rehabilitation, and bringing closure to victims by solving old crimes. I agree that the government has a very strong interest in solving and deterring crime. But I disagree that the *869 interests sought to be advanced by the DNA Act are anything other than the ordinary needs advanced in favor of every program designed to assist crime control. See supra, at 856–857 (describing the Act’s primary purpose). In order to make the government’s interests appear stronger than they are, the plurality contends that

searches pursuant to the Act serve the commendable purpose of ensuring that the innocent will not be wrongly convicted. I would certainly hope that the Act would be used for such purposes. Recent experience has shown that DNA evidence can help exonerate the wrongfully convicted, and I would be the first to applaud a statute that helped wrongfully accused or convicted individuals obtain DNA analysis for that worthy purpose. Unfortunately, that is not the Act we review today. The DNA Act does nothing to assist the wrongfully accused or convicted. The Act provides no option for DNA testing to those who seek to prove their innocence, and no funding to states or localities to help provide DNA sampling when requested by those who contend that were wrongfully arrested or convicted. It simply requires the collection and maintenance of blood samples from those in our society the state believes to be the most likely to commit crimes. It is thus difficult to accept the government’s representation of its concerns regarding the innocent.

D. Summary

Were we to apply the totality of the circumstances analysis, I would hold that the balance of considerations makes the programmatic suspicionless searches unconstitutionally unreasonable. The invasions of privacy the Act authorizes are substantial; the probationers and parolees subjected to its provisions maintain reasonable expectations of privacy; and the government’s interest, while significant, is no stronger than its ordinary interest in investigating and prosecuting crimes. On balance, the government’s desire to create a comprehensive DNA databank must give way when weighed against the privacy interests at issue and the extent of the intrusion involved.

IV. Conclusion

*871 Today, the court has opted for comprehensive DNA profiling of the least protected among us, and in so doing, has jeopardized us all. I respectfully dissent.

KOZINSKI, Circuit Judge, dissenting: © 2013 Thomson Reuters. No claim to original U.S. Government Works.



New technologies test the judicial conscience. On the one hand, they hold out the promise of more effective law enforcement, and the hope that we will be delivered from the scourge of crime. On the other hand, they often achieve these ends by intruding, in ways never before imaginable, into the realms protected by the Fourth Amendment.

****872 The difficult question is whether the government may exploit Kincade’s diminished Fourth Amendment rights while he is still a probationer to obtain his DNA signature, so it can use it in investigating thousands of crimes nationwide, past and future, for the rest of Kincade’s life. Stripped of its bells and whistles, the plurality’s theory seems to be this: We have a pretty good idea that people who have committed crimes in the past are more likely than others to commit crimes in the future. It is thus very, very, very useful for us to get their DNA fingerprints now so we can use them later to investigate crimes. But if we accept the legal presumption—not questioned here by anyone—that once Kincade leaves supervised release he will be just like everyone else, authorizing the extraction of his DNA now to help solve crimes later is a huge end run around the Fourth Amendment. Or, to state it in reverse, if the reason for taking Kincade’s DNA while he’s on supervised release is that it will help solve crimes later, it seems equally justifiable to take his blood after he comes off supervised release. Ex-probationers are just as likely to commit crimes as people now on probation, and including them in the CODIS database would surely help solve even more crimes. Balancing the minor intrusion the plurality sees from the taking of blood—a mere pin-prick—against the “monumental” benefits to society, op. at 839, it is unclear how the balance could be struck any differently as to ex-probationers than as to current ones. Which brings us to the people we really need to worry about, namely you and me. If collecting DNA fingerprints can be justified on the basis of the plurality’s multi-factor, gestalt high-wire act, then it’s hard to see how we can keep the database from expanding to include everybody. Of course, anyone who already has to give up bodily fluids for

alcohol or drug testing—airline pilots, high school athletes, customs inspectors and people suspected of driving while intoxicated—would be easy prey under the mushy multi-factor test. But, with only a little waggling, we can shoehorn the rest of us in. As the plurality notes, blood is taken from us from the day we are born pretty much till the day we die, and on many days in between. What exactly happens to that blood after it leaves our veins? Most of us don’t know or care, presuming (if we consider it at all) that whatever isn’t used for testing is discarded. But what if Congress were to require medical labs to submit the excess blood for DNA fingerprinting so it can be included in CODIS? Applying the plurality’s balancing analysis, I’m hard pressed to see how this would violate anyone’s Fourth Amendment rights. The benefits would continue to be huge. The more DNA samples are included in the database, the better off we are: More guilty parties will be found, more innocents will be cleared and more unknown crime victims will be identified. On the other side of the ledger, the costs would be meager. By glomming onto blood already extracted for other purposes, the government would have eliminated what the plurality identifies as the most serious negative factor—the piercing of the skin. Op. at 836–38. Moreover, it’s hard to say that most of us have any expectation as to what happens to our blood once it leaves our veins in the doctor’s office; we certainly don’t expect it to be returned to us. Arguably, we have no more reasonable expectation of privacy in *873 blood turned over to third parties and abandoned than we do in our trash cans or bank records. See California v. Greenwood, 486 U.S. 35, 39–41, 108 S.Ct. 1625, 100 L.Ed.2d 30 (1988) (no reasonable expectation of privacy in materials left on public street, like garbage); United States v. Miller, 425 U.S. 435, 442–43, 96 S.Ct. 1619, 48 L.Ed.2d 71 (1976) (no reasonable expectation of privacy in material conveyed to third party, like bank records, even if conveyed in confidence and for a limited purpose). And without a reasonable expectation of privacy, there isn’t even a “search” for Fourth Amendment purposes. Kyllo, 533 U.S. at 31–33, 121 S.Ct. 2038. Which is why it is important to recognize that the Fourth Amendment intrusion here is not primarily the taking of the blood, but seizure of the DNA fingerprint and its




inclusion in a searchable database. The plurality’s approach will cut even closer to home as our techniques for extracting DNA improve and identifying information can more easily be obtained from urine and saliva, or from hair follicles inadvertently pulled out during a visit to the barber or hairdresser. As the plurality points out, we can’t go anywhere or do much of anything without leaving a bread-crumb trail of identifying DNA matter. If we have no legitimate expectation

of privacy in such bodily material, what possible impediment can there be to having the government collect what we leave behind, extract its DNA signature and enhance CODIS to include everyone? Parallel Citations04 Cal. Daily Op. Serv. 7542, 2004 Daily Journal D.A.R. 10,196

End of Document © 2013 Thomson Reuters. No claim to original U.S. Government Works.



Johnson v. Quander, 370 F.Supp.2d 79 (2005)

370 F.Supp.2d 79United States District Court,

District of Columbia.

Lamar JOHNSON, Plaintiff,v.

Paul A. QUANDER, Director, Court Services and Offender Supervision

Agency for the District of Columbia, et al., Defendants.

No. Civ.A. 04-448(RBW). | March 21, 2005.

MEMORANDUM OPINION

WALTON, District Judge.The plaintiff brings this action alleging that the DNA Analysis Backlog Elimination Act of 2000, 42 U.S.C. § 14135b, (“the DNA Act”) and D.C.Code § 22-4151, which was enacted by the District of Columbia to implement in the District of Columbia the objectives of the DNA Act, violate the Fourth Amendment to the United States Constitution

I. Background

(A) Statutory HistoryUnder the Violent Crime Control and Law Enforcement Act of 1994 (“1994 Act”), 42 U.S.C. § 14132, “Congress authorized the FBI to create a national index of [deoxyribonucleic acid (“DNA”) ] samples taken from convicted offenders, crime scenes and victims of crime, and unidentified human remains.” H.R.Rep. No. 106-900 at 8 (2000). In response to this congressional mandate, the FBI established the Combined DNA Index System (“CODIS”). *83 Id. The CODIS database provides a means for State and local forensic laboratories to share DNA profiles in an attempt to “link evidence from crime scenes for which there are no suspects to DNA samples of convicted offenders on file in the system.” Id. However, the 1994 Act was interpreted by the FBI to only permit the creation of the CODIS, not the taking of DNA samples of persons convicted of federal offenses for input into the system. Id. Thus, “the FBI requested that Congress enact statutory authority to allow the taking of DNA samples from

persons committing Federal crimes of violence, robbery, and burglary, or similar crimes in the District of Columbia or while in the military, and authorizing them to be included in CODIS.” Id. Accordingly, Congress passed the DNA Analysis Backlog Elimination Act of 2000 (“DNA Act”), 42 U.S.C. § 14135 et seq., which authorizes the “Attorney General to make grants to eligible States ... to carry out, for the inclusion in the Combined DNA Index System of the Federal Bureau of Investigation, DNA analyses of samples taken from individuals convicted of a qualifying State offenses.” 42 U.S.C. § 14135(a)(1). Moreover, the DNA Act provides that “[t]he Director of the Bureau of Prisons shall collect a DNA sample from each individual in the custody of the Bureau of Prisons who is, or has been, convicted of a qualifying Federal offense” and that “the probation office responsible for the supervision under Federal law of an individual on probation, parole, or supervised release shall collect a DNA sample from each such individual who is or has been, convicted of a qualifying Federal offense.” 42 U.S.C. § 14135a(a)(1)-(2). In addition, Congress has mandated the collection of DNA samples from “each individual in the custody of the Bureau of Prisons who is, or has been convicted of a qualifying District of Columbia offense” or any “individual under the supervision of the Agency who is on supervised release, parole, or probation who is, or has been convicted of a qualifying District of Columbia offense.” 42 U.S.C. § 14135b(a)(1)-(2). Congress left to the District of Columbia the responsibility of determining which offenses under the District of Columbia Code should be deemed qualifying offenses. 42 U.S.C. § 14135b(d). The District of Columbia has determined that forty-nine separate offenses qualify for collection under the DNA Act. See, D.C.Code § 22-4151(1)-(46). These qualifying offenses include, for example, arson, aggravated assault, burglary, kidnapping, robbery, attempted robbery and carjacking. Id. Once a DNA sample is entered into the CODIS database, the information can only be released (1) “to criminal justice agencies for law enforcement identification purposes;” (2) “in judicial proceedings;” (3) “for criminal defense purposes, to a defendant, who shall have access to samples




and analyses performed in connection with the case in which such defendant is charged;” or (4) “if personally identifiable information is removed, for a population statistics database, for identification research and protocol development purposes, or for quality control purposes.” 42 U.S.C. § 14132(b)(3). In addition, the DNA Act imposes criminal penalties for individuals who improperly disclose sample results or improperly obtains or uses DNA samples. 42 U.S.C. § 14135e(c).

(B) Factual BackgroundOn December 20, 2001, the plaintiff, Lamar Johnson, was convicted in the Superior *84 Court of the District of Columbia of two counts of unarmed robbery in violation of D.C.Code § 22-2801. Compl. ¶ 4. On March 15, 2002, the plaintiff was sentenced to a one year prison sentence and placed on two years supervised release for each conviction. Id. However, execution of both sentences were suspended and the plaintiff was placed on two years probation for each offense, which were designated to run concurrently. Id. On or around February 18, 2004, prior to the expiration of the plaintiff’s probationary term, the defendants, pursuant to the DNA Act and D.C.Code § 22-4151, demanded that the plaintiff provide a sample of his DNA for inclusion in the CODIS because he had been convicted of a predicate offense. Id. ¶ 9; see also Compl., Ex. A; D.C.Code § 22-4151(27) (listing violations of D.C.Code § 22-2801 (robbery) as a qualifying offense). The plaintiff refused to provide a DNA sample, and a judge of the Superior Court of the District of Columbia ordered the plaintiff to show cause why his probation should not be revoked because of this refusal. Compl., Ex. B (Show Cause Order signed by Judge Campbell, Associate Judge of the Superior Court of the District of Columbia). On March 18, 2004, the plaintiff filed a complaint in this Court, seeking a temporary restraining order (“TRO”) to prevent the defendants from requiring that he provide a DNA sample. Motion for a Temporary Restraining Order at 1. Before this Court could resolve the TRO, the parties filed a Motion to Resolve Certain Preliminary Matters, which proposed to resolve the need for emergency injunctive relief. In the motion, the plaintiff agreed

to provide a blood sample to the defendants, and the defendants agreed to delay processing that sample until after the plaintiff’s claims in this action and any subsequent appeals had been resolved. The motion was granted by this Court and the motion for a TRO was denied. The parties then filed their papers which are the subject of this opinion.

***

III. Legal AnalysisThe plaintiff’s complaint sets forth seven claims. Compl. ¶¶ 14-20. These claims assert that it is illegal to demand the plaintiff’s DNA while he was on probation, but that it is also illegal for the defendants to retain the plaintiff’s DNA sample and any information derived from the sample now that he has completed his probationary term. The Court begins its analysis by discussing whether the DNA Act and D.C.Code § 22-4151 violate any constitutional or statutory rights of the plaintiff while he was on probation. The Court will conclude with a discussion of whether the plaintiff, now that he has completed his probationary term, has a right to have his DNA sample and analysis thereof expunged from the CODIS system. As discussed more fully below, none of the plaintiff’s claims have merit.

(A) Fourth Amendment ClaimThe plaintiff first contends that the DNA Act and D.C.Code § 22-4151 violate the Fourth Amendment’s guarantee to be free from unreasonable searches and seizures. Compl. ¶ 14. The Fourth Amendment provides that “[t]he 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.” U.S. Const. amend. IV. It is not disputed that the involuntary taking of a DNA sample is a search under the Fourth Amendment. See Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602, 618, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989) (“the collection and subsequent analysis of the requisite biological samples must be deemed Fourth Amendment searches”). Moreover, it is undisputed that a warrant was never issued




requiring the plaintiff to provide a DNA sample. Accordingly, the focus of this Court’s inquiry regarding the plaintiff’s Fourth Amendment claim is whether the statutory requirement that he provide the sample is reasonable or falls within one of the Amendment’s exceptions to the warrant-and-probable cause requirements. In a recent case substantially analogous to the case at hand, the Ninth Circuit sitting en banc, provided an exhaustive overview of the law in this area. United States v. Kincade, 379 F.3d 813, 822-830 (9th Cir.2004) (en banc). While this Court need not engage in the same extensive overview, it is helpful to this Court’s analysis to briefly review recent developments in Fourth Amendment jurisprudence. “The touchstone of the Fourth Amendment is reasonableness, and the reasonableness of a search is determined ‘by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.’ ” *86 United States v. Knights, 534 U.S. 112, 118-19, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001) (quoting Wyoming v. Houghton, 526 U.S. 295, 300, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999)). In addition to this fundamental assessment of reasonableness based on the totality of the circumstances, there are a number of exceptions to the warrant-and-probable cause requirements of the Fourth Amendment. Kincade, 379 F.3d at 822. The Ninth Circuit in Kincade labeled the first of these exceptions as “exempted areas,” which includes searches at the borders, airports, and entrances to government buildings. Id. The second exception encompasses “administrative searches,” which includes inspections of closely-regulated businesses. Id. at 823. And finally, there is a “special needs” exception to the warrant-and-probable cause requirement. Cases involving this third exception “involve searches conducted for important non-law enforcement purposes in contexts where adherence to the warrant-and-probable cause requirement would be impracticable.” Id. Thus, the question this Court must answer is whether the search and seizure at issue in this case (the taking of a DNA sample from a qualifying convicted felon) falls under one of these exceptions to the warrant clause of the Fourth Amendment or whether, based on the totality of the circumstances, it is reasonable.

While the issue presented to the Court is one of first impression in this Circuit, many other Federal Circuit, Federal District and state courts throughout the country have weighed in on this issue and have resoundingly concluded that the DNA Act and similar analogous state statutes do not violate the Fourth Amendment’s protection against unreasonable searches and seizures. In Kincade, the Ninth Circuit, sitting en banc, held that the DNA Act did not violate the Fourth Amendment. Kincade, 379 F.3d at 840. However, as the Ninth Circuit noted in Kincade, courts are split as to the proper analytical framework to apply in resolving this question. One set of courts, including the Ninth Circuit, have applied the traditional totality of the circumstances analysis to assess reasonableness and have concluded that the DNA Act (and similar state statutes) are constitutional. See Kincade, 379 F.3d at 831 (citing over twenty cases in which an assessment of the totality of the circumstances was utilized). On the other hand, other courts have upheld the constitutionality of the DNA Act (and similar *87 state statutes) under a “special needs” analysis. See Kincade, 379 F.3d at 830-31 (citing twelve cases in which a special needs assessment was utilized). While this Court believes that the DNA Act can be upheld under either analysis, for the reasons articulated by the Ninth Circuit in Kincade, this Court believes, as do a majority of other courts which have examined this issue, that the traditional totality of the circumstances analysis is the more appropriate legal framework under which to analyze this question. To gauge the reasonableness of requiring the plaintiff to provide a DNA sample under the totality of the circumstances standard, the Court must balance the plaintiff’s privacy interest against the public interests served by acquiring the sample. The Court begins its analysis by first assessing the plaintiff’s privacy interests implicated by this search. Knights, 534 U.S. at 119, 122 S.Ct. 587. The District of Columbia Circuit has noted that “[t]he protections of the Fourth Amendment are graduated in proportion to the privacy interests affected. Decreasing levels of intrusiveness require decreasing levels of justification.” Willner v. Thornburgh, 928 F.2d 1185, 1188 (D.C.Cir.1991). It is settled law that individuals on probation, just




like parolees and other conditionally released criminal offenders, “are not entitled to the full panoply of rights and protections possessed by the general public.” (Kincade, 379 F.3d at 833; Pa. Bd. of Prob. & Parole v. Scott, 524 U.S. 357, 365, 118 S.Ct. 2014, 141 L.Ed.2d 344 (1998)). In fact, the Supreme Court has held that individuals on conditional release have “only ... conditional liberty properly dependent on observances of special parole restrictions” that extend “substantially beyond the ordinary restrictions imposed by law on an individual citizen.” Morrissey v. Brewer, 408 U.S. 471, 478, 480, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). These type of restrictions “are meant to assure that the [conditional release terms] serve as a period of genuine rehabilitation and that the community is not harmed by the [releasee]’s being at large. These same goals require and justify the exercise of supervision to assure that the restrictions are in fact observed.” Griffin v. Wisconsin, 483 U.S. 868, 875, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987). Accordingly, “the Supreme Court ... has noted that conditional releasees enjoy severely constricted expectations of privacy relative to the general citizenry-and that the government has a far more substantial interest in invading their privacy than it does in interfering with the liberty of law-abiding citizens” Kincade, 379 F.3d at 834 (citing Knights, 534 U.S. at 119-20, 122 S.Ct. 587; Ferguson v. City of Charleston, 532 U.S. 67, 79 n. 15, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001); Griffin, 483 U.S. at 874-75, 107 S.Ct. 3164). *88 In this case, the plaintiff claims a privacy interest in the “detailed personal information obtainable from a DNA sample.” Pl.’s Opp’n at 13. In its simplest form, the plaintiff asserts a privacy interest in his identity. Kincade, 379 F.3d at 837 (a DNA sample taken from a probationer merely establishes a record of the plaintiff’s identity). However, as discussed above, the plaintiff, at least during the time he was on probation, had a diminished expectation of privacy. Thus, while he does have a privacy interest in his identity, his interest does not have the same status as that of an individual who has never been convicted of a qualifying offense as classified by the DNA Act and the District of Columbia Code. Moreover, courts have routinely held, and this Court finds no

compelling reason to deviate from these holdings, that “[o]nce a person is convicted of one of the felonies included as a predicate offense under [the DNA Act], his identity has become a matter of state interest and he has lost any legitimate expectation of privacy in the identifying information derived from blood sampling.” Rise v. Oregon, 59 F.3d 1556, 1560 (9th Cir.1995); Groceman v. Dep’t of Justice, 354 F.3d 411, 413-14 (5th Cir.2004); Jones v. Murray, 962 F.2d 302, 306-07 (4th Cir.1992). The Court’s next step is to examine the public interest prong of the totality of the circumstances test. In this case, it is clear that the DNA Act and D.C.Code § 22-4151 further a compelling public interest. First, DNA profiling can link conditionally released offenders to crimes committed while on release, which helps to ensure that such individuals comply with the requirements of the their conditional release. Scott, 524 U.S. at 365, 118 S.Ct. 2014. It is well-settled that rates of recidivism among parolees and probationers is high and DNA testing can deter such individuals from engaging in further illegal conduct knowing that they might be identified by DNA. Scott, 524 U.S. at 365, 118 S.Ct. 2014; Knights, 534 U.S. at 120, 122 S.Ct. 587; Griffin, 483 U.S. at 875, 107 S.Ct. 3164; United States v. Crawford, 372 F.3d 1048, 1069-70 (9th Cir.2004) (Trott, J., concurring). Moreover, in addition to helping solve crimes that may occur in the future, DNA profiling may help resolve past crimes and “help[ ] bring closure to countless victims of crime who long have languished in the knowledge that perpetrators remain at large.” Kincade, 379 F.3d at 839. This Court agrees with the Ninth Circuit that “the weight of these interests in monumental.” Id. Balancing the private and public interests here, it is clear that the public’s interests *89 far outweigh the plaintiff’s interest and thus the taking of his DNA sample does not violate the Fourth Amendment, especially in light of the fact that the plaintiff, while he was on probation, has a diminished expectation of privacy. In addition, the Court notes that the actual physical intrusion in securing a DNA sample is minimal. The Supreme Court concluded long ago that “the intrusion occasioned by a blood test is not significant, since




such ‘tests are a commonplace in these days of periodic physical examinations and experience with them teaches that the quantity of blood extracted is minimal, and that for most people the procedure involves virtually no risk, trauma, or pain.’ ” Skinner, 489 U.S. at 625, 109 S.Ct. 1402 (quoting Schmerber v. California, 384 U.S. 757, 771, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966)). Moreover, the DNA Act applies only to anyone who has been convicted of one of the predicate offenses and there is no discretion regarding who is selected for DNA sampling. “By ensuring that blood extractions will not be ordered randomly or for illegitimate purposes, [the DNA Act] fulfills a principal purpose of the warrant requirement.” Rise, 59 F.3d at 1562. This reason further supports the finding that searches and seizures conducted pursuant to the DNA Act are reasonable. In conclusion, it is the Court’s view that upon weighing the individual privacy rights of the plaintiff against the compelling public interest as discussed above, that the totality of the circumstances favor the defendants’ side of the totality of the circumstances analysis, and therefore, the plaintiff’s Fourth Amendment challenge to the DNA Act and D.C.Code § 22-4151 must be rejected.

*** This Court cannot buy in on the conclusion reached by the New Jersey Superior Court. At the outset, the Court does not find the forfeiture analogy employed by the New Jersey court persuasive. Specifically, this Court does not believe that a DNA sample is akin to a right in property. The interest here is a privacy interest in identification information. As the Ninth Circuit recognized, a DNA sample “establishes only a record of the defendant’s identity-otherwise personal information in which the qualified offender can claim no right of privacy once lawfully convicted of a qualifying offense.” Kincade, 379 F.3d at 837. This Court does not believe that an identification record is similar, in any respect, to an interest in property. Rather, to determine whether an individual’s DNA profile must be expunged after that individual’s sentence has been completed, this Court must, as Judge Gould posited, balance the individual’s privacy interest with the public’s

interest in maintaining the records.

***VI. Conclusion

For the foregoing reasons, all of the plaintiff’s claims are without merit and must be dismissed. SO ORDERED this day of 21st day of March, 2005.




End of Document © 2013 Thomson Reuters. No claim to original U.S. Government

Works.



Anderson v. Com., 274 Va. 469 (2007)650 S.E.2d 702

274 Va. 469Supreme Court of Virginia.

Angel M. ANDERSONv.

COMMONWEALTH of Virginia.Record No. 062051. | Sept. 14, 2007.

Opinion

OPINION BY Justice DONALD W. LEMONS.

*472 In this appeal, we consider whether pursuant to Code § 19.2–310.2:1, the taking of a person’s DNA upon arrest for certain crimes constitutes an unconstitutional seizure.

I. Facts and Proceedings Below

On July 23, 1991, Laura M. Berry (“Berry”) was raped, sodomized, and robbed while walking to the school where she worked. After the attack, Berry walked to the school **704 and notified police. Berry was taken to the hospital where Detective Steven G. Milefsky (“Milefsky”) took her statement. Dr. Val Chapman (“Dr.Chapman”) examined Berry and used a physical evidence recovery kit (“PERK”) to collect specimens for evidence. Dr. Chapman then gave the PERK to Milefsky. Milefsky took the PERK he received from Dr. Chapman to the Virginia Forensic Laboratory in Fairfax County (the “laboratory”) and gave the PERK to a clerk at the laboratory. On July 25, 1991, Karen C. Ambrozy (“Ambrozy”), a forensic scientist employed by the Commonwealth of Virginia’s Division of Forensic Science obtained the PERK. Ambrozy received the PERK from another person working in the laboratory’s forensic biology section. Ambrozy analyzed and conducted DNA analysis on vaginal swabs contained in the PERK. On January 9, 1992, Milefsky picked the PERK up from a clerk at the laboratory and returned it to the Fairfax County police property room (the “police property room”). In 2001, Milefsky took the PERK to the laboratory and again left it with one of the laboratory clerks. During the time the PERK was at the laboratory in 2001, Ambrozy conducted more DNA analysis. As

part of the process, Kari Yoshida (“Yoshida”), a laboratory technician, prepared the product gel as part of the process for Ambrozy to determine if she had obtained any amplified DNA. Then, on September 4, 2001, Milefsky picked the PERK up from the laboratory and returned it to the police property room. From 1991 to 2003, Berry’s case was not investigated. In early 2003, Angel M. Anderson (“Anderson”) was arrested in Stafford *473 County on unrelated charges of rape and sodomy. Pursuant to Code § 19.2–310.2:1, a sample of Anderson’s DNA was taken upon his arrest and entered into a DNA databank. Upon entry into the DNA databank, a routine analysis resulted in a “cold hit” that appeared to match Angel’s DNA to that found in Berry’s PERK. In December of 2003, Milefsky received a certificate of analysis from the laboratory preliminarily identifying Anderson as a possible suspect in Berry’s attack. As a result of the investigative lead provided by the certificate of analysis, on January 6, 2004, Milefsky went to Stafford County to serve Anderson with a search warrant. The search warrant permitted a sample of Anderson’s DNA to be obtained “by means of buccal (cheek) swabs in sufficient quantity to obtain laboratory results.” Pursuant to the search warrant, Milefsky obtained two buccal swabs from Anderson and took them to the laboratory along with Berry’s PERK. Ambrozy compared the buccal swabs taken from Anderson with the DNA found in the PERK. Milefsky then received a certificate of analysis prepared by Ambrozy which stated that the sperm fraction from the vaginal swabs taken from Berry were “consistent with the DNA profile of Angel M. Anderson.” On March 15, 2004, the case was presented to the grand jury which indicted Anderson for the rape, robbery, and sodomy of Berry. At trial, a jury found Anderson guilty on all counts, and the trial court imposed the recommended two life terms plus ten years. Anderson appealed to the Court of Appeals, where his convictions were affirmed. Anderson v. Commonwealth, 48 Va.App. 704, 718, 634 S.E.2d 372, 379 (2006). Anderson appeals to




this Court upon an assignment of error:

1. The Court of Appeals erred when [it] held that it is not a Constitutional violation to seize Mr. Anderson’s DNA, pursuant to Va.Code § 19.2–310.2:1, upon arrest for an unrelated felony.

*474 II. Analysis

A. The DNA Sample

Anderson first argues that the Court of Appeals erred when it held that it was not a constitutional violation to seize Anderson’s DNA, pursuant to Code § 19.2–310.2:1, upon arrest for an unrelated felony.

This Court as well as the United States Court of Appeals for the Fourth Circuit has held that Code § 19.2–310.2, requiring a convicted felon to provide a blood, saliva, or tissue sample for DNA analysis, does not violate the Fourth Amendment. Jones v. Murray, 962 F.2d 302, 308 (4th Cir.1992); Johnson v. Commonwealth, 259 Va. 654, 672, 529 S.E.2d 769, 779 (2000). While Code § 19.2–310.2:1 requires a DNA sample after an arrest for specific offenses, as opposed to a conviction, like Code § 19.2–310.2, it too does not violate the Fourth Amendment. Upon arrest, the accused is subjected to a routine booking process, including the taking of fingerprints. A DNA sample of the accused taken upon arrest, while more revealing, is no different in character than acquiring fingerprints upon arrest.

[W]hen a suspect is arrested upon probable cause, his identification becomes a matter of legitimate state interest and he can hardly claim privacy in it. We accept this proposition because the identification of suspects is relevant not only to solving the crime for which the suspect is arrested, but also for maintaining a permanent record to solve other past and future crimes. This becomes readily apparent when we consider the universal approbation of “booking” procedures that are followed for every suspect arrested for a felony, whether or not the proof of a particular suspect’s crime will involve the

use of fingerprint identification.

*475 Jones, 962 F.2d at 306. Like fingerprinting, the “Fourth Amendment does not require an additional finding of individualized suspicion” before a DNA sample can be taken. Id. at 306–07. The analogous treatment of the taking of DNA samples to the taking of fingerprints has been widely accepted. In addition to the Fourth Circuit in the Jones case, the Second Circuit held “[t]he collection and maintenance of DNA information, while effected through relatively more intrusive procedures such as blood draws or buccal cheek swabs, in our view plays the same role as fingerprinting.” Nicholas v. Goord, 430 F.3d 652, 671 (2d Cir.2005), cert. denied, 549 U.S. 953, 127 S.Ct. 384, 166 L.Ed.2d 270 (2006). The Third Circuit held that “[t]he governmental justification for [DNA] identification ... relies on no argument different in kind from that traditionally advanced for taking fingerprints and photographs, but with additional force because of the potentially greater precision of DNA sampling and matching methods.” United States v. Sczubelek, 402 F.3d 175, 185–86 (3d Cir.2005), cert. denied, 548 U.S. 919, 126 S.Ct. 2930, 165 L.Ed.2d 977 (2006). The Ninth Circuit said “[t]hat the gathering of DNA information requires the drawing of blood rather than inking and rolling a person’s fingertips does not elevate the intrusion upon the plaintiffs’ Fourth Amendment interests to a level beyond minimal.” Rise v. State, 59 F.3d 1556, 1560 (9th Cir.1995). Some state appellate courts have also concluded that DNA samples should be treated like fingerprints. See State v. Raines, 383 Md. 1, 857 A.2d 19, 33 (2004) (“The purpose [of the DNA profile] is akin to that of a fingerprint. As such, appellee and other incarcerated individuals have little, if any, expectation of privacy in their identity.”); State v. O’Hagen, 189 N.J. 140, 914 A.2d 267, 280 (2007) (“We harbor no doubt that the taking of a buccal cheek swab is a very minor physical intrusion upon the person.... [T]hat intrusion is no more intrusive than the fingerprint procedure and the taking of one’s photograph that a person must already undergo as part of the normal arrest process.”); and State v. Brown, 212 Or.App. 164, 157 P.3d 301, 303 (2007) (“Because [using a




swab to take a DNA sample from the mucous membrane of an arrestee’s cheek] is akin to the fingerprinting of a person in custody, we conclude that the seizure of defendant’s DNA did not constitute an unreasonable seizure under [the Constitution.]”). **706 Fingerprinting an arrested suspect has long been considered a part of the routine booking process. Similarly, the taking of a DNA sample by minimally intrusive means “is justified by the legitimate interest *476 of the government in knowing for an absolute certainty the identity of the person arrested, in knowing whether he is wanted elsewhere, and in ensuring his identification in the event he flees prosecution.” 3 Wayne R. LaFave, Search and Seizure § 5.3(c), at 168 (4th ed.2004). Anderson argues that the saliva samples taken from him upon his arrest in Stafford County led to the “cold hit” implicating him in the offenses involved in this appeal. He maintains that the taking of saliva was a “suspicionless” seizure contrary to the Fourth Amendment and that all evidence flowing from such a search must be suppressed as “fruit of the poisonous tree.” Wong Sun v. United States, 371 U.S. 471, 484–85, 83 S.Ct. 407, 9 L.Ed.2d 441 (1963). In support of his argument, Anderson cites City of Indianapolis v. Edmond, 531 U.S. 32, 47, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000), wherein the Supreme Court of the United States held that “[w]hen law enforcement authorities pursue primarily general crime control purposes at checkpoints ... stops can only be justified by some quantum of individualized suspicion.” Further, Anderson relies upon Ferguson v. City of Charleston, 532 U.S. 67, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001), for the proposition that searches conducted for general law enforcement purposes cannot be excepted from requirements of probable cause. Ferguson involved a cooperative program between hospital authorities and law enforcement officers to gather evidence of pregnant women using illegal drugs. Id. at 69–73, 121 S.Ct. 1281. The analysis used by the Court

focused upon a line of cases comprising the so-called “special needs doctrine” justifying suspicionless searches in narrowly defined circumstances. The Court, in Ferguson, rejected the argument that the cooperative program between hospital personnel and law enforcement officers met the test of the “special needs doctrine.” Id. at 84, 121 S.Ct. 1281. Anderson’s reliance upon Edmond and Ferguson is misplaced. As previously established, the taking of a DNA sample pursuant to § 19.2–310.2:1 is permissible as a part of routine booking procedures. *477 As such, no “ additional finding of individualized suspicion” much less probable cause, must be established before the sample may be obtained. Jones, 962 F.2d at 306. In Jones, the court held that pursuant to Code § 19.2–310.2 “in the case of convicted felons who are in custody of the Commonwealth, ... the minor intrusion caused by the taking of a[DNA] sample is outweighed by Virginia’s interest ... in determining inmates’ ‘identification characteristics specific to the person’ for improved law enforcement.” 962 F.2d at 307. We hold that the same rationale holds true for persons “arrested for the commission or attempted commission of a violent felony” under Code § 19.2–310.2:1. In conclusion, we hold that the taking of Anderson’s DNA sample upon arrest in Stafford County pursuant to Code § 19.2–310.2:1 is analogous to the taking of a suspect’s fingerprints upon arrest and was not an unlawful search under the Fourth Amendment.

III. ConclusionFor the reasons stated, we will affirm the judgment of the Court of Appeals. Affirmed.

Parallel Citations650 S.E.2d 702




652 F.3d 387United States Court of Appeals,

Third Circuit.

UNITED STATES of America, Appellant

v.Ruben MITCHELL.

No. 09–4718. | Argued Feb. 23, 2011. | Opinion Filed: July 25, 2011.

FUENTES, Circuit Judge, with whom Circuit Judges SLOVITER, SCIRICA, SMITH, FISHER, CHAGARES, JORDAN, and HARDIMAN, join, and AMBRO joins as to Part III only.

Ruben Mitchell was indicted on one count of attempted possession with intent to distribute cocaine. Following Mitchell’s indictment, arrest, and detention, the Government sought to collect a DNA sample. The Government relied on 42 U.S.C. § 14135a(a)(1)(A), which permits the collection of DNA samples from “individuals who are arrested, facing charges, or convicted.” Mitchell objected, arguing that the statute violated the Fourth Amendment. Agreeing with Mitchell, the District Court concluded that the statute was unconstitutional and prohibited the Government from taking a DNA sample from Mitchell prior to conviction. *390 We apply a “totality of the circumstances” test, balancing the intrusion on Mitchell’s privacy against the Government’s interest in the collection and testing of his DNA. United States v. Knights, 534 U.S. 112, 118–19, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001). As arrestees have a diminished expectation of privacy in their identities, and DNA collection from arrestees serves important law enforcement interests, we conclude that such collection is reasonable and does not violate the Fourth Amendment. Accordingly, we will reverse.

I.Mitchell was indicted on a single count of attempted possession with intent to distribute five or more kilograms of cocaine, in violation of 21 U.S.C. § 846. Thereafter, he was arrested and placed in pretrial detention. At Mitchell’s initial appearance before a Magistrate Judge, the Government sought to collect a sample of

Mitchell’s DNA1 pursuant to 42 U.S.C. § 14135a(a)(1)(A). The statute, as amended in 2006, permits the collection of DNA samples from “individuals who are arrested, facing charges, or convicted.” 42 U.S.C. § 14135a(a)(1)(A). Mitchell objected, arguing that the statute violated the Fourth Amendment; the Magistrate Judge ordered briefing and stayed the collection of Mitchell’s DNA pending resolution by the District Court. Prior to the resolution of the DNA issue, the District Court held a detention hearing and detained Mitchell pending trial.

FN 1. “DNA stands for deoxyribonucleic acid. DNA molecules carry the genetic information of human beings. DNA is unique to each individual, except in the case of identical twins.” United States v. Sczubelek, 402 F.3d 175, 181 n. 2 (3d Cir.2005).

In a Memorandum Opinion, the District Court held that § 14135a(a)(1)(A) and its implementing regulation violate the Fourth Amendment insofar as they permit the warrantless collection of DNA from individuals who have not been convicted of a crime. Applying a “totality of the circumstances” analysis, the District Court assessed “ ‘on the one hand, the degree to which [the DNA collection] intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.’ ” Samson v. California, 547 U.S. 843, 848, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006) (quoting Knights, 534 U.S. at 118–19, 122 S.Ct. 587). Considering Mitchell’s status as an arrestee and a pretrial detainee, the District Court held that “Mitchell has a diminished expectation of privacy in his identity” and thus may be subjected to routine booking procedures such as fingerprinting. United States v. Mitchell, 681 F.Supp.2d 597, 608 (W.D.Pa.2009). Nevertheless, the District Court declined to equate “the fingerprinting process and the resulting identification information obtained therefrom with DNA profiling” given “the complex, comprehensive, inherently private information contained in a DNA sample.” Id. “The extraction of DNA,” the District Court reasoned, “is much more than a mere progression [from] taking fingerprints and photographs[;] it represents a quantum leap that is entirely unnecessary for




identification purposes.” Id. at 608–09. As a result, the District Court concluded that while taking the DNA sample “may not be unreasonably intrusive, the search of the sample is quite intrusive, severely affecting Mitchell’s expectation *391 of privacy in his most intimate matters.” Id. at 609. With respect to the Government’s interests, the District Court determined that there was no compelling need to take Mitchell’s DNA sample for identification purposes. While collecting DNA also serves investigative purposes, “there [was] no exigency that support[ed] the collection of DNA from an arrestee or pretrial detainee” as opposed to waiting until after a conviction or obtaining a proper search warrant. Id. at 610. Accordingly, weighing Mitchell’s privacy interests against the Government’s legitimate interests, the District Court concluded that the universal collection of DNA samples from arrestees and pretrial detainees was unreasonable and thus violated the Fourth Amendment. In the accompanying Order, the District Court prohibited the Government from collecting a DNA sample from Mitchell “until such time as he has been convicted of the offense set forth in the indictment.” Id. at 611. The Government sought reconsideration, which was denied. This appeal addresses whether the collection of DNA from arrestees and pretrial detainees violates the Fourth Amendment.

***A. The DNA Act

The statute challenged by Mitchell is the latest and most far-reaching version of the *399 DNA Act. In 1994, Congress passed the Violent Crime Control and Law Enforcement Act (“Crime Control Act”), Pub.L. No. 103–322, 108 Stat. 1796 (codified as amended at 42 U.S.C. §§ 13701–14223), which authorized the Federal Bureau of Investigation (“FBI”) to establish an index of DNA samples. Pursuant to this authority, the FBI created the Combined DNA Index System (“CODIS”), which “allows State and local forensics laboratories to exchange and compare DNA profiles electronically in an attempt to link evidence from crime scenes for which there are no suspects to DNA samples of

convicted offenders on file in the system.” H.R. Rep. 106–900(I), at 8 (2000), reprinted in 2000 U.S.C.C.A.N. 2323, 2324. Thereafter, in 2000, Congress enacted the DNA Act, which required the collection of a DNA sample “from each individual in the custody of the Bureau of Prisons who is, or has been, convicted of a qualifying Federal offense” and from each “individual on probation, parole, or supervised release.” Pub.L. No. 106–546, § 3(a)(1) & (2), 114 Stat. 2726, 2728 (codified as amended at 42 U.S.C. § 14135a(a)(1) & (2)). Pursuant to the DNA Act, “[t]he Attorney General, the Director of the Bureau of Prisons, or the probation office responsible ... may use or authorize the use of such means as are reasonably necessary to detain, restrain, and collect a DNA sample from an individual who refuses to cooperate in the collection of the sample.” 42 U.S.C. § 14135a(a)(4)(A). Moreover, “[a]n individual from whom the collection of a DNA sample is authorized under this subsection who fails to cooperate in the collection of that sample shall be ... guilty of a class A misdemeanor.” Id. § 14135a(a)(5)(A). Once the DNA sample is collected, the collection kit is forwarded to the FBI for analysis and inclusion in CODIS. Id. § 14135a(b). The DNA Act includes a number of safeguards to prevent the improper use of DNA samples. First, the Act explicitly restricts the use of DNA test results to the purposes specified in the Crime Control Act. Id. § 14135e(b).

Second, pursuant to the DNA Act, “a[ny] person who knowingly discloses a sample or [DNA] result ... in any manner to any person not authorized to receive it, or obtains or uses, without authorization, such sample or result” is punishable by a fine of up to $250,000 or imprisonment for a period of up to one year. Id. § 14135e(c). Moreover, each unlawful disclosure of the sample or result is punishable as a “separate offense.” Id. Under the Crime Control Act, failure to comply with “the quality control and privacy requirements” can result in cancellation of access to CODIS. Id. § 14132(c). In addition, the Crime Control Act requires the Director of the FBI to expunge the DNA record from CODIS when a conviction is overturned or when, if the sample is




taken following an arrest, the charge is dismissed or results in an acquittal or no charge is timely filed. Id. § 14132(d)(1)(A). Expungement requires that the FBI receive a certified copy of a final court order establishing the final disposition of the arrest or conviction. See id. *400 Additionally, “[n]o names or other personal identifiers of the offenders, arrestees, or detainees are stored.” Federal Bureau of Investigation, CODIS and NDIS Fact Sheet, available at http://www.fbi.gov/about-us/lab/codis/codis-and-ndis-fact-sheet (last visited July 8, 2011).

In practice, the FBI has developed a consistent policy of analyzing only what is commonly called “junk DNA.” “Junk DNA” refers to “non-genic stretches of DNA not presently recognized as being responsible for trait coding.” United States v. Kincade, 379 F.3d 813, 818 (9th Cir.2004) (en banc) (plurality op.). By using only so-called “junk DNA” to create the profile, the Government ensures that meaningful personal genetic information about the individual is not published in CODIS.

Effectively, the use of “junk DNA” creates a “DNA fingerprint” that yields precise information about identity but little or no other personal information. As stated in the House Report:

DNA profiles generated in conformity with the national standards do not reveal information relating to any medical condition or other trait. By design, the effect of the system is to provide a kind of genetic fingerprint, which uniquely identifies an individual, but does not provide a basis for determining or inferring anything else about the person.

In 2005 and 2006, Congress expanded the categories of individuals subject to DNA collection. In its present form, the DNA Act allows the Attorney General to “collect DNA samples from individuals who are arrested, facing charges, or convicted.” 42 U.S.C. § 14135a(a)(1)(A). *402 The DNA Act and its state-law analogues have been subject to numerous constitutional

challenges, generally on the ground that DNA collection and analysis is an unreasonable search in violation of the Fourth Amendment. Every federal circuit court to have considered these statutes as applied to an individual who has been convicted and is either incarcerated or on probation, parole, or supervised release has upheld the constitutionality of the challenged statute. The Ninth Circuit, the only other Court of Appeals to have considered whether the statute is constitutional as applied to arrestees or pretrial detainees, initially upheld the expanded version of the DNA Act. United States v. Pool, 621 F.3d 1213, 1219–24 (9th Cir.2010) (concluding that under the totality of the circumstances test, collection of DNA samples under the DNA Fingerprint Act from a defendant who has been indicted, arrested, and detained for a federal felony but not yet convicted complies with the Fourth Amendment), though it has since withdrawn the panel opinions in anticipation of en banc review.

B. Analytical Framework Prior to Congress’s 2005 and 2006 expansions of the DNA Act, every circuit court to have considered the constitutionality of a DNA indexing statute upheld the statute under the Fourth Amendment. Nevertheless, the circuits have divided regarding the correct method of Fourth *403 Amendment analysis. We and the majority of circuits—the First, Fourth, Fifth, Sixth, Eighth, Ninth, Eleventh, and District of Columbia—have endorsed a totality of the circumstances approach. See Weikert, 504 F.3d at 9–11; Sczubelek, 402 F.3d at 184; Jones, 962 F.2d at 306–08; Groceman, 354 F.3d at 413; Wilson v. Collins, 517 F.3d 421, 427 (6th Cir.2008); Kraklio, 451 F.3d at 924; Kriesel, 508 F.3d at 946; Padgett v. Donald, 401 F.3d 1273, 1278 n. 4 (11th Cir.2005); Johnson v. Quander, 440 F.3d 489, 494 n. 1, 496 (D.C.Cir.2006).

The Supreme Court has “described ‘the balancing of competing interests’ as ‘the key principle of the Fourth Amendment.’ ” Tennessee v. Garner, 471 U.S. 1, 8, 105 S.Ct. 1694, 85 L.Ed.2d 1 (1985) (quoting Michigan v. Summers, 452 U.S. 692, 700 n. 12, 101 S.Ct. 2587, 69 L.Ed.2d 340 (1981)) Balancing the totality of the circumstances is the




“general Fourth Amendment approach” used to assess the reasonableness of a contested search. Knights, 534 U.S. at 118, 122 S.Ct. 587. As such, we apply the totality of the circumstances test to the present challenge to the latest iteration of the DNA Act. 1. Case Law Analyzing DNA Collection Following Conviction

As a starting point, it is useful to examine how the cases upholding DNA collection following conviction assessed the totality of the circumstances in concluding that such searches were reasonable. These cases analyzed challenges to the DNA Act and its state-law analogues brought by individuals who were incarcerated following convictions (“prisoners”) or by individuals on probation, parole, or supervised release (collectively, “probationers”). In our case in this category, Sczubelek, we “examine[d] ... the taking of the [DNA] sample under the ... Knights totality of the circumstances test” and concluded *404 that “the taking of a DNA sample from an individual on supervised release is not an unreasonable search.” 402 F.3d at 184. In conducting the Fourth Amendment balancing, we considered a number of factors. “First, the intrusion of a blood test is minimal.” Id. (citing Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 625, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989)). Second, while acknowledging that the “slight intrusion [of a blood test] into an ordinary citizen’s privacy [would be] unconstitutional, individuals on supervised release, like individuals on probation, ‘do not enjoy the absolute liberty to which every citizen is entitled.’ ” Sczubelek, 402 F.3d at 184 (quoting Knights, 534 U.S. at 119, 122 S.Ct. 587 (internal quotation marks & citations omitted)). Considering Sczubelek’s status as an individual who had been convicted of a felony and who was on supervised release, we held that he “ha[d] a reduced right to privacy—and in particular to privacy of identity.... Individuals on supervised release cannot reasonably expect to keep information bearing on their physical identity from government records.” Id. at 184–85. Thus, in assessing “the degree to which [the DNA collection] intrude[d] on [Sczubelek’s] privacy,”

id. at 182 (internal quotation marks & citation omitted), we concluded that “for criminal offenders the privacy interests implicated by the collection of DNA are minimal,” id. at 185. On the other side of the scale, “the degree to which [DNA collection] is needed for the promotion of legitimate governmental interests,” id. at 182 (internal quotation marks & citation omitted), “we agree[d] with the government that it has a compelling interest in the collection of identifying information of criminal offenders,” id. at 185. We reasoned that “[a] DNA database promotes increased accuracy in the investigation and prosecution of criminal cases” and will “aid in solving crimes when they occur in the future,” “help to exculpate individuals who are serving sentences of imprisonment for crimes they did not commit,” and “help to eliminate individuals from suspect lists when crimes occur.” Id. As such, we concluded that “[t]he interest in accurate criminal investigations and prosecutions is a compelling interest that the DNA Act can reasonably be said to advance.” Id. Finally, we considered additional factors that contributed to the reasonableness of the search. Analyzing the prior version of the DNA Act, we held that the Act itself clearly delineates from whom a sample must be taken, leaving no discretion to probation officers. Id. at 187. Moreover, we reasoned, the DNA Act specifies permissible uses for the samples and punishes unauthorized disclosure of DNA samples. Id. It also provides for expungement of the DNA profile from CODIS upon reversal or dismissal of a conviction. Id. Assessing the totality of the circumstances surrounding the collection and analysis of DNA samples from probationers, we concluded:

In view of the importance of the public interests in the collection of DNA samples from criminal offenders for entry into a national DNA database and the degree to which the DNA Act serves to meet those interests, balanced against the minimal




intrusion occasioned by giving a blood sample and the reduced privacy expectations of individuals on supervised release, we conclude that the collection of DNA samples from individuals on supervised release, pursuant to the DNA Act, is not an unreasonable search in violation of the Fourth Amendment.Id.

Our sister circuits have engaged in a very similar analysis, relying in general on the same considerations that informed our decision in Sczubelek. The other circuits have identified some factors that we did *405 not explicitly consider, such as the government’s compelling interest in “contribut[ing] to the solution of past crimes.” Kriesel, 508 F.3d at 949. Ultimately, those courts likewise concluded that the collection of DNA samples from prisoners or probationers is a reasonable search consistent with the Fourth Amendment.

2. Totality of the Circumstances Analysis

The 2006 revision to the DNA Act expanded its scope to encompass both arrestees and pretrial detainees. Violence Against Women & Department of Justice Reauthorization Act of 2005, Pub.L. No. 109–162, § 1004, 119 Stat. 2960, 3085 (codified as amended at 42 U.S.C. § 14135a(a)(1)(A)). Mitchell was placed in pretrial detention following his arrest and was detained at the time that the Government sought to collect a sample of his DNA pursuant to the DNA Act and its implementing regulation. Thus the challenge currently before us implicates the collection of DNA from an individual who is both an arrestee and a pretrial detainee. a. Expectation of Privacy

When we analyze the reasonableness of a search by examining the totality of the circumstances, we begin “ ‘by assessing ... the degree to which [the search] intrudes upon an individual’s privacy.’ ” Knights, 534 U.S. at 118–19, 122 S.Ct. 587 (quoting Houghton, 526 U.S. at 300, 119 S.Ct.

1297). The collection of DNA under § 14135a entails two separate “searches.” The first is the physical collection of the DNA sample. Neither party disputes that the collection of a DNA sample constitutes an invasion of privacy that is subject to the strictures of the Fourth Amendment, and we have so held. See Sczubelek, 402 F.3d at 182 (concluding that giving a required blood sample for DNA analysis is a search); Skinner, 489 U.S. at 616, 109 S.Ct. 1402 (holding that “[w]e have long recognized that a compelled intrusion into the body for blood to be analyzed for alcohol content must be deemed a Fourth Amendment search.... This physical intrusion, penetrating beneath the skin, infringes an expectation of privacy that society is prepared to recognize as reasonable.” (internal quotation marks, citations, & some alterations omitted)). Mitchell contends that the act of collecting a DNA sample “constitute [s] [a] significant invasion[ ] of an individual’s bodily integrity and privacy.” (Mitchell Br. 41.) This argument, however, is foreclosed by binding precedent. The Supreme Court has repeatedly held that the “intrusion occasioned by a blood test is not significant, since such ‘tests are a commonplace in these days of periodic physical examinations and experience with them teaches that the quantity of blood extracted is minimal, and that for most people the procedure involves virtually no risk, trauma, or pain.’ ” Skinner, 489 U.S. at 625, 109 S.Ct. 1402 (quoting Schmerber v. California, 384 U.S. 757, 771, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966)).

Furthermore, the test sanctioned in Schmerber was venipuncture, in which blood was drawn from the arm. 384 U.S. at 759–60, 86 S.Ct. 1826. “[C]urrently the FBI provides kits that allow a blood sample to be collected by means of a finger prick,” a far less invasive procedure. DNA–Sample Collection & Biological Evidence Preservation in the Federal Jurisdiction (“DNA–Sample Collection”), 73 Fed.Reg. 74932, 74935 (Dec. 10, 2008). *407 DNA samples may also be collected by swabbing the inside of the mouth (a “buccal swab”). Id. This method is likewise less invasive than venipuncture. Nicholas v. Goord, 430 F.3d




652, 656 n. 5 (2d Cir.2005) (finding that cheek swabs, although constituting a search, are less invasive than blood draws); cf. Skinner, 489 U.S. at 625, 109 S.Ct. 1402 (noting that breath tests are less intrusive than blood tests as they “do not require piercing the skin and may be conducted safely outside a hospital environment”). In light of this precedent, the act of collecting a DNA sample is “neither a significant nor an unusual intrusion.” Weikert, 504 F.3d at 12. Therefore, in balancing the interests required in our Fourth Amendment analysis, the intrusion occasioned by the act of collecting the DNA sample is minimal and does not weigh significantly in Mitchell’s favor. The second “search” at issue is, of course, the processing of the DNA sample and creation of the DNA profile for CODIS. This search also has the potential to infringe upon privacy interests. See Sczubelek, 402 F.3d at 182; Amerson, 483 F.3d at 85. Mitchell argues that this intrusion is significant and unreasonable given that “the scope of information that can be obtained from a DNA sample is extraordinarily broad.” (Mitchell Br. 34.) Furthermore, Mitchell speculates that the Government might disregard its policy of using only “junk DNA” and surmises that, with technological advances, “junk DNA” could reveal far more extensive information than it presently discloses. These concerns weighed heavily in the District Court’s analysis and caused the District Court to conclude that DNA is “an information science,” “not an identification science.” Mitchell, 681 F.Supp.2d at 609. We are “mindful of the vast amount of sensitive information that can be mined from a person’s DNA and the very strong privacy interests that all individuals have in this information.” Amerson, 483 F.3d at 85. Nevertheless, every one of our sister circuits to have considered the concerns raised by Mitchell has rejected them given their speculative nature and the safeguards attendant to DNA collection and analysis. See, e.g., Boroian, 616 F.3d at 66–69; Kriesel, 508 F.3d at 948 & n. 10. As the First Circuit held, the “DNA Act offers a substantial deterrent to such hypothetical abuse by imposing a criminal penalty for misuse of DNA

samples....” Weikert, 504 F.3d at 13.. Mitchell also highlights the potential misuse of the information contained in the DNA profile. While Mitchell has not provided any evidence of misuse of a DNA sample or profile, we are also reassured by the numerous protections in place guarding against that possibility. As we explained earlier, the Act criminalizes the misuse of both the sample and the analysis generated from the sample. 42 U.S.C. § 14135e(c). Additional protections exist. The Act provides that failure to comply with “the quality control and privacy requirements” can result in cancellation of access to CODIS. 42 U.S.C. § 14132(c). Moreover, the DNA profile may only be used for four limited purposes. 42 § 14132(b)(3). Use of the profile for any other reason would violate the statute and be subject to criminal penalties. While we acknowledge the seriousness of Mitchell’s concerns about the possible misuse and future use of DNA samples, we conclude that these hypothetical possibilities are unsupported by the record before us and thus do not have any substantial weight in our totality of the circumstances analysis. Should technological advancements change the value of “junk DNA,” reconsideration of our Fourth Amendment analysis may be appropriate. Cf. City of Ontario v. Quon, ––– U.S. ––––, 130 S.Ct. 2619, 2629, 177 L.Ed.2d 216 (2010) (“The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.”). Next, contending that a DNA profile is used for far more than identity, Mitchell attempts to distinguish a DNA profile from conventional fingerprints. The District Court agreed, holding that “to compare the fingerprinting process and the resulting identification information obtained therefrom with DNA profiling is pure folly.” Mitchell, 681 F.Supp.2d at 608. Yet many of our sister circuits have expressly adopted just this analogy:

CODIS operates much like an old-fashioned fingerprint database (albeit more efficiently).Johnson, 440 F.3d at 499 (internal citations omitted); Boroian, 616 F.3d at 65 (“Under the




DNA Act, DNA profiles currently function as identification records not unlike fingerprints, photographs, or social security numbers.”); accord Banks, 490 F.3d at 1192

Like fingerprints, “at least in the current state of scientific knowledge, the DNA profile derived from the [individual’s] blood sample establishes only a record of the [individual’s] identity.” Amerson, 483 F.3d at 85; accord Kriesel, 508 F.3d at 947. Given the protections built into the DNA Act, the Government’s stated practice of only analyzing “junk DNA,” and the current limits of technology, the information stored in CODIS serves only an identification purpose. Moreover, the regulations of the 2006 amendment to the DNA Act confirms the intention to use DNA profiles as “sanitized ‘genetic fingerprints’ that can be used to identify an individual uniquely, but do not disclose an individual’s traits, disorders, or dispositions.” DNA–Sample Collection, 73 Fed.Reg. at 74937. Given the record in front of us today, we conclude that a DNA profile is used solely as an accurate, unique, identifying marker—in other words, as fingerprints for the twenty-first century. Considering a DNA profile as a tool for establishing identity, the issue becomes the degree to which an individual has an expectation of privacy in his or her own identity. In Sczubelek, we considered this issue with respect to individuals on supervised release and noted that they “ ‘do not enjoy the absolute liberty to which every citizen is entitled.’ ” 402 F.3d at 184 (quoting Knights, 534 U.S. at 119, 122 S.Ct. 587). Our analysis relied heavily on Sczubelek’s status as a convicted felon on supervised release; as such, it cannot be adopted wholesale in the present case, as Mitchell correctly argues. Instead, the critical question is whether arrestees and pretrial detainees who have not been convicted of felonies have a diminished privacy interest in their identity. A useful analogue is case law assessing the validity of fingerprinting arrestees and pretrial detainees as part of a routine booking process. Suspicionless fingerprinting of all citizens would violate the Fourth Amendment. See Hayes v. Florida, 470 U.S. 811, 813–18, 105 S.Ct. 1643, 84 L.Ed.2d 705 (1985); Davis v. Mississippi, 394 U.S. 721, 727, 89

S.Ct. 1394, 22 L.Ed.2d 676 (1969). Nevertheless, it is “elementary” that blanket fingerprinting of individuals who have been lawfully arrested or charged with a crime does not run afoul of the Fourth Amendment. Smith, 324 F.2d at 882. The universal approbation of fingerprinting as a method of identifying arrestees despite the invasion of privacy “is not surprising when we consider that probable cause had already supplied the basis for bringing the person within the criminal justice system. With the person’s loss of liberty upon arrest comes the loss of at least some, if not all, rights to personal privacy otherwise protected by the Fourth Amendment.” Jones, 962 F.2d at 306; see also Kincade, 379 F.3d at 864 (Reinhardt, J., dissenting) (“Arrestees’ privacy interests ... appear to be significantly reduced.”). This analysis rests on two foundational principles—the presence of probable cause to arrest and the use of fingerprints as a method of identification. Jones, 962 F.2d at 306. This logic extends to the collection and analysis of DNA samples from arrestees and pretrial detainees. See *412 Anderson v. Virginia, 274 Va. 469, 650 S.E.2d 702, 705 (2007) (“A DNA sample of the accused taken upon arrest, while more revealing, is no different in character than acquiring fingerprints upon arrest.”). DNA collection occurs only after it has been determined that there is probable cause to believe that the arrestee committed a crime. In light of this probable cause finding, arrestees possess a diminished expectation of privacy in their own identity, which has traditionally justified taking their fingerprints and photographs. Likewise, because DNA profiles developed pursuant to the DNA Act function as “genetic fingerprints” used only for identification purposes, arrestees and pretrial detainees have reduced privacy interests in the information derived from a DNA sample. Mitchell raises an additional concern with the DNA Act and its implementing regulations: the potential indefinite retention of the sample itself. Nothing in the statute instructs the Government what to do with the DNA sample when an individual is no longer under correctional supervision. However, federal law does mandate the expungement of the DNA profile when the FBI receives a certified copy of a court order showing that a conviction is




overturned or when, if the sample is taken following an arrest, no charge is filed, the charge is dismissed, or results in an acquittal. 42 U.S.C. § 14132(d)(1)(A).

In sum, at present DNA profiling is simply a more precise method of ascertaining identity and is thus akin to fingerprinting, which has long been accepted as part of routine booking procedures. The traditional fingerprinting cases emphasize that arrestees and pretrial detainees have a diminished expectation of privacy in their identity. None of Mitchell’s arguments compels us to conclude that the same diminished expectation of privacy should not apply to DNA profiling. b. Government Interests

The second step in the totality of the circumstances analysis is to assess “the degree to which [the search] is needed for the promotion of legitimate governmental interests.” Knights, 534 U.S. at 119, 122 S.Ct. 587. The Government’s interests in this case are not as great as those identified in Sczubelek, as the interests in supervising convicted individuals on release and deterring recidivism do not apply to arrestees or pretrial detainees. 402 F.3d at 186. Nevertheless, the other key interest recognized in Sczubelek—collecting identifying information to aid law enforcement—applies with equal force to arrestees and pretrial detainees. Id. at 185. Mitchell acknowledges that DNA profiling serves important law enforcement interests, but he argues that these interests can be equally well served by collecting DNA samples post-conviction. It is true, as Mitchell asserts, that the information contained in a DNA sample does not change over time and cannot be concealed; thus, there is no need for the Government to act quickly to prevent the destruction of evidence. Nevertheless, the Government argues that there are other legitimate interests that weigh in favor of pretrial DNA collection. We agree. Most compelling is the Government’s strong interest in identifying arrestees. “[W]hen a suspect is arrested upon probable cause, his identification becomes a matter of legitimate state interest.”

Jones, 962 F.2d at 306. Given “the potentially greater precision of DNA sampling and matching methods,” DNA profiling serves this interest better than fingerprinting. Sczubelek, 402 F.3d at 186 (quoting Jones, 962 F.2d at 307). Moreover, DNA may permit identification in *414 cases without fingerprint or eyewitness evidence. The Government’s ability to accurately identify a person through their DNA profile cannot be entirely substituted by other means of identification, such as fingerprints or photographs. DNA analysis enables the Government to identify a person who has changed their appearance, either permanently or temporarily. Weikert, 504 F.3d at 14 (“Even a suspect with altered physical features cannot escape the match that his DNA might make with a sample contained in a DNA bank, or left at the scene of a crime.”) (citing Amerson, 483 F.3d at 87); accord Sczubelek, 402 F.3d at 185. Similarly, an arrestee who has altered his or her fingerprints in order to avoid detection could also be identified with certainty through their DNA. Therefore, the use of CODIS in the law enforcement process assures greater precision in the identification of arrestees. Moreover, there are two components to a person’s identity: “who that person is (the person’s name, date of birth, etc.) and what that person has done (whether the individual has a criminal record, whether he is the same person who committed an as-yet unsolved crime across town, etc.).” Haskell v. Brown, 677 F.Supp.2d 1187, 1199 (N.D.Cal.2009). The second component—what a person has done—has important pretrial ramifications. Running an arrestee’s DNA profile through CODIS could reveal matches to crime-scene DNA samples from unsolved cases. Whether an arrestee is possibly implicated in other crimes is critical to the determination of whether or not to order detention pending trial. See 18 U.S.C. § 3142(g)(3)(A) (stating that factors to be considered in the bail determination include a person’s “past conduct” and “criminal history”). To the extent that DNA profiling assists the Government in accurate criminal investigations and prosecutions (both of which are dependent on accurately identifying the suspect), it is in the




Government’s interest to have this information as soon as possible. Collecting DNA samples from *415 arrestees can speed both the investigation of the crime of arrest and the solution of any past crime for which there is a match in CODIS. Moreover, “use of CODIS promptly clears thousands of potential suspects—thereby preventing them from ever being put in that position, and advancing the overwhelming public interest in prosecuting crimes accurately.”25

Kincade, 379 F.3d at 839 n. 38 (plurality op.).

FN 25. The Government also argues that the collection of DNA samples from arrestees helps to detect and deter any violations of pretrial release. Any such interest is outweighed by the presumption of innocence, relied on so heavily by Mitchell.

We therefore hold that 42 U.S.C. § 14135a is constitutional. In sum, under *416 the totality of the circumstances, given arrestees’ and pretrial detainees’ diminished expectations of privacy in their identities and the Government’s legitimate interests in the collection of DNA from these individuals, we conclude that such collection is reasonable and does not violate the Fourth Amendment. Accordingly, the District Court incorrectly prohibited the Government from collecting a sample of Mitchell’s DNA pursuant to 42 U.S.C. § 14135a and 28 C.F.R. § 28.12.

***RENDELL, Circuit Judge, with whom Circuit Judges McKEE, Chief Judge, BARRY, GREENAWAY, JR., and VANASKIE join, and AMBRO joins as to Part II only, dissenting.I respectfully dissent because I find the majority’s conclusion here—that the Government’s program of collecting, analyzing, and maintaining the DNA of arrestees and pretrial detainees comports with the Fourth Amendment—to be seriously flawed. With respect to the Fourth Amendment question, the majority gives short shrift to an arrestee’s and pretrial detainee’s expectation of privacy in his DNA, reducing it to an interest in identity only, and overstates the significance of the Government’s interest in collecting evidence to solve crimes. It reasons that limitations on the use of an arrestee’s most personal information immunizes the

Government from the Fourth Amendment’s warrant requirement. But this ignores the fact that the searches and seizure of one’s DNA permitted by 42 U.S.C. § 14135(a)(1)(A) implicate privacy interests far more expansive than mere identity. In the face of such heightened privacy interests, statutory restrictions on the use of the DNA collected from suspects who have not been convicted of a crime, though not wholly irrelevant, are not panaceas. They cannot offset the severe invasion of privacy that takes place when an arrestee’s DNA is seized and searched. And the intent of the Government in using arrestees’ DNA to solve other crimes, while it may be salutary and helpful in that regard, is not compelling. When the privacy and Government interests are weighted appropriately, one can only conclude that the Government’s program of warrantless, suspicionless DNA collection from arrestees and pretrial detainees is fundamentally incompatible with the Fourth Amendment. Therefore, I respectfully dissent.

***II.

The majority’s holding means that if a person is arrested for a federal crime in a case of mistaken identity (an all-too-common occurrence), the Government has the automatic right to sample the arrestee’s DNA, to analyze it, and to include a profile derived from the DNA sample in CODIS. See 42 U.S.C. § 14135a(a)(1)(A), (b). Under the majority’s holding, the arrestee has no way to protest or to prevent the Government from taking his DNA; his only recourse is to wait and later provide the Government with a “certified copy of a final court order establishing that” the charges against him have “been dismissed or [have] resulted in an acquittal,” or that “no charge was filed within the applicable time period.” Id. § 14132(d)(1)(A)(ii). Even then, although his DNA profile will be expunged from CODIS, the Government will retain his DNA sample indefinitely. *421 I simply cannot imagine that our Government can so easily override a person’s expectation of privacy in his DNA. The privacy interests of arrestees, while diminished in certain, very circumscribed situations, are not so weak as to permit the Government to intrude into




their bodies and extract the highly sensitive information coded in their genes. Moreover, the Government’s asserted interest in this case—the law enforcement objective of obtaining evidence to assist in the prosecution of past and future crimes—presents precisely the potential for abuse the Fourth Amendment was designed to guard against. Thus, arrestees’ and pretrial detainees’ privacy interests in their DNA are stronger, and the Government’s interest in evidence collection for crime-solving purposes is less compelling, than the majority represents. After distinguishing our holding in United States v. Sczubelek, 402 F.3d 175 (3d Cir.2005), I will address these interests in turn.

A.

Sczubelek, which might appear to control this case, is readily distinguishable. There, we held that the collection and analysis of DNA samples from individuals convicted of certain qualified federal offenses do not violate the Fourth Amendment. Id. at 187. Thus, the key question in this case is whether Mitchell’s status as an arrestee and pretrial detainee, as opposed to a convict, makes a difference that precludes the Government from sampling and analyzing his DNA. It does. The factors on both sides of the totality-of-the-circumstances equation are different for arrestees and pretrial detainees than for convicted felons: arrestees’ and pretrial detainees’ expectation of privacy in their DNA is greater, and the Government’s interests in accessing and analyzing that DNA are much less compelling.5

FN 5. I agree with the majority that, following Sczubelek, we must apply the “totality of the circumstances” test to determine the Fourth Amendment “reasonableness” of the contested search at issue in this case. Maj. Op. 402–03. But I share Judge McKee’s concern that, when applied in these circumstances, such an analysis mimics a “special needs” analysis “while ignoring that the ‘need’ relied upon is law enforcement.” See Sczubelek, 402 F.3d at 199–201 (McKee, J., dissenting).

Convicts (whether prisoners or, as in Sczubelek, probationers) differ from arrestees and pretrial detainees in an obvious, but nonetheless critical, respect: they have been found guilty beyond a reasonable doubt, not just accused, of a crime. The

conviction carries with it a permanent change in the person’s status from ordinary citizen to “lawfully adjudicated criminal [ ] ... whose proven conduct substantially heightens the government’s interest in monitoring” him and “quite properly carries lasting consequences.” United States v. Kincade, 379 F.3d 813, 836 (9th Cir.2004) (en banc) (plurality op.). Because they have not been adjudged guilty of any crime or suffered any corresponding permanent change in their status, arrestees and pretrial detainees necessarily retain a greater expectation of privacy than convicts do. At the same time, and as the majority concedes, several of the interests that tipped the balance in the Government’s favor in Sczubelek do not carry the same force in this case. For example, “the interests *422 in supervising convicted individuals on release and deterring recidivism,” which we considered important in Sczubelek, 402 F.3d at 186, “do not apply to arrestees or pretrial detainees,” Maj. Op. 402. The Government’s interests in this case are limited by the fact that, unlike convicts, arrestees and pretrial detainees are entitled to a presumption of innocence. Thus, unlike in Sczubelek, the Government may not assume that the subjects of the DNA collection are more likely to commit future crimes to justify the collection and analysis of their DNA. See United States v. Scott, 450 F.3d 863, 874 (9th Cir.2006) (“That an individual is charged with a crime cannot, as a constitutional matter, give rise to any inference that he is more likely than any other citizen to commit a crime if he is released from custody.”), quoted in Maj. Op. 415 n. 25.

B.

Accordingly, Sczubelek does not control. Instead, our analysis must begin at the starting point for all Fourth Amendment inquiries: an assessment of the privacy interests at stake. See United States v. Knights, 534 U.S. 112, 118–19, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001) (quoting Wyoming v. Houghton, 526 U.S. 295, 300, 119 S.Ct. 1297, 143 L.Ed.2d 408 (1999)). Arrestees and pretrial detainees do not forfeit their Fourth Amendment privacy protections simply by virtue of being arrested. Courts have sanctioned government intrusion into those rights in only a




few, narrow circumstances, such as searches of a suspect’s person and the area within his immediate control incident to his arrest, see, e.g., Chimel v. California, 395 U.S. 752, 763, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969), and prison searches for the purpose of “maintaining institutional security and preserving internal order and discipline,” Bell v. Wolfish, 441 U.S. 520, 546–47, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). Neither circumstance exists in this case, and the majority does not suggest otherwise. Instead, the majority premises its entire analysis on the theory that arrestees and pretrial detainees have a purported “diminished expectation of privacy in their identities.” Maj. Op. 390. But this minimizes, and misses, the point, in three ways: (1) there is much more at stake in this case than arrestees’ and pretrial detainees’ expectation of privacy in their “identities”; (2) a person’s DNA is not equivalent to his fingerprints; and (3) no persuasive authority supports the notion that arrestees and pretrial detainees enjoy less than a full expectation of privacy in their DNA. Before assessing the privacy interest at issue here, it is important to clarify the nature of the intrusion that takes place when a DNA sample is taken from an arrestee or pretrial detainee. First, his cheek is swabbed. This is the initial search. The swab is followed by a taking—a seizure—of a sample of fluid containing DNA fluid. The seizure is then followed by another search of the DNA and the creation from the retrieved sample of a profile. And so, an arrestee or pretrial detainee undergoes three separate intrusions: the search of his mouth, followed by a seizure of fluid, which is then searched in order to extract the desired end product, the DNA profile.

1. This Case Does Not Merely Concern Arrestees’ and Pretrial Detainees’ “Identities.”It is inaccurate to say that the only (or, indeed, even the primary) privacy concern at stake in this case is arrestees’ and pretrial detainees’ “identities.” The real purpose of collecting arrestees’ and pretrial detainees’ DNA samples and including the resulting DNA profiles in the federal CODIS database is not to “identify” the arrestee in the sense of allowing law enforcement to confirm that the correct person has been arrested or keeping records of *423 who has been in federal custody,

but to use those profiles and the information they provide as evidence in the prosecution and to solve additional past and future crimes. See Gov’t Br. 42–43 (“Collection of DNA fingerprints at the time of arrest or at another early stage in the criminal justice process can solve, prevent, and deter subsequent criminal conduct....”); see also Maj. Op. 398–99 (noting that CODIS “ ‘allows State and local forensics laboratories to exchange and compare DNA profiles electronically in an attempt to link evidence from crime scenes for which there are no suspects to DNA samples ... on file in the system’ ” (quoting H.R. Rep. 106–900(I), at 8 (2000), reprinted in 2000 U.S.C.C.A.N. 2323, 2324)); Maj. Op. 414–15 (“Collecting DNA samples from arrestees can speed both the investigation of the crime of arrest and the solution of any past crime for which there is a match in CODIS.”). The structure of the statute and accompanying regulatory scheme confirm that the statute’s animating purpose is not to identify the defendant. The statute provides for expungement of an arrestee’s or pretrial detainee’s DNA profile if the charges do not result in a conviction or if the Government fails to file charges within the applicable period. 42 U.S.C. § 14132(d)(1)(A)(ii). If the Government’s real interest were in maintaining records of arrestees’ identities, there would be no need to expunge those records upon an acquittal or failure to file charges against the arrestee. Indeed, this statutory provision serves as an admission that the fact of conviction, not of mere arrest, justifies a finding that an individual has a diminished expectation of privacy in his DNA. Other features of the regulatory scheme further undermine the majority’s conclusion that the relevant privacy concern here is arrestees’ and pretrial detainees’ expectation of privacy in their “identities.” The statute and regulations contemplate collection of a DNA sample and analysis of that sample to create a “DNA profile,” which is then entered into CODIS. The Government retains the full DNA sample indefinitely.8

FN 8. The statute provides for the expungement of DNA profiles from CODIS




under certain circumstances, see 42 U.S.C. § 14132(d)(1), but does not provide any mechanism for the disposal of the DNA samples.

The arrestee’s or pretrial *424 detainee’s intact, unanalyzed DNA sample contains a “ ‘vast amount of sensitive information,’ ” Maj. Op. 407 (quoting United States v. Amerson, 483 F.3d 73, 85 (2d Cir.2007)), beyond the individual’s identity, including “familial lineage and predisposition to over four thousand types of genetic conditions and diseases” and, potentially, “genetic markers for traits including aggression, sexual orientation, substance addiction, and criminal tendencies,” United States v. Mitchell, 681 F.Supp.2d 597, 608 (W.D.Pa.2009) (citation omitted). The majority suggests that the “possible misuse and future use of DNA samples” is a matter of conjecture, Maj. Op. 408, but that seeks to divert from the issue at hand. Misuse and future use notwithstanding, the Government has taken, searched, and retained rich, privacy-laden DNA in the sample. The majority’s focus on the Government’s use of that DNA as the controlling privacy consideration is simply misguided. It is akin to saying that if the Government seizes personal medical information about you but can only use the subset of that information that serves to identify you, your privacy interest in the information taken is confined to a mere interest in your identity. Nothing could be further from the truth, and the majority engages in sleight of hand by suggesting otherwise.

The majority does not even attempt to support its thesis that arrestees and pretrial detainees have a diminished expectation of privacy in this extremely private and sensitive information. Instead, it avoids this issue by theorizing that statutory safeguards concerning the post-collection use of the samples validate, or justify, their earlier warrantless collection. Maj. Op. 407–08. But where in our jurisprudence have we held that post-collection safeguards on the use of seized material can immunize an otherwise impermissible search ? It bears repeating that a seizure and two invasive searches have already taken place before any question of the DNA sample’s use even comes into play. The majority’s emphasis on use to define—in fact, to cabin—the nature of the interest is not

supportable in law or logic. 2. DNA Is Not the Same as Fingerprints or Photographs.Taking an arrestee’s picture or fingerprints does not provide a useful analogy for analyzing the question of whether the Government may collect and analyze his DNA. See Maj. Op. 409–12. For one thing, collecting and analyzing DNA is much more intrusive than either fingerprinting or photographing. Moreover, and quite obviously, the collection of a person’s DNA “ ‘requires production of evidence below the body surface which is not subject to public view,’ ” whereas fingerprinting and photographing do not. Sczubelek, 402 F.3d at 197–98 (McKee, J., dissenting) (quoting In re Mills, 686 F.2d 135, 139 (3d Cir.1982) (emphasis added)). While the Supreme Court, and we, have held in some circumstances that blood tests or other bodily intrusions constitute a “minimal” invasion of an individual’s privacy interests, see Maj. Op. 403–04 & cases cited therein, we should not dismiss any such intrusion lightly, cf. Schmerber v. California, 384 U.S. 757, 770, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (“The importance of informed, detached and deliberate determinations of the issue of whether or not to invade another’s body in search of evidence of guilt is indisputable and great.”); Sczubelek, 402 F.3d at 184 (noting that even the “slight intrusion” of a blood test is “unconstitutional” when required of “an ordinary citizen”). I agree with the majority that the Government’s interest in identifying individuals who have been arrested can be strong; where we part company is in the majority’s conclusion that it justifies the warrantless collection and analysis of DNA, which contains much more than just identifying information. 3. No Persuasive Authority Supports the Conclusion that Arrestees and Pretrial Detainees Have a Diminished Expectation of Privacy in Their DNA.

Even if arrestees’ and pretrial detainees’ expectation of privacy in their identities were the relevant privacy interest in this case, the caselaw




concerning arrestees’ and pretrial detainees’ reduced expectation of privacy in their identities is not nearly as broad or clear-cut as the majority suggests. The majority relies heavily on cases that approve the use of fingerprinting arrestees and pretrial detainees as part of routine “booking procedures.” See Maj. Op. 410–12. Fingerprinting does not provide a useful analogue in this case for the reasons outlined above. Even leaving that aside, however, I disagree that the “booking procedures” cases carry the weight the majority assigns to them. As the majority concedes, most modern cases on the subject “assume the propriety of such booking procedures with little analysis.” Maj. Op. 410 n. 20; see, e.g., Smith v. United States, 324 F.2d 879, 882 (D.C.Cir.1963) *426 (“[I]t is elementary that a person in lawful custody may be required to submit to photographing ... and fingerprinting ... as part of routine identification processes.” (citations omitted)). That is particularly true of cases that proclaim that the Government has an interest in using those fingerprints for solving past and future crimes unrelated to the suspect’s arrest—they tend simply to state that “we accept” those practices as a truism, without any further citation or analysis. See, e.g., Jones v. Murray, 962 F.2d 302, 306 (4th Cir.1992) (stating, without citation to authority, “[w]e accept” routine fingerprinting “because the identification of suspects is relevant not only to solving the crime for which the suspect is arrested, but also for maintaining a permanent record to solve other past and future crimes”). Where courts analyze the reasons we allow routine fingerprinting in any detail, they typically rely on one of two justifications: (a) that the evidence may be used to solve the particular crime for which the government has probable cause to arrest the suspect or (b) that the Government has a general interest in what the majority describes as the first “component” of a person’s identity—“ ‘who that person is.’ ” Maj. Op. 414–15 (quoting Haskell v. Brown, 677 F.Supp.2d 1187, 1199 (N.D.Cal.2009)). Both justifications make sense and may be true in a limited context, but neither one explains why the Government may collect identifying information expressly for the purpose of using it against arrestees in connection with other, unsolved crimes for which the Government

has no basis to suspect the arrestee. I am not persuaded by the reasoning that a prior “probable cause determination limits the opportunities for mischief inherent in a suspicionless search regime.” Pool, 621 F.3d at 1231–32 (Lucero, J., concurring). We do not view a finding of probable cause for one crime as sufficient justification to engage in warrantless searches of arrestees’ or pretrial detainees’ homes for evidence of other crimes, see, e.g., Chimel, 395 U.S. at 763, 89 S.Ct. 2034 Indeed, even after conviction, warrantless searches raise serious Fourth Amendment questions. Where the Supreme Court has upheld such searches, it has focused on non-law enforcement “special needs,” as in Griffin v. Wisconsin, 483 U.S. 868, 873–74, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987), or “reasonable suspicion” that the subject of the search “is engaged in criminal activity,” as in United States v. Knights, 534 U.S. 112, 121, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001). Neither circumstance exists in this case. In light of the foregoing, I do not find any authority to support a general diminution of arrestees’ or pretrial detainees’ privacy interests by virtue of a finding of probable cause. Absent such authority, there is no basis for concluding that arrestees’ or pretrial detainees’ expectation of privacy in their DNA is diminished in any way.

C.

Acknowledging that the Government’s interests in “supervising convicted individuals on release and deterring recidivism do not apply to arrestees or pretrial detainees,” the majority rests its approval of the DNA collection scheme at issue here entirely on the Government’s interest in “collecting identifying information to aid law enforcement.” Maj. Op. 413. In so doing, the majority seems to have lost sight of the Fourth Amendment’s inherent strictures; “Ordinarily, the reasonableness of a search depends on governmental compliance with the Warrant Clause, which requires authorities to demonstrate probable cause to a neutral magistrate and thereby convince him to provide formal authorization to proceed with a search by issuance of a particularized *428 warrant.” Kincade, 379 F.3d at 822 (plurality op.) (citation omitted).




Throughout the years, courts have approved exceptions to the warrant and probable-cause requirements in certain carefully defined circumstances, such as searches incident to arrest, see, e.g., Chimel, 395 U.S. at 763, 89 S.Ct. 2034, limited, protective searches based on “reasonable suspicion” of imminent danger, e.g., Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), and generalized prison searches to further legitimate penological goals, e.g., Florence v. Burlington Cnty., 621 F.3d 296, 307 (3d Cir.2010) (holding certain jails’ strip-search procedures reasonable in light of the jails’ interests in maintaining security). See generally Kincade, 379 F.3d at 822–24 (surveying exceptions to warrant and probable-cause requirements). But, given the express warrant and probable-cause requirements in the Fourth Amendment’s text, we must take special care when approving warrantless, suspicionless searches to ensure that our analysis is well grounded in the facts and law and that it makes jurisprudential and common sense. Our task in Fourth Amendment cases is not to determine whether some asserted government interest might theoretically provide a rational basis for the challenged search. The majority’s conclusion that the government interest here is somehow sufficient does just that, and thereby transforms the analysis into one that is more akin to First Amendment reasoning. But there is no “rational basis” principle in our Fourth Amendment jurisprudence. The Supreme Court historically has regarded generalized interests in “law enforcement” as a particularly suspect type of government interest for Fourth Amendment purposes, and has specifically held invalid other suspicionless search programs that are designed to “uncover evidence of ordinary criminal wrongdoing” by the targets of the search. City of Indianapolis v. Edmond, 531 U.S. 32, 42, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000). This treatment *429 comports with basic notions of the role the Fourth Amendment plays in protecting the lives of ordinary citizens. See, e.g., Kincade, 379 F.3d at 851–52 (Reinhardt, J., dissenting) (“[The Framers] knew that the use of suspicionless blanket searches and seizures for investigatory purposes would ‘subject unlimited numbers of innocent

persons to the harassment and ignominy incident to involuntary detention.’ ”) (quoting Davis v. Mississippi, 394 U.S. 721, 726, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969)). Government’s interest in evidence-gathering and crime-solving deserves little or no weight in our Fourth Amendment review. Even were we to assume some diminution in arrestees’ and pretrial detainees’ expectation of privacy in their DNA, the Government cannot trump that expectation simply by invoking its interest in solving crimes. Of course, the Government’s interest in solving past and future crimes is a legitimate and serious one. But if that were our only concern, we would authorize the collection and inclusion in CODIS of DNA profiles of every citizen—surely, that would “assist[ ] the Government in accurate criminal investigations and prosecutions.” Maj. Op. 414. Similarly, if we hold that this interest prevails over some inchoate “diminished expectation of privacy,” then we may be opening the door to the collection and analysis of DNA for crime-solving purposes from the “many other groups of people who,” under Supreme Court precedent, “have a reduced expectation of privacy,” including, e.g., “students who attend public schools and participate in extracurricular activities” and “drivers and passengers of vehicles.” Sczubelek, 402 F.3d at 198–99 (McKee, J., dissenting) (citations omitted); see also Kincade, 379 F.3d at 844 (Reinhardt, J., dissenting). Routine searches of arrestees’ homes would also be permitted as furthering the Government’s legitimate crime-solving interests. The absurdity of these examples underscores that the Government’s crime- *430 solving interests, while compelling in the abstract, cannot carry the day here. Warrantless searches require so much more. I do not agree with the majority that arrestees’ and pretrial detainees’ expectation of privacy in their DNA yields so easily to the Government’s generalized evidence-collection and crime-solving concerns. Accordingly, I respectfully dissent, as I would affirm the District Court’s order.



Mario W. v. Kaipio, 230 Ariz. 122 (2012)281 P.3d 476, 637 Ariz. Adv. Rep. 22

230 Ariz. 122Supreme Court of Arizona.

MARIO W., Petitioner,v.

The Honorable Thomas KAIPIO, Commissioner of The Superior Court of The State of Arizona, in and for the

County of Maricopa, Respondent Commissioner,

State of Arizona, Real Party in Interest.

Bradley W., Petitioner,v.

The Honorable Thomas Kaipio, Commissioner of The Superior Court of The State of Arizona, in and for the


State of Arizona, Real Party in Interest.

Alexis A., Petitioner,v.

The Honorable Mark Brain, Commissioner of The Superior Court of The State of Arizona, in and for the


The State of Arizona, Real Party in Interest.

Noble B., Petitioner,v.

The Honorable Thomas Kaipio, Judge of The Superior Court of The State of

Arizona, in and for the County of Maricopa, Respondent Judge,State of Arizona, Real Party in

Interest.Bailey J., Petitioner,

v.The Honorable Mark F. Aceto, Judge of The Superior Court Of The State of

Arizona, in and for the County of Maricopa, Respondent Judge,State of Arizona, Real Party in

Interest.Devon C., Petitioner,

v.The Honorable Peter A. Thompson,

Commissioner of The Superior Court

of The State of Arizona, in and for the County of Maricopa, Respondent

Commissioner,State of Arizona, Real Party in

Interest.Eric R., Petitioner,

v.The Honorable Thomas Kaipio,

Commissioner of The Superior Court of The State Of Arizona, in and for the


State of Arizona, Real Party In Interest.

No. CV–11–0344–PR. | June 27, 2012.

Opinion

HURWITZ, Vice Chief Justice.Arizona law requires juveniles charged with certain offenses and summoned to appear at an advisory hearing to submit to the investigating law enforcement agency “a sufficient sample of buccal cells or other bodily substances for deoxyribonucleic acid [DNA] testing and extraction.” A.R.S. § 8–238(A). *478 The penalty for failure to comply is revocation of release pending adjudication. § 8–238(B). In this case we consider whether the statutory scheme violates the Fourth Amendment prohibition against unreasonable searches and seizures.

I.

Seven juveniles (collectively, the “Juveniles”) were separately charged with violations of offenses specified in § 8–238(A). Each was summoned to an advisory hearing, released, and ordered to submit a buccal sample to law enforcement within five days. In each case, the superior court rejected Fourth Amendment objections to the sampling order. The Juveniles then jointly filed a special action in the court of appeals. That court accepted jurisdiction and a divided panel held that requiring the submission of DNA samples from five juveniles for whom a probable cause determination has been made does not violate the Fourth Amendment. Mario W. v. Kaipio, 228 Ariz. 207, 210 ¶ 1, 265 P.3d 389, 392 (App.2011). The




majority reasoned that a judicial finding of probable cause is a “watershed event” that reduced these juveniles’ expectations of privacy, id. at 214–15 ¶ 22, 265 P.3d at 396–97, and that the State’s “interest in identifying these juveniles outweighs their right to privacy,” id. at 217 ¶ 30, 265 P.3d at 399. A different 2–1 majority, however, held that the Fourth Amendment forbids the DNA sampling of the two juveniles for whom no probable cause determination has yet been made. Id. at 210 ¶ 2, 265 P.3d at 392.

II.

After a buccal sample is obtained under A.R.S. § 8–238(A), the investigating law enforcement agency transmits it to the Department of Public Safety (“DPS”), where it is analyzed and a DNA profile produced. §§ 8–238(C), 8–238(D), 13–610(H)(1), (2). The profile is entered into an Arizona DNA identification system, see § 41–2418 (establishing state system), and a national database, the Combined DNA Index System (CODIS), see 42 U.S.C. § 14132(a) (establishing national database). See generally Haskell v. Harris, 669 F.3d 1049, 1051–52 (9th Cir.2012) (discussing interface of California database and CODIS). The sample and profile may then be used, inter alia, “[f]or law enforcement identification purposes.” A.R.S. § 13–610(I)(1). A juvenile not ultimately found delinquent “may petition the superior court” to expunge the profile and sample from the Arizona system. A.R.S. § 13–610(M); see also 42 U.S.C. § 14132(d)(2) (providing for expungement from CODIS); A.R.S. § 13–610(J) (providing for expungement when an adjudication is overturned on appeal or in a postconviction relief proceeding).

III.

***

B.May the State, consistent with the Fourth Amendment, compel these Juveniles to submit to DNA extraction and profiling as a condition of release? *480 It has been long established that warrantless searches “are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” Katz

v. United States, 389 U.S. 347, 357, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967). Supreme Court jurisprudence also long taught that even searches excepted from the warrant requirement could be conducted only on probable cause. See Dunaway v. New York, 442 U.S. 200, 208, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979) (discussing case law). In 1968, however, the Court held that the Fourth Amendment allowed temporary seizures based on something less than probable cause—reasonable suspicion. Terry v. Ohio, 392 U.S. 1, 25–31, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The Court has also upheld searches in certain circumstances absent any showing of probable cause or reasonable suspicion. In Samson v. California, the Court held that a search mandated as a condition of parole does not violate the Fourth Amendment. 547 U.S. 843, 847, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006). Although the Court might have premised Samson on a consent theory, it instead employed a “totality of the circumstances test” in finding the search reasonable. Id. at 848–53, 126 S.Ct. 2193. Under that test, “[w]hether a search is reasonable is determined by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy, and on the other, the degree to which it is needed for the promotion of legitimate governmental interests.” Id. at 848, 126 S.Ct. 2193 (citation and internal quotation marks omitted). The Court had earlier employed a totality of the circumstances analysis to uphold the suspicionless search of a probationer. United States v. Knights, 534 U.S. 112, 118, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001). This Term, the Court upheld strip searches of jail detainees without any showing of probable cause or reasonable suspicion. Florence v. Bd. of Chosen Freeholders, ––– U.S. ––––, 132 S.Ct. 1510, 1518–23, 182 L.Ed.2d 566 (2012). Although not explicitly employing a totality of the circumstances test, Florence also balanced the government’s interests in safety and orderly jail administration against the reduced privacy interests of detainees. Id. No Arizona or United States Supreme Court case, however, addresses the constitutionality of suspicionless pre-conviction DNA testing. The case law elsewhere is sharply divided. North Dakota’s highest court recently found that DNA profiling of arrestees violated the Fourth




Amendment. Fern v. State, 376 N.D. 550, 27 A.2d 549, 580 (2011). Other courts have also so held, distinguishing the post-conviction cases because arrestees have a higher expectation of privacy than convicted felons. See, e.g., Friedman v. Boucher, 580 F.3d 847, 858 (9th Cir.2009); In re Welfare of C.T.L., 722 N.W.2d 484, 492 (Minn.Ct.App.2006). Several other courts, however, have found DNA profiling of arrestees reasonable under the Fourth Amendment. See, e.g., Haskell, 669 F.3d at 1065 (2–1 decision); United States v. Mitchell, 652 F.3d 387, 416 (3d Cir.2011) (en banc) (8–6 decision); United States v. Pool, 621 F.3d 1213, 1226 (9th Cir.2010), reh’g en banc granted, 646 F.3d 659 (9th Cir.), and vacated, 659 F.3d 761 (9th Cir.2011); Anderson v. Commonwealth, 274 Va. 469, 650 S.E.2d 702, 705–06 (2007). These courts have found that the government’s interests in identifying arrestees and solving crimes outweigh an arrestee’s diminished expectations of privacy. Most courts considering the constitutionality of DNA sampling and profiling have employed the totality of the circumstances test. See Mitchell, 652 F.3d at 403 (“We and the majority of circuits—the First, Fourth, Fifth, Sixth, Eighth, Ninth, Eleventh, and District of Columbia—have endorsed a totality of the circumstances approach.”). But see Amerson, 483 F.3d at 78 (applying “special needs test”); Green v. Berge, 354 F.3d 675, 677–78 (7th Cir.2004) (same). The parties do not dispute the applicability of the totality of the circumstances test, and we therefore analyze the Arizona scheme under that rubric.

C.

We begin by recognizing that the Arizona statutory scheme involves two separate intrusions on a juvenile’s privacy. First, *481 the State physically seizes a buccal cell sample from the juvenile. Second, it processes the seized cells and extracts a DNA profile. See State v. Gomez, 226 Ariz. 165, 166 n. 1 ¶ 3, 244 P.3d 1163, 1164 n. 1 (2010) (describing process of sampling); 1 Kenneth S. Broun et al., McCormick on Evid. § 205 (6th ed.2010) (describing process of extracting profiles from DNA samples). In Mitchell, the Third Circuit found that DNA sampling and profiling involved two searches—“the physical collection of the DNA

sample” and the “processing of the DNA sample.” 652 F.3d at 406–07. Other courts have reached the same conclusion. See Amerson, 483 F.3d at 84–85; State v. Martin, 184 Vt. 23, 955 A.2d 1144, 1153–54 (2008).

***

These cases recognize that even when law enforcement exigencies justify an initial limited intrusion on Fourth Amendment protected interests, a greater showing is required for a second more extensive intrusion. The two-tiered approach is particularly appropriate in the DNA sampling and profiling context because the two searches implicate different privacy interests. The seizure of buccal cells is a physical intrusion, but does not reveal by itself intimate personal information about the individual. The later search of the sample, however, reveals uniquely identifying information about individual genetics. See Haskell, 669 F.3d at 1051 (describing identifying characteristics of DNA profile). That second search is, in effect, the analog to opening the steamer trunk in Chadwick and the purse in Tiffany O. to see what is inside.

1.

We thus turn first to the seizure of buccal cells. It is clear that one arrested on probable cause may be compelled to give fingerprints to law enforcement. See Davis v. Mississippi, 394 U.S. 721, 725–28, 89 S.Ct. 1394, 22 L.Ed.2d 676 (1969). Several courts have characterized a buccal swab as a similarly minimal intrusion into an arrestee’s privacy. See, e.g., Haskell, 669 F.3d at 1050; Mitchell, 652 F.3d at 407; Martin, 955 A.2d at 1153–54. We agree. While taking fingerprints, law enforcement officers will often touch the body of an arrestee or restrain him from departing until the process is completed. See A.R.S. § 13–3890 (providing for court order when arrestee refuses to submit to fingerprinting). The arrestee is required to press his hands on both an ink pad and the fingerprint card. See A.A.C. § R13–1–106 (providing for use of ink and roll fingerprint cards). The intrusion on an arrestee’s privacy interests in the swiping of a swab to obtain buccal cells is not significantly greater than fingerprinting. Indeed, in some instances arrestees apparently take their own




buccal swabs. See Haskell, 669 F.3d at 1057. *482 The State offers various justifications for the extraction of a DNA sample. We find one compelling. If, as here, a juvenile is released pending adjudication and later fails to appear for trial without previously having submitted a buccal sample, the opportunity to obtain a DNA profile for identification purposes will have been lost. The State has an important interest in locating an absconding juvenile and, perhaps years after charges were filed, ascertaining that the person located is the one previously charged. If the State cannot obtain a DNA sample from a juvenile before release, it may never have another opportunity to do so. This exigency justifies obtaining a buccal cell sample even if a formal judicial determination of probable cause was not made at the advisory hearing. Although two of the Juveniles were ordered to submit samples before a probable cause determination was made, each had been charged with a serious crime in a petition filed under oath by the prosecutor. See Ariz. R.P. Juv. Ct. 24(a). One arrested for a serious crime may be fingerprinted before a judicial determination of probable cause. See A.R.S. § 13–3890(A). A judicial order to provide a buccal cell sample occasions no constitutionally distinguishable intrusion. Thus, we find that the first search—the physical extraction of the DNA—is constitutional as to all of the Juveniles.

2.

The State argues that once it has lawfully obtained the cell samples, the Fourth Amendment provides no greater bar to the processing of those samples and the extraction of the DNA profile than it does to the analysis of fingerprints. But the State’s reliance on the fingerprinting analogy here is misplaced. Once fingerprints are obtained, no further intrusion on the privacy of the individual is required before they can be used for investigative purposes. In this sense, the fingerprint is akin to a photograph or voice exemplar. But before DNA samples can be used by law enforcement, they must be physically processed and a DNA profile extracted. See Erin Murphy, The New Forensics:

Criminal Justice, False Certainty, and the Second Generation of Scientific Evidence, 95 Cal. L.Rev. 721, 726–30 (2007). This second search presents a greater privacy concern than the buccal swab because it involves the extraction (and subsequent publication to law enforcement nationwide) of thirteen genetic markers from the arrestee’s DNA sample that create a DNA profile effectively unique to that individual. Ashley Eiler, Note, Arrested Development: Reforming the Federal All–Arrestee DNA Collection Statute to Comply with the Fourth Amendment, 79 Geo. Wash. L.Rev. 1201, 1220 (2011). *483 ¶ 28 For juveniles not eventually adjudicated delinquent, we can perceive no strong governmental interest in creating DNA profiles in the short period between the advisory hearing and the adjudication. The state and federal statutes providing for the expungement from databases of profiles obtained from arrestees not subsequently convicted recognize that these profiles should not be used for law enforcement purposes after adjudication, and given the constitutional presumption of innocence, we can find no stronger state interest in their use before adjudication. Indeed, whether or not the juvenile is eventually adjudicated delinquent, the benefit to law enforcement of obtaining a DNA profile in the few weeks between the advisory hearing and trial is speculative at best. The buccal sample will not typically be processed until weeks after it is obtained. In California, for example, it takes an average of thirty-one days to process a sample, Haskell v. Brown, 677 F.Supp.2d 1187, 1201 (N.D.Cal.2009), aff’d sub nom. Haskell v. Harris, 669 F.3d 1049 (9th Cir.2012), and the State does not suggest that the process in Arizona is speedier. Adjudication of charges for juveniles not detained (as the Juveniles here) occurs within sixty days of the advisory hearing, Ariz. R.P. Juv. Ct. 29(B)(2), and under § 8–238(A), the juvenile is afforded five days after the advisory hearing to submit the buccal cell sample. Thus, the State’s access to a profile will not be significantly delayed by deferring processing of the sample until the typical juvenile is adjudicated delinquent. Also, because a juvenile




accused of a serious offense but released pending adjudication will already have been determined by a judge not to pose a significant flight risk, see Ariz. R.P. Juv. Ct. 28(D), the state interest in pre-adjudication processing of samples is even more speculative. We recognize that DNA profiles are an important law enforcement tool for investigating crimes other than those charged. See 3 Wayne R. LaFave, Search & Seizure § 5.4 (4th ed. 2004) (noting that the true purpose of DNA databases has not “been primarily to supplement or supplant fingerprints as markers of true identity but rather to generate investigate leads”); David H. Kaye, A Fourth Amendment Theory for Arrestee DNA and Other Biometric Databases, 15 U. Pa. J. Const. L. (forthcoming Summer 2012), available at http://ssrn. com/abstract=2043259 (“Realistically, the sole purpose of arrestee sampling ... is intelligence.”). Having a DNA profile before adjudication may conceivably speed such investigations. But one accused of a crime, although having diminished expectations of privacy in some respects, does not forfeit Fourth Amendment protections with respect to other offenses not charged absent either probable cause or reasonable suspicion. An arrest for vehicular

homicide, for example, cannot alone justify a warrantless search of an arrestee’s financial records to see if he is also an embezzler. Thus, we find no state interest sufficient to justify the serious intrusion on the privacy interests of the Juveniles occasioned by the second search—the extraction of the DNA profile from the buccal swab before adjudication or failure to appear. The swab remains available for processing thereafter, and no exigency exists warranting an earlier suspicionless search.

IV.

For the reasons above, we vacate the opinion of the court of appeals, and we remand the cases to the superior court for proceedings consistent with this opinion. *484 CONCURRING: REBECCA WHITE BERCH, Chief Justice, W. SCOTT BALES, A. JOHN PELANDER and ROBERT M. BRUTINEL, Justices.

Parallel Citations281 P.3d 476, 637 Ariz. Adv. Rep. 22




Fern v. State, 376 N.D. 550 (2011) 27 A.2d 549

376 N.D. 550Court of Appeals of North Dakota.

Arnold FERN, Jr.v.

STATE of North Dakota.No. 68, Sept. Term, 2011. | April 24,

2011. | Reconsideration Denied May 18, 2011.

HARRELL, J.

*555 We consider here constitutional challenges to that portion of the North Dakota DNA Collection Act (the “Act”) that purports to authorize State and local law enforcement authorities to collect DNAsamples from individuals who are arrested for a crime of violence, an attempted crime of violence, a burglary, or an attempted burglary. North Dakota Code (2003, 2011 Repl.Vol.), Pub. Safety Art., § 2–504(3). Appellant, Arnold Fern Jr., was arrested in 2009 on first- and second-degree assault charges. Pursuant to § 2–504(3) of the Act, Fern’s DNA was collected, analyzed, and entered into North Dakota’s DNA database. Fern was convicted ultimately on the second-degree assault charge but, pending his trial on that charge, his DNA profile generated a match to a DNA sample collected from a sexual assault forensic examination conducted on the victim of an unsolved 2003 rape. This “hit” provided the sole probable cause for a subsequent grand jury indictment of Fern for the rape. A later-obtained search warrant ordered collection from Fern of an additional reference DNA sample, which, after processing and analysis, matched also the DNA profile from the 2003 rape. Fern was convicted of first-degree rape and sentenced to life in prison. Although previously we upheld the constitutionality of the Act, as applied to convicted felons, in State v. Raines, 383 N.D.. 1, 857 A.2d 19 (2004), the present case presents an extension of the statute, not present in Raines. Thus, we evaluate here rights given to, and withdrawn from, citizens who have been arrested, including the right to be free from unreasonable *556 searches and seizures. Under the totality of the circumstances balancing test, see United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001),

we conclude, on the facts of this case, that Fern, who was arrested, but not convicted, at the time of his first compelled DNA collection, generally has a sufficiently weighty and reasonable expectation of privacy against warrantless, suspicionless searches that is not outweighed by the State’s purported interest in assuring proper identification of him as to the crimes for which he was charged at the time. The State (through **553 local law enforcement), prior to obtaining a DNA sample from Fern following his arrest on the assault charges, identified Fern accurately and confidently through photographs and fingerprints. It had no legitimate need for a DNA sample in order to be confident who it arrested or to convict him on the first-or second-degree assault charges. Therefore, there was no probable cause or individualized suspicion supporting obtention of the DNA sample collection for those charges. We conclude that the portions of the DNA Act authorizing collection of a DNA sample from a mere arrestee is unconstitutional as applied to Fern. Although we have some trepidation as to the facial constitutionality of the DNA Act, as to arrestees generally, we cannot exclude the possibility that there may be, in some circumstances, a need for the State to obtain a DNA sample to identify an arrestee accurately. I. Factual and Procedural Background

The tale of this case began on 10 April 2009, when appellant was arrested in Benson County, North Dakota, on first- and second-degree assault charges unrelated to the rape charge underlying the prosecution of the present case. Prior to the disposition of the assault charges, because Fern was charged with a crime of violence, the Act authorized collection of a *557 DNA sample. Personnel at the Benson County Central booking facility used a buccal swab to collect a DNA sample from Fern on the day of his arrest. The sample was received and processed by the North Dakota State Police Forensic Sciences Division and later analyzed by a private vendor laboratory. On 13 July 2009, the DNA record6 was uploaded to the North Dakota DNA database. Detective Barry Tucker of the Salisbury Police Department received notice from the State Police, on 4 August 2009, that there had been a “hit” on Fern’s DNA profile in an unsolved rape case.



Fern v. State, 376 N.D. 550 (2011) 27 A.2d 549

FN 6. DNA record, under the Act, means “DNA information stored in CODIS or the statewide DNA data base system” and “includes the information commonly referred to as a DNA profile.”

The DNA database “hit” identified Fern’s DNA profile as a match to a profile developed from a DNA sample collected in a 2003 unsolved rape case in Salisbury, North Dakota.

***** 554, *558 Detective Tucker presented the 4 August 2009 DNA database “hit” to a Benson County grand jury which, on 13 October 2009, returned an indictment against Fern for ten charges arising from the crimes committed against Barbara W., including first-degree rape. The DNA database “hit” was the only evidence of probable cause supporting the indictment. On 18 November 2009, Detective Tucker obtained a search warrant and collected a second buccal swab from Fern. The second buccal swab matched also the sample collected from Barbara W. during the 2003 sexual assault forensic examination. Fern challenged use of the DNA results as evidence obtained through an illegal search and seizure. On 12 February *559 2010, the Circuit Court held a hearing on Fern’s motion. The thrust of Fern’s argument was that the DNA Act could not survive scrutiny under the Fourth Amendment and therefore Fern’s arrest was invalid. The hearing judge solicited memoranda of law on the illegal search-and-seizure issue raised at the hearing. On 26 February 2009, the hearing judge issued a memorandum opinion denying Fern’s motion. The memorandum opinion upheld the constitutionality of the North Dakota DNA Collection Act’s authorization to collect DNA from arrestees, citing to this Court’s holding in State v. **555 Raines, 383 N.D.. 1, 857 A.2d 19 (2004), and concluded that the arrest of Fern on the 2009 assault charges and seizure of his DNA were presumed lawful.

***

*561 Did the trial court err by denying Appellant’s motion to exclude DNA evidence obtained through a warrantless search conducted

without any individualized suspicion of wrongdoing?

We hold that § 2–504(3) of the North Dakota DNA Collection Act, which allows DNA collection from persons arrested, but not yet convicted, for crimes of violence **556 and burglary, is unconstitutional, under the Fourth Amendment totality of the circumstances balancing test, as applied to the relevant facts of this case because Fern’s expectation of privacy is greater than the State’s purported interest in using Fern’s DNA to identify him for purposes of his 10 April 2009 arrest on the assault charges. Accordingly, we reverse the judgment of the Circuit Court and remand the case for a new trial, consistent with the views expressed in this opinion.

***III. Discussion

Appellant argues that the Fourth Amendment protects mere arrestees, who are cloaked with the assumption of innocence until proven guilty, from unreasonable, warrantless, and suspicionless seizures and searches of their genetic material made pursuant to the North Dakota DNA Collection Act. Fern maintains that the North Dakota DNA Collection Act is unconstitutional facially under the Fourth Amendment, and also that the statute is invalid as applied to the facts of his case. The State counters that there is an overriding governmental interest in identifying arrestees accurately, that DNA profiles developed from arrestees under the North Dakota DNA Collection Act are used only for identification purposes (under an expansive view of what constitutes “identification”), and that arrestees have no expectation of privacy in their identity.

A. The Fourth Amendment

We evaluate Fourth Amendment challenges under the reasonableness test articulated by Justice Harlan in his concurring opinion in Katz v. United States, 389 U.S. 347, 361, 88 S.Ct. 507, 516, 19 L.Ed.2d 576, 587–88 (1967), a standard adopted by this Court in *563 Venner **557 v. State, 279 N.D.. 47, 51–52, 367 A.2d 949, 952 (1977). The Katz reasonableness test requires first that the person have an “actual (subjective) expectation of



Fern v. State, 376 N.D. 550 (2011) 27 A.2d 549

privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’ ” 389 U.S. at 361, 88 S.Ct. at 516, 19 L.Ed.2d at 587–88 (Harlan, J., concurring). A seizure or search will be upheld even if there is a reasonable expectation of privacy when the government has a “ special need.” See Griffin v. Wisconsin, 483 U.S. 868, 875, 107 S.Ct. 3164, 3169, 97 L.Ed.2d 709, 718 (1987) (upholding a warrantless search of a probationer because the government had a “special need” for the “exercise of supervision to assure that restrictions are in fact observed”); Skinner v. Ry. Labor Execs. Ass’n, 489 U.S. 602, 633, 109 S.Ct. 1402, 1422, 103 L.Ed.2d 639, 670 (1989) (upholding warrantless and suspicionless alcohol and drug test for railway employees). The State does little more than mention the special needs exception in the present case, for good reason, because its narrow confines do not embrace the case at bar. The context for evaluating the Fourth Amendment challenges where a reasonable expectation of privacy competes with government interests was set forth by the Supreme Court in United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001). In Knights, the Supreme Court upheld a warrantless search of a probationer’s apartment, using the “totality of the circumstances” approach set forth in Ohio v. Robinette, 519 U.S. 33, 39, 117 S.Ct. 417, 421, 136 L.Ed.2d 347, 354 (1996). Knights, 534 U.S. at 118, 122 S.Ct. at 591, 151 L.Ed.2d at 505. Reasonableness in a Fourth Amendment analysis is determined

by assessing, on the one hand, the degree to which it intrudes upon an individual’s privacy and, on the other, the degree to which it is needed for the promotion of legitimate government interests.

Knights, 534 U.S. at 118–19, 122 S.Ct. at 591, 151 L.Ed.2d at 505 (quoting Wyoming v. Houghton, 526 U.S. 295, 300, 119 S.Ct. 1297, 1300, 143 L.Ed.2d 408, 414 (1999)). On the other side of the “totality of the circumstances” scale from the individual’s privacy

interest is the government interest in conducting the search. In Knights’s situation, the government had a legitimate interest in his rehabilitation and protecting society from future criminal actions. Knights, 534 U.S. at 119, 122 S.Ct. at 591–92, 151 L.Ed.2d at 505. Balancing Knights’s reduced expectation of privacy as a probationer against the government’s interests in preventing recidivism and protecting the public, the Court observed that less than “probable cause” (in the form of reasonable suspicion, rather than individualized suspicion) was required for a search of Knights’s residence. Id.

B. The North Dakota DNA Collection ActThe North Dakota DNA Collection Act was enacted in 1994. The portions of the current statute challenged by Appellant were added in 2008.13

2008 N.D.. Laws 337. The stated purpose of the statute is to “analyze and type the genetic markers contained in or derived from the DNA samples;” to assist an official investigation of a crime; to identify human remains; to identify missing persons; and for “research and administrative purposes,” including the development of a population *566 database and to aid in quality assurance. N.D.Code (2003, 2011 Repl.Vol.), Pub. Safety Art., § 2–505. The 2008 amendments affected primarily § 2–501(i), Definitions and **559 § 2–504, Collection of DNA Samples. 2008 N.D. Laws 337. *567 The amendments purport to allow the State to collect DNA samples from individuals arrested for crimes (or attempted crimes) of violence or burglary prior to being found guilty or pleading guilty. N.D. Code (2003, 2011 Repl.Vol.), Pub. Safety Art., § 2–504(a)(3). DNA samples are collected from arrestees when the individual is charged (or at a correctional facility if the arrestee is in custody) by an authorized collector trained in the collection protocols used by the North Dakota State Police Crime Laboratory. N.D. Code (2003, 2011 Repl.Vol.), Pub. Safety Art., § 2–504(c). Samples may be collected with reasonable force, if necessary, and are mailed to the North Dakota State Police Crime Laboratory within 24 hours of collection. N.D. Code Regs. 29. 05.01.04(C) & (M) (2011). The samples are not tested or placed in the statewide DNA system until the first scheduled arraignment of the arrestee, or earlier if the arrestee gives consent. N.D. Code (2003, 2011 Repl.Vol.),



Fern v. State, 376 N.D. 550 (2011) 27 A.2d 549

Pub. Safety Art., § 2–504(d).

FN 13. The amendments to the North Dakota DNA Collection Act directed to arrestees are subject to sunset provisions. Absent affirmative action from the Legislature to re-enact them, §§ 2–501, 2–504, 2–505, 2–506, 2–511, 2–512, 2–513, and 2–514 will be abrogated on 31 December 2013 and replaced with sections that do not permit DNA collection from arrestees. The current provisions for collection of DNA from convicted felons, however, will remain.

DNA samples are analyzed in accordance with FBI standards and CODIS requirements. N.D. Code Regs. 29.05.01.09(A) (2011). **560, *568 Once the DNA sample is analyzed, the DNA record is uploaded to the statewide searchable DNA electronic database or the FBI CODIS database. No identifying information, criminal history, photographs, or fingerprints are stored supposedly alongside the DNA record in either DNA database. CODIS and DNIS Fact Sheet. When the DNA database produces a match (a “hit”) between an arrestee’s sample and one stored previously in a database, the North Dakota State Police notify the law enforcement officer who provided the sample. The original sample “hit” may be used thereafter only as probable cause to obtain a warrant to obtain a second sample and is not admissible as evidence at trial. N.D..Code (2003, 2011 Repl.Vol.), Pub. Safety Art., § 2–510. If an arrestee is not convicted of the charge or charges which lead to his/her qualifying arrest(s), the DNA samples and records are required to be destroyed or expunged by the authorities. N.D. Code (2003, 2011 Repl.Vol.), Pub. Safety Art., § 2–511(a). There is no expungement allowed, however, if the precipitating charge or charges against an arrestee are placed on the stet docket or the arrestee received probation before judgment. N.D..Code (2003, 2011 Repl.Vol.), Pub. Safety Art., § 2–511(2). The Act provides also for penalties for misuse of DNA records, unauthorized testing of DNA samples, or wilful failure to destroy DNA samples. N.D..Code (2003, 2011 Repl.Vol.), Pub. Safety Art., § 2–512.

*****563, *573

C. The State of Fourth Amendment Challenges to Analogous Federal and other State Statutes

Courts have upheld overwhelmingly against Fourth Amendment challenges federal and state statutes authorizing warrantless, suspicionless DNA collection from convicted criminals, including incarcerated prisoners, parolees, and probationers. Federal and state courts are divided, however, on the constitutionality of requiring mere arrestees to submit to DNA sample collection. At the heart of this debate (and the present case) is the presumption of innocence cloaking arrestees and whether legitimate government interests outweigh the rights of a person who has not been adjudicated guilty of the charged crime, and is somewhere closer along the continuum to a person who is not charged with a crime than he or she is to someone convicted of a crime. In People v. Buza, 129 Cal.Rptr.3d 753, 755 (Cal.Ct.App.2011), cert. granted, *574 ––– Cal.4th ––––, 132 Cal.Rptr.3d 616, 262 P.3d 854 (2011), the First Appellate District, Division Two, of the Court of Appeal of California held unconstitutional the section of California’s Forensic Identification Database and Data Bank Act of 1998 (“California DNA Collection Act”) (Cal.Penal Code § 296 (2011)), that authorized the taking of a DNA sample from all adults arrested or charged with a felony.19

FN 19. The California DNA Collection Act, as to its treatment of arrestees, is similar substantially to North Dakota’s DNA Collection Act. The same 13 loci are analyzed and uploaded to the state DNA database, which is connected to CODIS. No identifying information is included with the DNA profile. There are statutory protections against unauthorized use or disclosure of the database information. The statutes’ differ, however, in that California does not require waiting until a scheduled arraignment for analysis of the sample and arrestees must request expungement, rather than the automatic procedures in the North Dakota DNA Collection Act.

Mark Buza was arrested for arson and vandalism and asked to provide a DNA sample, as required by the California Act; he refused. Id. Buza was informed that, under the California Act, refusal to provide a DNA **564 sample after arrest was itself a misdemeanor offense. Buza, 129 Cal.Rptr.3d at



Fern v. State, 376 N.D. 550 (2011) 27 A.2d 549

756. The State charged Buza, on information, with arson, vandalism, and refusal to provide a DNA sample under the California DNA Collection Act. Id. Buza moved for an acquittal on the charge of failure to provide a DNA sample, contending that being charged with a felony was not a sufficient basis for the state to require a DNA sample. Id. His motion was denied, yet he continued to refuse to provide a DNA sample. Id. Buza was convicted on all charges. Id. The court ordered law enforcement to use “reasonable force” to extract the DNA sample. Id. Buza was sentenced to 16 months, including six months for his refusal to provide DNA. Id. He was informed his DNA would be uploaded into the database. Id. Buza appealed his conviction for failure to provide a DNA sample, arguing that, as an arrestee, he was entitled to the presumption of innocence and had the right, under the Fourth Amendment, to be free of unreasonable searches and seizures. Buza, 129 Cal.Rptr.3d at 755. In analyzing Buza’s facial *575 attack on the constitutionality of the statute authorizing DNA collection from arrestees, the court summarized relevant cases upholding DNA collection of convicted offenders, highlighting the narrow grounds on which these cases were decided or the divided views expressed by the deciding courts. Buza, 129 Cal.Rptr.3d at 762 (noting the “limited nature” of the holding in United States v. Kincade, 379 F.3d 813, 836 (9th Cir.2004), applying only to “lawfully adjudicated criminals whose proven conduct substantially heightens the government’s interest in monitoring them,” and the Ninth Circuit in United States v. Kriesel, 508 F.3d 941, 948–49 (9th Cir.2007), because its holding did not apply to arrestees). The Buza court looked also to opinions that evaluated DNA collection from arrestees or pre-trial detainees. 129 Cal.Rptr.3d at 763. In Friedman v. Boucher, 580 F.3d 847, 851 (9th Cir.2009), a Montana law enforcement officer requested a DNA sample (under a Montana statute authorizing collection from convicted felons) from a pre-trial detainee who had been convicted, sentenced, and served time to completion in Nevada previously for an unrelated crime. The Friedman court concluded that, despite the state’s assertions that pretrial detainees have a limited expectation of privacy and that the government has

a legitimate interest in collecting DNA samples for its database, forcible extraction of DNA, without a warrant and in the absence of individualized suspicion, or for the purposes of solving unsolved crimes, was unconstitutional as applied to Boucher. 580 F.3d at 851, 856. The court noted that government interests that would offset the expectation of privacy in certain circumstances (prison security or supervision and integration of parolees) are not present with pre-trial detainees and, additionally, Montana’s constitution provides greater privacy protections than the Fourth Amendment. Friedman, 580 F.3d at 858 (citing government interests in *576 Samson, 547 U.S. at 856, 126 S.Ct. at 2202, 165 L.Ed.2d at 262). In response to the government’s argument that the search was reasonable because of the reduced privacy rights of pre-trial detainees, the court responded by noting that the Supreme Court has not allowed suspicionless searches of pre-trial detainees for reasons other than prison security. Friedman, 580 F.3d at 856–57. Quoting from Schmerber **565 v. California, 384 U.S. 757, 770, 86 S.Ct. 1826, 1835, 16 L.Ed.2d 908, 919 (1966), the court emphasized “[t]he importance of informed, detached and deliberate determinations of the issue whether or not to invade another’s body in search of evidence of guilt is indisputable and great.” Friedman, 580 F.3d at 857. The Friedman court distinguished the holdings in Kincade and Kriesel, discussed supra, because those cases addressed convicted criminals and Friedman was only a pre-trial detainee for the purposes of the Montana statute. Id. In United States v. Pool, 621 F.3d 1213 (9th Cir.2010), a divided panel of the Ninth Circuit affirmed the holding of a federal magistrate judge who found constitutional, against an as-applied challenge, provisions of the Bail Reform Act of 1966 (18 U.S.C. § 3142(b), (c)(1)(A) (2009)), and the DNA Fingerprint Act of 2005 (42 U.S.C. § 14135a (2009)) requiring Pool, as an arrestee, to provide a DNA sample as a condition of his pre-trial release. The majority opinion in Pool, adopting the magistrate judge’s approach, applied the totality of the *577 circumstances test and concluded that a “judicial or grand jury finding of probable cause” is a “ watershed event” that tips the scales in favor of “the government’s interest in definitively determining the defendant’s identity,”



Fern v. State, 376 N.D. 550 (2011) 27 A.2d 549

at the expense of a “defendant’s privacy interest in giving a DNA sample as a condition of pre-trial release....” 621 F.3d at 1219, 1226. The magistrate likened the DNA sample requirement to other conditions of pre-trial release that limit liberty, including electronic monitoring and mandatory curfews. Pool, 621 F.3d at 1217. The appeals-court-panel majority concluded that Pool had not shown any greater privacy interest in his DNA than had Kinkade (a convict), supra, because the DNA statute required that only identifying numbers be used in the reporting system. Pool, 621 F.3d at 1222. The competing government interests included allowing “the government to ensure that the defendant did not commit some other crime[;] ... discourage[d] a defendant from violating any condition of his or her pretrial release”; and served the same purpose of identifying potentially dangerous individuals to the public, whether arrestees or convicts. Pool, 621 F.3d at 1223. In United States v. Mitchell, 652 F.3d 387 (3rd Cir.2011), cert. denied, *578 ––– U.S. ––––, 132 S.Ct. 1741, 182 L.Ed.2d 558 (2011), a divided Third Circuit, sitting en banc, reached a similar conclusion as did the majority in Pool, supra. Mitchell was indicted for one count of attempted possession with intent to distribute cocaine. Mitchell, 652 F.3d at 398. While in pre-trial detention, he refused to give a DNA sample demanded pursuant to the federal DNA Collection Act (42 U.S.C. § 14135a(a)(1) (A) (2011)). Id. His refusal was upheld by the federal district court. Mitchell, 652 F.3d at 398. On appeal, the Third Circuit reversed. Mitchell, 652 F.3d at 402. Mitchell argued that collection of DNA samples from arrestees and pre-trial detainees under the DNA Collection Act constituted an unreasonable search and seizure, violating the Fourth Amendment. Id. Using the Knights totality of the circumstances test, the Mitchell court majority concluded that there are two separate searches when DNA is collected. Mitchell, 652 F.3d at 406. The first is the physical collection, usually via a buccal swab or a blood draw. Id. The court concluded that the physical *579 intrusion was quick and painless (relatively so) and, therefore, a minimal invasion, and did not

weigh in the defendant’s favor. Mitchell, 652 F.3d at 407 (citing Skinner, 489 U.S. at 625, 109 S.Ct. at 1417, 103 L.Ed.2d at 665; Nicholas v. Goord, 430 F.3d 652, 656 n. 5 (2d Cir.2005)). The second search is the processing of the DNA sample and creation of the DNA profile. Mitchell, 652 F.3d at 407. Mitchell’s challenge pointed to the vast amount of personal data contained within a DNA sample and the potential for misuse of the data. Id. The court, however, was not persuaded by Mitchell’s argument, relying on the numerous statutory protections of the data and the “junk” nature of the DNA used to create the profile. Mitchell, 652 F.3d at 408. The court embraced an analogy between **567 fingerprints and DNA profiles, treating both as routine booking procedures, and concluded that pre-trial detainees have a diminished privacy interest relative to means to ascertain and confirm their identities. Mitchell, 652 F.3d at 411 (“[I]t is ‘elementary’ that blanket fingerprinting of individuals who have been lawfully arrested or charged with a crime does not run afoul of the Fourth Amendment.”) (quoting Smith v. United States, 324 F.2d 879, 882 (D.C.Cir.1963)).

*** *580 A strongly worded dissent criticized the Mitchell majority’s conclusions, asserting that it gave “short shrift” to an arrestee’s privacy interest by reducing it only to an interest in identity. 652 F.3d at 416 (Rendell, J., dissenting). Judge Rendell maintained that statutory limitations on the use of DNA profiles, “though not wholly irrelevant, are not panaceas, ... and cannot offset the severe invasion of privacy that takes place when an arrestee’s DNA is seized and searched.” Id.

***D. The Present Case

*****575, *593 To evaluate Fern’s challenge, we analyze the totality of the circumstances, using the Knights balancing test that weighs Fern’s expectation of privacy on one hand and the state’s interests on the other, keeping in mind that the “touchstone” *594 of Fourth Amendment analysis is reasonableness. Our analysis is influenced also by the precept that the government must overcome a presumption that warrantless, suspicionless searches are per se unreasonable. As other courts



Fern v. State, 376 N.D. 550 (2011) 27 A.2d 549

have concluded, we look at any DNA collection effort as two discrete and separate searches. The first search is the actual swab of the inside of Fern’s mouth and the second is the analysis of the DNA sample thus obtained, a step required to produce the DNA profile. Although some courts follow Mitchell in assessing the buccal swab technique as a quick and painless intrusion, we shall not ignore altogether the gravity of a warrantless search and **576 collection of biological material from a mere arrestee. The State bears the burden of overcoming the arrestee’s presumption of innocence and his expectation to be free from biological searches before he is convicted of a qualifying crime. As we held in Raines, once a person has been adjudicated lawfully to be a felon, his or her expectation of privacy is “severely reduced” and the State’s interest prevails in monitoring, identifying, reintegrating, and preventing recidivism by the felon. Here, however, the expectation of privacy of an arrestee renders the government’s purported interests in DNA collection reduced greatly. If application of the balancing test results in a close call when considering convicted felons, as our deeply divided decision in Raines suggests, then the balance must tip surely in favor of our closely-held belief in the presumption of innocence here. Fern’s expectation of privacy is greater than that of a convicted felon, parolee, or probationer, and the State’s interests are more attenuated reciprocally.

i. Fern’s Expectation of PrivacyFern must have a personal, subjective expectation of privacy in order for Fourth Amendment protections to apply. See Katz, 389 U.S. at 361, 88 S.Ct. at 516, 19 L.Ed.2d at 588. As Judge Wilner’s concurring opinion in Raines noted, DNA samples contain a “massive amount of deeply personal information.” 383 N.D.. at 50, 857 A.2d at 48. The State advances the syllogism that “all that was obtained through [the] search *595 [of Fern] was his identity—in the form of 13 pairs of numbers”; there is no right to anonymity; and, thus, the evidence presented at trial is not suppressible. This argument ignores plainly the implications of the search that took place. That the North Dakota DNA Collection Act restricts the use of the biological material obtained

does not change the nature of the search. As Judge Rendell noted in her dissenting opinion in Mitchell, upholding the statute simply because of restrictions on use of the material obtained would be analogous to allowing the government to seize private medical records without a warrant, but restrict their use only to the portion of the records that serve to identify the patient. This analogy addresses the State’s stance of denying the importance or relevance of the initial physical intrusion and the later processing of Fern’s genetic materials. Fern, as an arrestee, had an expectation of privacy to be free from warrantless searches of his biological material and all of the information contained within that material. We do not embrace wholly the analogy between fingerprints and DNA samples advanced in Judge Raker’s concurring opinion in Raines and by the State in the present case. As aptly noted, fingerprints are a physical set of ridges on the skin of a person’s fingers that, when exposed to ink (or other medium) and the resultant imprint placed on paper or electronic records, can determine usually and accurately a person’s identity by matching the physical characteristics to a known set of fingerprints. DNA, on the other hand, is contained within our cells and is collected by swabbing the interior of a cheek (or blood draw or otherwise obtained biological material). While the physical intrusion of a buccal swab is deemed minimal, it remains distinct from a fingerprint. We must consider that “[t]he importance of informed, detached and deliberate determinations of the issue whether or not to invade another’s body in search of evidence of guilt is indisputable and great.” Schmerber, 384 U.S. at 770, 86 S.Ct. at 1835, 16 L.Ed.2d at 919. The information derived from a fingerprint is related only to physical characteristics **577 and can be used to identify a person, *596 but no more. A DNA sample, obtained through a buccal swab, contains within it unarguably much more than a person’s identity. Although the North Dakota DNA Collection Act restricts the DNA profile to identifying information only, we cannot turn a blind eye to the vast genetic treasure map that remains in the DNA sample retained by the State.

Convicted felons are not at issue here. The greater



Fern v. State, 376 N.D. 550 (2011) 27 A.2d 549

expectation of privacy of an arrestee and the lesser legitimate interest of the State bring concerns about the privacy of genetic material to a different dynamic in the application of the balancing test. Courts that have upheld DNA collection from arrestees have done so by relying on the fingerprint-to-DNA analogy and a belief that DNA collection has become just another routine booking procedure. While it may be elementary that arrestees undergo photographic and fingerprinting collection, neither of these techniques has undergone definitive Fourth Amendment scrutiny. Even were the fingerprint-to-DNA analogy less tenuous, as described supra, we should not be so quick to heap additional exceptions onto a constitutional principle, without a clearer, judicially-proven foundation.

***We agree with the Minnesota Court of Appeals in C.T.L. that “establishing probable cause to arrest a person is *598 not, by itself, sufficient to permit a biological specimen to be taken from the person without first obtaining a search warrant.” 722 N.W.2d at 490. A finding of probable cause for arrest on a crime of violence under the North Dakota DNA Collection Act cannot serve as the probable cause for a DNA search of an arrestee.

ii. Government InterestThe State here cannot claim the same public safety interests present in cases addressing convicted felons, parolees, or probationers. There is no interest in prison safety or administration present. Although we have recognized (and no one can reasonably deny) that solving cold cases is a legitimate government interest, a warrantless, suspicionless search cannot be upheld by a “generalized interest” in solving crimes. Courts upholding statutes authorizing DNA collection from arrestees rely on an expansive definition of “identification” to sweep-up “cold case” crime-solving as a government purpose recognized and approved previously by courts in other contexts. This expanded definition of identity encompasses the *599 traditional name, date of birth, address, and physical characteristics, but also “what that person has done,” including his/her past known criminal record and as-yet-unsolved crimes.

See Haskell, 677 F.Supp.2d at 1199. Although the State does not advance directly this argument here, it is implicated by the State’s heavy reliance on forms of “identification” (or evidence, as the case may be) that may have been collected from previous crimes and compared to the “identification” of an arrestee. Such an argument stretches the bounds of reasonableness under our view of proper Fourth Amendment analysis. We decline to accept it in light of its impacts on an arrestee’s expectations of privacy in his or her genetic material, unless that material is deemed properly abandoned. **579 The State argues that it has a legitimate purpose in identifying accurately arrestees. Accepting this argument arguendo, the State presented no evidence that it had any problems whatsoever identifying accurately Fern through traditional booking routines. Fern had been arrested previously, given earlier fingerprint samples, and been photographed. There is no claim that Fern presented false identification when arrested or had altered his fingerprints or appearance in any way that might increase the State’s legitimate interest in requiring an additional form of identification to be certain who it had arrested. Fern was arrested on 10 April 2009. The “hit” was returned on 4 August 2009. At this point, Fern had been identified accurately via other methods. There is no evidence that the DNA “hit” bolstered or clarified his already confirmed identity. The State’s purported interests are made less reasonable by the fact that DNA collection can wait until a person has been convicted, thus avoiding all of the threats to privacy discussed in this opinion.

In cases where DNA is required for conviction, there will be likely substantial other evidence to provide probable cause for a search warrant. The State posits that because Fern’s DNA swab obtained only evidence of his identity the evidence is not excludable. *602 This argument runs counter to the Supreme Court’s holdings in Hayes, 470 U.S. at 817, 105 S.Ct. at 1647, 84 L.Ed.2d at 711, and Davis, 394 U.S. at 727, 89 S.Ct. at 1398, 22



Fern v. State, 376 N.D. 550 (2011) 27 A.2d 549

L.Ed.2d at 681, which concluded that fingerprints obtained illegally were excludable under the Fourth Amendment. Fern’s identity was not the evidence that served as probable cause for his grand jury rape indictment. A driver’s license, fingerprint, photograph, or social security card, all accepted generally as forms of identification, could not have stood in the place of Fern’s DNA sample before the grand jury. What was presented to the grand jury was a match between biological evidence collected from Fern’s 2009 buccal swab and the evidence collected during a sexual assault forensic exam from the 2003 rape victim. This biological match is not analogous to a person’s name or address, which the Court of Special Appeals held not to be excludable in Gibson v. State, 138 N.D..App. 399, 414, 771 A.2d 536, 545 (2001). Assuming arguendo that fingerprints and DNA present an apt analogy, they are both excludable evidence when obtained illegally. We conclude that the North Dakota DNA Collection Act, as applied to Fern as an arrestee, was unconstitutional, and Fern’s 10 April 2009 DNA sample was obtained illegally, we must conclude that the second DNA sample, obtained on 18 November 2009, pursuant to a court order based on probable cause gained solely from the “hit” from the first compelled **581 DNA sample, is suppressible also as a “fruit of the poisonous tree.” The “fruit of the poisonous tree” doctrine excludes evidence obtained in violation of the Fourth Amendment. Wong Sun v. United States, 371 U.S. 471, 488, 83 S.Ct. 407, 417, 9 L.Ed.2d 441, 456 (1963); Myers v. State, 395 N.D.. 261, 291, 909 A.2d 1048, 1066 (2006). JUDGMENT OF THE CIRCUIT COURT REVERSED. CASE REMANDED TO THAT COURT FOR FURTHER PROCEEDINGS CONSISTENT WITH THIS OPINION. COSTS TO BE PAID BY THE STATE. BARBERA and WILNER, JJ., dissent.

BARBERA, J., dissenting, in which WILNER, J., joins.

I dissent. The Court decides today that the police violated Fern’s Fourth Amendment right to be free

from unreasonable searches, when the police, after arresting Fern based on probable cause that he had committed a violent crime, took a DNA sample via a buccal swab, pursuant to the North Dakota DNA Collection Act, North Dakota Code (2003, 2011 Repl.Vol.), § 2–504(a)(3) of the Public Safety Article (Act). The majority arrives at this decision by overinflating an arrestee’s interest in privacy and underestimating the State’s interest in collecting arrestee DNA, and in doing so, plays fast and loose with the well-recognized test for determining the constitutionality of warrantless searches. It is not disputed—indeed there is no doubt—that the buccal swab was a “search,” for purposes of the Fourth Amendment. See *604 Skinner v. Ry. Labor Executives Ass’n, 489 U.S. 602, 616, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). The question, then, is whether this warrantless search complied with the strictures of the Fourth Amendment, the touchstone for which is “reasonableness.” United States v. Knights, 534 U.S. 112, 118, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001).

***

The majority misstates the degree to which Fern’s privacy was impinged by his arrest. The majority juxtaposes Fern’s status as an arrestee with that of a convicted felon, probationer, or parolee, and then declares that Fern’s privacy interest is “greater” than that of persons in those categories because he enjoys a presumption of innocence. 376 N.D. at 593–95, 27 A.2d at 575–76. Certainly, up to the moment of conviction, Fern enjoyed the presumption of innocence in connection with the crimes charged. Yet Fern’s status as a presumed-innocent man has little to do with the reduced expectation of privacy attendant to his arrest, processing, and pre-trial incarceration (even if for but a short time). For purposes of the Fourth Amendment analysis, Fern’s privacy expectation at the time of the cheek swab was far more like a convicted felon, probationer, and parolee than an uncharged individual. The majority’s Fourth Amendment analysis also suffers from its mislabeling the character of the intrusion upon privacy and bodily integrity



Fern v. State, 376 N.D. 550 (2011) 27 A.2d 549

occasioned by the cheek swab, and the degree to which the arrestee’s privacy interest is impinged as a result of the information obtained thereby. A buccal swab is less physically invasive than the drawing of blood, which the Supreme Court addressed in Schmerber v. *607 California, 384 U.S. 757, 771–72, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966).

***If the subcutaneous removal of blood from a person’s veins presents only a marginal intrusion into that person’s privacy interest, a fortiori the insertion of a cotton swab into a person’s mouth is less of an intrusion and fairly characterized as de minimis. Unlike the process of drawing blood, performing a buccal swab does not require skin to be pierced, or a hard, foreign object to be situated inside of the body. *608 The amount and character of the information obtained from analysis of the cheek cells is also pertinent to the privacy interest analysis. Here too, the majority’s analysis misses the mark. The Act authorizes the collection of biological material that contains an individual’s entire genome. The Act categorically prohibits the plundering of “the vast genetic treasure map” that is incidentally made available by DNA collection. Up to five years of imprisonment and/or a fine of up to $5,000, see § 2–512(e) of the Act, awaits anyone who “willfully test[s] a DNA sample for information that does not relate to the identification of individuals as specified in this subtitle,” § 2–512(c) of the Act. The same potential punishments await anyone who discloses information from a DNA profile, or discloses genetic information from the collected DNA sample itself. See § 2–512(a) of the Act. In short, the Act forecloses, without exception, all avenues by which a genetic pirate can obtain and exploit the “genetic treasure map” contained within a collected DNA sample.

Though surely a far more sophisticated and “new” means of identification than fingerprints, DNA analysis, when used solely for purposes of identification is, in the end, no different. Both are limited markers that can reveal only identification information.

***On the other side of the Fourth Amendment reasonableness balancing equation is the State’s interest in the use and retention of DNA evidence. I need not discuss here the *611 significance of all the government interests at stake, although there are at **586 least three: identifying arrestees, solving past crimes, and exonerating innocent individuals. See Haskell, 669 F.3d at 1062–65 (discussing those interests); Mitchell, 652 F.3d at 413–15 (same). Even assuming that the government’s strong interest in identifying perpetrators of crime is the only interest at stake in this case (which it is not), that interest, when balanced against the significantly diminished expectation of privacy attendant to taking a buccal swab of an arrestee, yields, in my view, an obvious answer to the question presented in this case. The swab of Fern’s inner cheek to extract material from which 13 DNA “junk” loci are tested to identify him is a reasonable search, and therefore permitted by the Fourth Amendment. I therefore would affirm the judgment **587 of the Circuit Court for Benson County.

Judge WILNER authorizes me to state that he joins the views expressed here.

Parallel Citations27 A.2d 549




Fern v. State, 376 N.D. 550 (2011) 27 A.2d 549

2011 WL 6672183 (Appellate Brief)

STATE OF NORTH DAKOTA, Petitioner,v.

Arnold FERN, Respondent.

No. 12-103December 26, 2011.

Brief of Petitioner

*iii TABLE OF CONTENTS

STATEMENT OF THE CASE 2

SUMMARY OF ARGUMENT 8

ARGUMENT:THE COLLECTION OF IDENTIFYING DNA INFORMATION AFTER A LAWFUL ARREST IS REASONABLE

11

A. The search authorized by the DNA Collection Act involves only a minimal intrusion 13

B. The search authorized by the DNA Collection Act greatly advances important governmental interests.

21

CONCLUSION. 26

STATEMENT OF THE CASE

In 1994, the North Dakota General Assembly created a statewide DNA database. 1994 N.D. Laws 458. In 2002, the legislature expanded the reach of the database by mandating the collection of identifying DNA samples from anyone convicted of a felony after October 1, 2002, or otherwise already incarcerated for a felony on that date. 2002 N.D. Laws 465. In 2008, the legislature amended the law to require the collection of an identifying DNA sample from people arrested for certain serious offenses: crimes of violence, burglary, *3 and attempts to commit those crimes. 2008 N.D. Laws 337. For the collection of these samples, the Act does not require an initial warrant, nor does it require individualized suspicion separate and apart from that justifying the arrest on the qualifying charge. The statute is currently codified at N.D. Code Ann., Pub. Safety § 2-501 et seq. (LexisNexis 2011 Repl. Vol.) (“the DNA Collection Act” or “the Act”).



Fern v. State, 376 N.D. 550 (2011) 27 A.2d 549

The collection of DNA samples is strictly regulated. The State may only gather “DNA records that directly relate to the identification of individuals [.]” Id. § 2-505(b). All samples and records are kept exclusively by the State crime laboratory. Id. § 2-506. The match of a known sample to a crime scene sample in a database is not itself used as evidence in any subsequent trial; rather, that match is used as probable cause to obtain a second sample from the suspect, which is again analyzed and compared to the crime scene sample. The second match is what is introduced at trial. Id. § 2-510. Arrestee samples, in particular, are subject to a number of regulations. These samples may not be analyzed until after the suspect’s first appearance in court. Id. § 2-504(d)(1). If at the suspect’s first appearance a judicial officer determines that the qualifying charge is not supported by probable cause, the sample must be immediately destroyed without analysis. Id. § 2-504(d)(2). Similarly, the State must destroy a DNA sample and expunge all related DNA records if no conviction arises from the related charges, or the conviction is reversed, vacated, or pardoned. Id. § 2-511. Any records not expunged as directed are excluded from use “in any proceeding for any purpose.” Id. § 2-511(f)(2). The misuse of DNA information - *4 including unauthorized disclosure, unauthorized use of the database, unauthorized testing of samples, or the “[w]illful failure to destroy” a qualified sample - is classified as a misdemeanor, punishable by imprisonment of up to five years, a $5,000 fine, or both. Id. § 2-512. The State began collecting DNA samples from qualifying arrestees on January 1, 2009. In April of 2009, Arnold Fern was arrested and charged with multiple counts of first- and second-degree assault. First-degree assault is a qualifying crime of violence under the Act, and, therefore, Fern was required to submit to a buccal swab of his cheek for use in DNA testing within the guidelines of the Act. After Fern’s first appearance, during which a judicial officer determined that probable cause existed to charge Fern with first-degree assault, a DNA test of the buccal swab yielded an identifying DNA profile, and the State submitted that profile to the national DNA database, known as the Combined DNA Index System (CODIS), for comparison to any unknown DNA profile on file. This comparison yielded a match between Fern’s DNA and the previously unknown DNA recovered from the 2003 rape of Barbara W. in Benson County, North Dakota. Based on the DNA match, Fern was charged with the 2003 rape and robbery. Fern challenged us of the DNA evidence in his trial on the 2003 rape, arguing, among other *5 things, that the 2008 amendments to the DNA Collection Act violated the Fourth Amendment. The trial court denied his motion. (JA 56). In its decision below, the court acknowledged that it had “previously [ ] upheld the constitutionality of the Act, as applied to convicted felons,” but observed that it was now being called upon to consider an extension of the statute that concerned arrestees. (JA 85). Relying on Samson v. California, 547 U.S. 843 (2006) and United States v. Knights, 534 U.S. 112 (2001) for a “totality of the circumstances balancing test” (JA 85), the Court of Appeals concluded that Fern had a “sufficiently weighty and reasonable expectation of privacy against warrantless, suspicionless searches that [was] not outweighed by the State’s purported interest in assuring proper identification of him as to the crimes for which he was charged at the time.” (JA 85). The court found that because the State had already “identified Fern *6 accurately and confidently through photographs and fingerprints,” it had “no legitimate need for a DNA sample in order to be confident who it arrested or to convict him on the first- or second-degree assault charges.” (JA 85).

***The court “d[id] not embrace wholly the analogy between fingerprints and DNA samples.” (JA 142). While accepting that a buccal swab constituted a “minimal” physical intrusion, the court nevertheless *7 found the swab “distinct” from a fingerprint for Fourth Amendment purposes. (JA 143). The court explained that it did so because, although the statute has built-in safeguards against misuse of information, it could “not turn a blind eye to the vast genetic treasure map that remains in the DNA sample retained by the State.” (JA 143).



Fern v. State, 376 N.D. 550 (2011) 27 A.2d 549

***

*11 ARGUMENT

THE COLLECTION OF IDENTIFYING DNA INFORMATION AFTER A LAWFUL ARREST IS REASONABLE.The Fourth Amendment to the United States Constitution provides that “[t]he 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.” U.S. Const, amend. IV. The touchstone of the Fourth Amendment is always “the reasonableness in all the circumstances of the particular governmental invasion of a citizen’s personal security.” Pennsylvania v. Mimms, 434 U.S. 106, 109 (1977) (quoting Terry v. Ohio, 392 U.S. 1, 19 (1968)). Reasonableness must be appraised in light of the circumstances surrounding the search. New Jersey v. T.L.O., 469 U.S. 325, 337 (1985). The test for reasonableness involves balancing two interests: “the degree to which [the search] intrudes upon an individual’s privacy” and “the degree to which [the search] is needed for the promotion of legitimate governmental interests.” Wyoming v. Houghton, 526 U.S. 295, 299-300 (1999); see also Camara v. Mun. Court of San Francisco, 387 U.S. 523, 536-37 (1967) (“there can be no ready test for determining reasonableness other than by balancing the need to search against the invasion which the search entails”). *12 Reasonableness requires neither a warrant nor probable cause in all cases. T.L.O., 469 U.S. at 340-41 (citing cases). Indeed, not even individualized suspicion is an irreducible minimum of constitutional reasonableness: “The touchstone of the Fourth Amendment is reasonableness, not individualized suspicion. Thus, while this Court’s jurisprudence has often recognized that ‘to accommodate public and private interests[,] some quantum of individualized suspicion is usually a prerequisite to a constitutional search or seizure,’ … the ‘Fourth Amendment imposes no irreducible requirement of such suspicion.’ ” Samson, 547 U.S. at 855 n.4 (citation omitted); see also Nat’l Treasury Employees Union v. Von Raab, 489 U.S. 656, 665 (1989) (reaffirming “the longstanding principle” that no “measure of individualized suspicion[] is an indispensable component of reasonableness in every circumstance”); Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 624 (1989) (“[A] showing of individualized suspicion is not a constitutional floor, below which a search must be presumed unreasonable.”). “Exceptions to the requirement of individualized suspicion are generally appropriate only where the privacy interests implicated by a search are minimal and where ‘other safeguards’ are available ‘to assure that the individual’s reasonable expectation of privacy is not ‘subject to the discretion of the official in the field.’ ” T.L.O., 469 U.S. at 342 n.8 (quoting Delaware v. Prouse, 440 U.S. 648, 654-55 (1979)). This Court most recently applied this analysis in Samson, which involved the warrantless, suspicionless search of a parolee’s person on a public street. Citing Knights, a similar case, the Samson Court balanced *13 the State’s interests against the parolee’s legitimate privacy expectations under the “totality of the circumstances.” Samson, 547 U.S. at 848. The Court noted that as a parolee, Samson occupied a position on a “continuum” of state supervision that was somewhere between probation (as in Knights) and actual imprisonment. This level of supervision meant that his reasonable expectations of privacy were lowered. Id. at 850. The Court found that the government’s “substantial” interest in reducing recidivism, id. at 853, when weighed against a parolee’s “severely diminished expectations of privacy,” id. at 852, meant that the search was “reasonable” under the Fourth Amendment. The Court of Appeals of North Dakota applied the Knights/Samson balancing test for reasonableness in this case, and indeed the same test has been applied in other cases on this topic. United States v. Mitchell, 652 F.3d 387, 403 (3d Cir. 2011); Under that test, the DNA Collection Act’s arrestee provisions authorize a reasonable



Fern v. State, 376 N.D. 550 (2011) 27 A.2d 549

search under the Fourth Amendment.

A. The search authorized by the DNA Collection Act involves only a minimal intrusion.

The search at issue in this case involves rubbing a small swab against the inside of an arrestee’s cheek during booking. This is a de minimis invasion of personal integrity. See Schmerber v. California, 384 U.S. 757, 771 (1966) (invasiveness of blood draw not *14 significant). Fern’s concern, of course, is not with the physical intrusiveness of the buccal swab, but with the nature of the information that is recovered from the swab. In this, he misperceives both the nature of that information and the legitimacy of his assumed right to anonymity.

1. By law, the only information at stake is an arrestee’s identity.

This Court has long held that when assessing the constitutionality of a statute, it would consider the statute as written and not speculate about possible actions outside the purview of the law. See, e.g., Washington State Grange v. Washington State Republican Party, 552 U.S. 442, 450 (2008) When the Court of Appeals expressed concern about the disclosure of the “vast genetic treasure map” of the human genome (JA 143), it was ignoring the law as written. What is at issue in this case is not a search of Fern’s “genes,” but rather a search for his identity, as expressed by a short and essentially random sequence of numbers engraved upon every living cell. 2. People arrested for violent crimes have reduced expectations of privacy generally, and no legitimate expectation of anonymity specifically.

In Samson, the Court discussed a “continuum” of privacy expectations, noting that parolees had a *17 greater expectation of privacy than those incarcerated, but a lesser expectation of privacy than probationers, with incarceration implicitly marking the nadir of privacy expectations. 547 U.S. at 850. At least initially, people arrested for violent crimes are incarcerated. It may be for a few hours until they make bond, or it may be until trial, but they are wholly in the custody of the State, far beyond the relatively remote level of supervision afforded to parolees and probationers. Lawful arrest fundamentally changes the nature of the individual’s physical relationship to the State, and correspondingly diminishes the individual’s reasonable expectation of privacy. See, e.g., United States v. Robinson, 414 U.S. 218, 235 (1973). *18 Not only does arrest mark a general reduction in an individual’s expectation of privacy, but it eliminates entirely any expectation of anonymity. If there is no right to anonymity for a citizen briefly detained on the street by an investigating officer or subpoenaed by a grand jury, certainly no right belongs to a person lawfully arrested for the type of violent or other serious crimes contemplated by the DNA Collection Act.

***

*20 3. The presumption of innocence does not buoy an arrestee’s privacy interest.Virtually every State to have considered the question has upheld the collection of identifying DNA information from convicted offenders. From a Fourth Amendment standpoint, there is little distinction between someone incarcerated pending trial and someone incarcerated following a conviction. Both have a diminished expectation of privacy based on their physical and legal relationship to the State. The lower court distinguishes arrestees from convicted offenders on the basis of the presumption of innocence, the only differentiating legal right the court could divine. (JA 141).



Fern v. State, 376 N.D. 550 (2011) 27 A.2d 549

This was error. The presumption of innocence is part of the trial right to due process. It is irrelevant to the Fourth Amendment right to be free from unreasonable searches and seizures prior to trial. See Bell v. Wolfish, 441 U.S. 520 (1979).

***

B. The search authorized by the DNA Collection Act greatly advances important governmental interests.Turning to the other side of the scale, the minimal intrusion occasioned by the DNA Collection Act is justified by several important governmental interests.

1. DNA profiles of arrestees serve the same goals of unparalleled accuracy in identification as DNA profiles of convicted offenders.The 2008 extension of the Act to arrestees advances the State’s interest in accurately identifying people in its custody, rung, like many people charged with *22 crimes of violence, remained in state custody pending trial. The State clearly has an interest in knowing the identities of the people in its custody. . . Not only is DNA analysis the best means of identification, it is immutable. An arrestee could give a false name; he could even change his appearance. But what he could not do is change the 26-number sequence derived from his DNA. Jones v. Murray, 962 F.2d 302, 307 (4th Cir. 1992). For this reason, the “governmental justification for this form of identification … relies on no argument different in kind from that traditionally advanced for taking fingerprints and photographs, but with additional force because of the potentially greater precision of DNA sampling and matching methods.” Id.

****23 What is more, the State needs to acquire this information in a way that is most useful to its central missions of solving crimes and administering justice. Because the identifying information recovered from crime scenes is not always in the form of fingerprints, or photographs, or a suspect’s name and date of birth, experience has shown that the State’s interests are best served in gathering identifying information in a variety of formats - including DNA profiles.

2. The State has an interest in solving crimes as expeditiously as possible.Additionally, of course, the State has an interest in solving crimes. Section 2-505 of the Act, enacted before the extension of the law to arrestees, includes “official investigation into a crime” as one of the enumerated purposes of creating the DNA database. By collecting DNA profiles at the time of arrest, law enforcement may narrow its field of suspects and save investigative resources. It can solve crimes faster, it can identify suspects with greater accuracy, and it can reduce the risk of setting a dangerous criminal free due to its failure to identify him as such. *24 To that end, the more profiles in the comparative DNA database, the more useful the database in identifying suspects. The General Assembly’s decision to expand the Act to arrestees was balanced by the limits it imposed upon the State. The law restricts the State to accessing only identifying information and imposes clear limits on the collection, retention, and use of that information. At the same time it allows the State to gather identifying information in a forensically useful format from a group of people who have already, by *25 virtue of arrest, relinquished any right of privacy in their identities.

*26 CONCLUSION

For the foregoing reasons, the decision of the Court of Appeals of North Dakota should be reversed and the constitutionality of the Act affirmed.



Fern v. State, 376 N.D. 550 (2011) 27 A.2d 549



For Educational Use Only Page 1

ARRESTED DEVELOPMENT: REFORMING THE FEDERAL..., 79 Geo. Wash. L....

79 Geo. Wash. L. Rev. 1201

George Washington Law ReviewJune, 2011

Note

ARRESTED DEVELOPMENT: REFORMING THE FEDERAL ALL-ARRESTEE DNA COLLECTION STATUTE TO COMPLY WITH THE FOURTH AMENDMENT

Ashley Eilera1

Copyright (c) 2011 George Washington Law Review; Ashley Eiler

IntroductionOn March 21, 2009, Lily Haskell attended a peace rally at San Francisco’s Civic Center. 1 When Haskell purportedly attempted to free a fellow protestor who had been taken into police custody, she was arrested. 2

According to Haskell, when she arrived at a city jail, two deputies with the San Francisco County Sheriff’s Department informed her that she had to provide them with a DNA sample or she would be charged with an additional misdemeanor offense.3 These deputies allegedly also told Haskell that if she waited to consult with an attorney before providing the DNA sample, she would not only be charged with the misdemeanor offense for not immediately complying *1202 with the required DNA collection, but would also be held in custody until she was formally arraigned.4 No formal charges were ever brought against Haskell based on this arrest.5

The county deputies acted pursuant to a California state statute that requires individuals who are arrested on felony charges to provide a DNA sample for analysis and inclusion in a database.6 Although Haskell’s particular situation was governed by California law, there is an even broader federal regime that permits the warrantless collection of DNA from every arrestee.7 Under this federal “all-arrestee” statute, an arrestee’s DNA sample is eventually analyzed to produce a unique profile to be entered into the federal government’s Combined DNA Index System (“CODIS”).8 In the CODIS database, an arrestee’s DNA profile is subject to repeated and indefinite use by law enforcement officials across the nation, who perform searches to match unidentified biological evidence from crime scenes to an individual in the database in hopes of solving a crime.9

Under this federal statutory scheme, the fact that an arrestee is never formally charged or convicted of a crime has little impact on the analysis or continued use of her DNA profile; the federal government has no obligation to take affirmative steps to expunge a DNA profile from CODIS if an arrestee is not ultimately convicted. 10

Instead, arrestees like Haskell have to apply for expungement--a requirement designed to shift the burden from the government to the arrestee in order to strengthen CODIS’s crime-solving power.11

On its face, DNA collection from arrestees appears problematic in light of an individual’s right to be free from unreasonable searches and seizures under the Fourth Amendment.12 The Supreme Court, however, has yet to consider a challenge to any statutory scheme, state or federal, authorizing DNA collection. Lower federal and state courts have largely upheld less expansive versions of DNA collection *1203 statutes targeting certain classes of convicted offenders by using two different Fourth Amendment doctrines: the “totality of the circumstances” test and the “special needs” exception.13 Courts have split, however, on more recent challenges to all-arrestee statutes.14

Despite the lack of a definitive Supreme Court ruling, current caselaw indicates that the federal all-arrestee DNA-collection regime violates the Fourth Amendment because it fails to pass muster under either of the doctrinal tests used by lower courts. The initial search involved in collecting a DNA sample from an arrestee involves only minimal bodily intrusion and thus can be justified under the Fourth Amendment. By contrast, the analysis of the sample to produce an individualized DNA profile, and the subsequent inclusion of the profile in CODIS for ongoing, recurrent searches by law enforcement officials are unconstitutional because the nature of the information obtained renders the searches unreasonable. For these reasons, Congress should reform the statute to comport with the Fourth Amendment.




Under the legislation proposed in this Note, an arrestee’s DNA sample would not be analyzed immediately upon collection for entry into CODIS. Instead, investigators would place the sample, unanalyzed, into a separate DNA databank where it would be stored until either (1) the arrestee is convicted, or (2) the arrestee consents to have her DNA included in CODIS. This legislative reform is preferable to the Supreme Court simply striking down the current statutory regime because it protects an arrestee’s Fourth Amendment rights while still allowing the federal government to pursue its compelling interest in improving the efficacy of CODIS.

I. Background of DNA Collection Statutes

A. The Evolving Role of DNA and DNA Databases in Law EnforcementOver the past several decades, scientists have made significant discoveries about the structure of the human genome that allow for the use of DNA as a means of individualized identification.17 An individual’s genetic composition is unique because of small, yet significant, variations in the sequence of subunits that make up her DNA molecules.18 Other than identical twins, no two individuals share the same DNA sequence,19 which allows DNA to serve as an individual’s personalized barcode.20

*1205 Recognizing the useful role that DNA can play in solving crimes, 24 policymakers and law enforcement officials saw the utility of creating databases that contain searchable collections of DNA profiles for law enforcement purposes.25 Law enforcement agencies create DNA databases by collecting DNA samples (typically in the form of saliva or blood), analyzing a portion of the sample to yield a genotype that functions as a near-unique identifier, and storing this identifying data in a searchable database that can produce matches based on trace evidence linked to a particular crime or victim.26 Officials store unanalyzed portions of the original DNA sample in databanks where police can access them for more in-depth DNA testing if the circumstances of a particular case warrant it.27

Today, most analyzed DNA samples are ultimately entered into CODIS, a centralized federal database that is widely accessible to law enforcement agencies.28 Originally created in 1990 as a pilot program, CODIS has expanded to include DNA samples submitted from all fifty states as well as federal agencies. 29 For the purposes of inclusion in the CODIS database, the Federal Bureau of Investigation (“FBI”) has limited the analysis of collected DNA samples to thirteen locations, or loci, which results in an “average match probability [of] one in 180 trillion.”30 In addition to CODIS, every state maintains its own *1206 DNA database containing entries that can be compared to DNA profiles garnered from biological evidence.31

B. The Expansion of DNA Collection Statutes and DatabasesAll-arrestee DNA collection statutes are the latest product of the trend to expand DNA databases to improve their crime-solving potential.32 As law enforcement officials recognized that DNA databases could help solve crimes, particularly in cold cases,33 they realized that increasing the number of available DNA profiles would increase the chances of generating a hit that might lead to a conviction.34 As a result, states that originally authorized only limited DNA collection--typically from those individuals convicted of certain statutorily designated violent crimes--widely expanded the applicability of their DNA database statutes. 35 Eligibility for federal funding to reduce the backlog in state and local crime laboratories created an additional incentive for states to broaden the applicability of their DNA database statutes.36 States’ DNA collection statutes now vary widely, with law *1207 enforcement officials in at least twenty-one states collecting DNA samples from some or all arrestees.37

Over time, the federal government similarly responded to the powerful crime-fighting results produced by DNA databases by expanding the classes of individuals targeted for DNA collection, ultimately to include even individuals who have merely been arrested.38 In 2000, Congress passed a statute authorizing federal agencies to collect DNA samples from persons convicted of certain federal, military, and District of Columbia offenses. 39

Congress then expanded the categories of qualifying federal offenses, first by adding three new violent felonies,40 and then by including all felonies--creating a regime in which the federal government could collect DNA samples from all convicted federal felons.41 Most recently, Congress passed the DNA Fingerprint Act of




2005, which authorized the Attorney General to “collect DNA samples from individuals who are arrested or from non-United States persons who are detained under the authority of the United States.”42

Pursuant to this legislation, the DOJ implemented the statutory scheme and began collecting DNA samples from all arrestees and all *1208 noncitizen detainees in January 2009.43 Importantly, the statute provides for a fairly rigorous procedure through which arrestees who are ultimately not convicted of a crime can request expungement of their DNA samples from CODIS.44 This process places the burden for seeking expungement entirely on the individual because Congress intended to relieve the government of the “unwieldy requirement” of having to “track the progress of individual criminal cases.”45

In comparison to its already expansive statutory predecessors, the all-arrestee federal statute ultimately achieves only three, arguably limited, objectives for CODIS: (1) it speeds up the analysis, entry, and searchability of DNA samples from those arrestees who are ultimately convicted of a crime; (2) it permanently adds DNA samples from those arrestees who, for one reason or another, are not ultimately convicted of a crime and who do not pursue expungement; and (3) it temporarily adds analyzed DNA samples from those arrestees not ultimately convicted who do take affirmative steps to remove their DNA samples from the database.46

II. The Federal All-Arrestee DNA Collection Statute and the Fourth Amendment***

*1209 A. DNA Collection Procedures Constitute Multiple Searches Under the Fourth AmendmentThe Fourth Amendment provides protection for individuals against government action that constitutes a search or a seizure.47 The modern two-prong test for determining what constitutes a search turns on reasonableness, requiring that (1) an individual manifest an actual, subjective privacy interest and (2) the individual’s privacy interest is objectively legitimate in the eyes of the public.48

Applying this framework, DNA databasing consists of three distinct phases that constitute searches under the Fourth Amendment because each involves government intrusion into an objectively legitimate privacy interest. First, the initial collection of a DNA sample requires a bodily intrusion that encroaches upon an individual’s unarguably objective privacy interest. Second, the analysis of the sample to yield a DNA profile containing personal information about the individual constitutes an additional search because of the nature of information it produces. Finally, the inclusion of the profile in CODIS ultimately results in multiple, recurrent searches each time a law enforcement official accesses the database to conduct a search of the DNA profiles it contains. Both courts and academics widely agree that compelled collection of DNA constitutes a search because it involves a bodily intrusion and therefore violates an individual’s reasonable expectation of privacy. 49 DNA samples are typically extracted from an individual either by drawing blood or by taking a buccal cheek swab 50--procedures that are closely analogous to other bodily intrusions deemed to be searches by the Supreme Court because they constitute “severe, though brief, *1210 intrusion[s] upon cherished personal security.”51 In 1966, the Supreme Court held that a forcible blood draw from a drunk driving suspect is among those procedures that “plainly constitute searches of persons.”52 Although a forcible blood draw is arguably more intrusive than the buccal swabs commonly used to collect DNA samples,53 the Supreme Court expanded the types of bodily intrusion subject to Fourth Amendment scrutiny in 1989 by holding that mandatory taking of breath samples for drug testing is a search.54 This holding strongly indicates that taking a buccal swab, which could be considered more intrusive than administering a breathalyzer test, would also be deemed a search by the Court. In addition to the widely recognized search upon collection, the subsequent analysis of the DNA sample to produce a profile for inclusion in databases like CODIS also constitutes a search because individuals have an objectively reasonable privacy interest in the nature of information that is obtained.55 DNA samples contain a wealth of information about an individual’s “immutable, lifelong characteristics,” far more than the moment-in-time information captured by the drug and alcohol tests considered by the Supreme Court. 56 An individual’s genome reveals information about diseases and behavioral characteristics that might not otherwise be obvious.57

This considerable intrusion distinguishes DNA sampling from fingerprinting, which the Supreme Court has observed “involves none of the probing into an individual’s private life and thoughts that marks an interrogation




or search.”58 Moreover, the results produced by analyzing a particular DNA sample are not limited in scope to the donor, but can actually reveal private information about the donor’s blood-related family members.59

*1211 Under this reasoning, each time the analyzed DNA profile is subject to a query within CODIS, that query results in a Fourth Amendment search because of the nature of information available to the law enforcement official accessing the database.60 Admittedly, Congress specifically intended to restrict the personal and medical information obtainable through CODIS by limiting the DNA profiles to consist of so-called junk DNA, which it hoped would “uniquely identify an individual, but . . . not provide a basis for determining or inferring anything else about the person.”61 Even using today’s technology, however, junk DNA samples can yield probabilistic evidence of an individual’s race or sex.62 Moreover, as technology inevitably advances, scientists have predicted that even junk DNA will allow access to the wealth of information that an individual’s DNA contains. 63 In particular, junk DNA is increasingly considered to contain predictive medical and behavioral information 64--information that goes far beyond its function as a unique identifier.65 For example, although the *1212 information contained in junk DNA is not currently thought to cause any particular disease, it does correlate with genes that do; accordingly, the junk DNA contained in CODIS profiles can potentially be used to determine whether a particular individual possesses certain disease-causing genes.66

B. Lower Courts’ Approaches to Determining Whether DNA Databasing Laws Are Reasonable Under Current Fourth Amendment JurisprudenceAlthough there is widespread agreement that DNA databasing laws implicate the Fourth Amendment, it does not necessarily follow that they are constitutionally prohibited; the Constitution requires only that the government’s searches be reasonable.67 Notwithstanding some well-established categorical exceptions, a search is presumed to be unreasonable under the Fourth Amendment unless it is conducted pursuant to a warrant based on a showing of probable cause.68

Prior to DNA databasing laws, the standard way to collect an individual’s DNA for crime-solving purposes was by obtaining a warrant based on probable cause.69 Essentially, to sample and analyze an individual’s DNA, law enforcement officers had to demonstrate to a magistrate that criminal activity was afoot by linking a particular individual to a crime scene. The text of the Fourth Amendment ultimately prohibits only unreasonable searches, so the warrantless or even suspicionless collection of DNA samples pursuant to statute is not necessarily unconstitutional under Supreme Court precedent on the legality of government searches.70

Lower courts have diverged in analyzing how DNA collection statutes fit within the Fourth Amendment doctrines established by the Supreme Court. Some courts have analyzed the legality of such statutes under the special needs exception while others have adopted the totality of the circumstances test. *1213 1. Emergence of a Split in Lower Courts’ Consideration of Early DNA Statutes Targeting Parolees and Convicts The federal courts of appeals that considered challenges to earlier iterations of DNA collection statutes split in their use of two different Fourth Amendment theories of reasonableness, but ultimately agreed in their decisions to uphold the statutes.71 These DNA collection statutes allowed law enforcement officials to collect, analyze, and perform unlimited database queries on a qualifying offender’s DNA sample without a warrant or any showing of individualized suspicion that the offender had committed additional crimes.72 Importantly, these decisions were not about statutes that permit suspicionless DNA collection from arrestees, but were limited to individuals who had been convicted of qualifying offenses. a. Decisions Using the Totality of the Circumstances Test A majority of federal circuits adopted the Supreme Court’s totality of the circumstances test 73 that balances the state’s interest in pursuing a search with the individual’s expectation of privacy.74 A minority of circuits opted to use the Supreme Court’s special needs exception to the warrant requirement,75 which allows a search to be *1214 conducted without probable cause when the primary purpose of the search is not related to law enforcement.76




Circuits that employed the majority totality of the circumstances approach balanced the government’s interest in maintaining databases like CODIS against the individual’s privacy interest in her DNA, and ultimately found that DNA collection statutes targeting certain qualifying offenders are reasonable under the Fourth Amendment.77 In considering the privacy rights of the individual, these courts built upon Supreme Court precedent78 to find that individuals subject to state control--either by incarceration or supervised release--have a diminished expectation of privacy; therefore, the courts reasoned that such individuals can be subject to DNA collection even in the absence of individualized suspicion that they have committed additional crimes.79 For example, an en banc panel of the Ninth Circuit upheld mandatory DNA testing of violent felons on supervised release pursuant to federal law80 by focusing on the “well-established principle that parolees and other conditional releasees are not entitled to the full panoply of rights and protections possessed by the general public.”81

On the opposite side of the balancing test, the courts followed Supreme Court precedent82 by considering the government’s interest in including samples from these classes of individuals in DNA databases, and ultimately concluded that this interest justified the statutes *1215 under the totality of the circumstances.83 The First Circuit recognized that the government has “important interests in monitoring and rehabilitating supervised releasees, solving crimes, and exonerating innocent individuals” through the use of CODIS. 84 Similarly, the Ninth Circuit noted that “the interests furthered by the federal DNA Act are undeniably compelling.”85

b. Decisions Using the Special Needs Doctrine The minority approach adopted by federal circuit courts examines whether the DNA collection statute being considered presents a “special need” beyond normal law enforcement needs that renders the “warrant and probable-cause requirement impracticable.”86 Applying the special needs doctrine, the Second Circuit upheld a federal law87 requiring DNA sample collection from any individual convicted of a felony--even nonviolent felons who are sentenced only to probation.88 The Second Circuit rejected the argument that recent Supreme Court decisions mandated consideration of the statute under the totality of the circumstances; 89 instead, it held that some law enforcement purposes--including the government’s interest in creating a federal DNA database--still qualify as a “special need” and fall under the associated exception to the Fourth Amendment’s warrant requirement.90 In a previous case, the Second Circuit similarly upheld New York’s DNA indexing statute targeting convicted felons91 under the special needs test, reasoning that the privacy intrusion of DNA collection is comparable to the intrusion involved in fingerprinting.92 To justify this finding, the Second Circuit downplayed both the nature of information contained in DNA samples and the inherent crime-solving purpose of the statute, finding that the primary purpose of the statute goes beyond normal law enforcement needs:

Although the DNA samples may eventually help law enforcement identify the perpetrator of a crime, at the time of collection, the samples in fact provide no evidence in and of *1216 themselves of criminal wrongdoing, and are not sought for the investigation of a specific crime. Because the state’s purpose in conducting DNA indexing is distinct from the ordinary crime detection activities associated with normal law-enforcement concerns, it meets the special-needs threshold.93

2. Early Considerations of All-Arrestee DNA Statutes Based on a handful of decisions on the constitutionality of all-arrestee DNA statutes that have been issued to date, it is clear that the rationales used by lower courts to uphold earlier, less expansive iterations of DNA databasing statutes do not lend themselves as easily to all-arrestee statutes. As noted previously, the Supreme Court has not yet granted certiorari to a challenge of any state or federal DNA collection statute, including the latest federal all-arrestee law. To date, only a handful of state courts have considered the state and federal constitutionality of all-arrestee DNA statutes, splitting both on the doctrinal approach used and the end result reached.94

***




ConclusionAs currently structured, the federal DNA database law that permits DNA sampling from all arrestees for subsequent analysis and inclusion *1236 in CODIS violates the Fourth Amendment’s prohibition against unreasonable searches and seizures. The statute cannot be justified under Supreme Court precedent delineating the special needs exception because it has a primary law enforcement purpose of crime-solving. It also fails under the totality of the circumstances approach because the government’s interest in crime solving simply does not outweigh an arrestee’s privacy interest. However, completely eliminating laws that authorize DNA sampling upon arrest ignores the policy rationale that DNA databases will function more effectively by expanding the number of samples they include, which will ultimately increase the number of past and future crimes that law enforcement officials solve. Although the Supreme Court could create a new exception to the warrant requirement to uphold the law or could simply strike it down in its entirety, Congress should instead reform the statute.

Footnotesa1 J.D., May 2011, The George Washington University Law School; B.A., 2007, Purdue University. I thank Brian

Smith and Lisa Swartzfager for their invaluable feedback on early drafts of this Note, and the editors of The George Washington Law Review for exceptional editorial work. A special thank you to my family and to James for their love, encouragement, and patience.

1 Complaint at 5, Haskell v. Brown, 677 F. Supp. 2d 1187 (N.D. Cal. 2009) (No. C09-04779 CRB).

2 Id.

3 Id. at 5-6.

4 Id.

5 Id. at 6.

6 Cal. Penal Code § 296(a)(2)(C) (West 2008).

7 42 U.S.C. § 14135a(a)(1)(A) (2006).

8 Id. § 14135a(b).

9 CODIS and NDIS Fact Sheet, FBI, http://www.fbi.gov/about-us/lab/codis/codis-and-ndis-fact-sheet (last visited Mar. 10, 2011).

10 See 42 U.S.C. § 14132(d) (explaining the affirmative steps that an individual arrestee who is not ultimately convicted must take to apply for expungement of her DNA sample).

11 See 151 Cong. Rec. 28,857 (2005) (statement of Sen. Kyl) (arguing that expungement procedures that place a burden on the government are “an unwieldy requirement” and “effectively preclude[ ] the creation of a genuine national all-arrestee database”).




12 See infra Part II.A.

13 See infra Part II.B.1.

14 See infra Part II.B.2.

17 See, e.g., Lawrence Kobilinsky et al., DNA: Forensic and Legal Applications 51 (2005) (describing the effect of the discovery of “restriction fragment length polymorphism analysis,” also known as “DNA Fingerprinting,” on the criminal justice system).

18 Id. at 5-6.

19 Henry C. Lee & Frank Tirnady, Blood Evidence: How DNA Is Revolutionizing the Way We Solve Crimes 4 (2003).

20 Koblinsky et al., supra note 17, at 5-6.

24 In addition to its crime-solving utility, DNA has also been successfully used to exonerate the wrongly convicted. See Facts on Post-Conviction DNA Exonerations, Innocence Project, http:// www.innocenceproject.org/Content/351.php (last visited Mar. 27, 2011) (noting that DNA has been used to secure 267 postconviction exonerations, including 17 exonerations involving individuals serving time on death row).

25 See, e.g., Robert Berlet, A Step Too Far: Due Process and DNA Collection in California After Proposition 69, 40 U.C. Davis L. Rev. 1481, 1486-87 (2007) (“Every state has developed a criminal DNA database.”); D.H. Kaye, The Constitutionality of DNA Sampling on Arrest, 10 Cornell J.L. & Pub. Pol’y 455, 456 (2001) (“Law enforcement authorities promote offender DNA databanking on the theory that it will clear previously unsolved crimes and identify offenders who commit additional crimes while on probation or parole, or after they have finished serving their sentences.”).

26 Kaye, supra note 25, at 461-62.

27 Id. at 462.

28 CODIS Brochure, FBI, http://www.fbi.gov/about-us/lab/codis/codis_ brochure (last visited Mar. 10, 2011).

29 Id. After CODIS’s initial creation, the DNA Identification Act of 1994 formalized the FBI’s authority to establish a National DNA Index System (“NDIS”) for law enforcement purposes. See DNA Identification Act of 1994, Pub. L. No. 103-322, §§ 210301-210306, 108 Stat. 1796, 2065-71.

30 James Crow, Comm’r, Nat’l Comm’n on the Future of DNA Evidence, Proceedings (Meeting V) in Santa Fe, New Mexico: Research and Development Working Group Report and Discussion (May 7, 1999), http:// www.ojp.usdoj.gov/nij/topics/forensics/events/dnamtgtrans5/trans-h.html.

31 See Seth Axelrad, Am. Soc’y of Law, Med. & Ethics, Survey of State DNA Database Statutes 1-2 (2005), available at http://www.aslme.org/dna_ 04/grid/guide.pdf.

32 This trend has not been without its critics. In addition to the constitutional concerns discussed infra, some commentators have argued that the continued expansion of DNA databases is flawed as a matter of public policy.




See, e.g., Paul E. Tracy & Vincent Morgan, Big Brother and His Science Kit: DNA Databases for 21st Century Crime Control?, 90 J. Crim. L. & Criminology 635, 663-64 (2000) (questioning whether allocating the necessary funds to expand DNA databases is economically sound); Michael T. Risher, Racial Disparities in Databanking of DNA Profiles, 22 GeneWatch, July-Aug. 2009, at 22, 22, available at http://issuu.com/genewatchmagazine/docs/genewatch22_3-4_ final?mode=embed&layout=http%3A%C2F%C2Fskin.issuu.com%C2Fv%C2Flight% 2Flayout.xml&showFlipBtn=true (finding that the expansion of DNA databasing laws will magnify “the current racial disparities in our criminal justice system as more and more people of color’s DNA profiles are included in databases that make them potential suspects whenever DNA is recovered from a crime scene”).

33 See, e.g., Carey Goldberg, DNA Databanks Giving Police a Powerful Weapon, and Critics, N.Y. Times, Feb. 19, 1998, at A1 (describing how quickly the newly enhanced CODIS database was able to link a convicted sex offender in Illinois to a 1989 rape and attempted murder in Wisconsin); Colin Moynihan, DNA Evidence Leads to Arrest in a 1993 Rape, N.Y. Times, Sept. 21, 2010, at A28 (detailing the use of CODIS to link a man convicted on drug charges in 2010 to a rape committed in 1993).

34 Tracey Maclin, Is Obtaining an Arrestee’s DNA a Valid Special Needs Search Under the Fourth Amendment? What Should (and Will) the Supreme Court Do?, 34 J.L. Med. & Ethics 165, 166 (2006).

35 See, e.g., Berlet, supra note 25, at 1494-95 (describing the expansion of California’s DNA database statute, which originally authorized sampling only from individuals convicted of nine specified felonies, then expanded to include individuals convicted of a larger subset of crimes, and later, with the passage of Proposition 69, expanded to provide for sampling of any individual arrested for a felony by 2009).

36 See 42 U.S.C. § 14135 (2006) (establishing federal grants to fund state and local DNA analysis programs).

37 See State DNA Database Laws: Qualifying Offenses, DNAResource.com, http://www.dnaresource.com/documents/statequalifyingoffenses2009.pdf (June 2009) (indicating that twenty-one states now have DNA collection statutes that include some or all arrestees: Alabama, Alaska, Arizona, Arkansas, California, Colorado, Florida, Kansas, Louisiana, Maryland, Michigan, Minnesota, Missouri, New Mexico, North Dakota, South Carolina, South Dakota, Tennessee, Texas, Vermont, and Virginia).

38 See 42 U.S.C. § 14135a(a)(1)(A) (“The Attorney General may, as prescribed by the Attorney General in regulation, collect DNA samples from individuals who are arrested....”). In one public appearance announcing an expansion of CODIS, former Attorney General John Ashcroft remarked that “DNA technology has proven itself to be the truth machine of law enforcement, ensuring justice by identifying the guilty and exonerating the innocent.” News Conference, John Ashcroft, U.S. Att’y Gen., DNA Initiative (Mar. 4, 2002), available at http:// www.justice.gov/archive/ag/speeches/2002/030402newsconferncednainitiative.htm.

39 DNA Analysis Backlog Elimination Act of 2000, Pub. L. No. 106-546, § 3, 114 Stat. 2726, 2728-30 (codified as amended at 42 U.S.C. § 14135a).

40 USA PATRIOT Act of 2001, Pub. L. No. 107-56, § 503, 115 Stat. 272, 364 (codified as amended at 42 U.S.C. § 13135a).

41 Debbie Smith Act of 2004, Pub. L. No. 108-405, § 203(b), 118 Stat. 2260, 2270 (codified as amended at 42 U.S.C. § 14135a).

42 DNA Fingerprint Act of 2005, Pub. L. No. 109-162, § 1004(a)(1)(A), 119 Stat. 2960, 3085 (2006) (codified as amended at 42 U.S.C. § 14135(a)). 42 U.S.C was further amended by section 155 of the Adam Walsh Child Protection and Safety Act of 2006, Pub. L. No. 109-248, 120 Stat. 587, 611 (codified at 42 U.S.C. § 14135a). This




most recent amendment altered the language to clarify that it applies to individuals who are “arrested, facing charges, or convicted,” and not only to those who are arrested. Id.

43 DNA-Sampling Collection and Biological Evidence Preservation in the Federal Jurisdiction, 73 Fed. Reg. 74,932 (Dec. 10, 2008) (codified at 28 C.F.R. Pt 28).

44 42 U.S.C. § 14132(d).

45 151 Cong. Rec. 28,857 (2005) (statement of Sen. Kyl).

46 Cf. John D. Biancamano, Note, Arresting DNA: The Evolving Nature of DNA Collection Statutes and Their Fourth Amendment Justifications, 70 Ohio St. L.J. 619, 654 (2009) (“[A]rrestee statutes really only target individuals who are not ultimately found guilty of the crime for which they’ve been arrested....”).

47 U.S. Const. amend. IV (“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.”).

48 Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).

49 See, e.g., United States v. Kincade, 379 F.3d 813, 821 n.15 (9th Cir. 2004) (en banc) (“The compulsory extraction of blood for DNA profiling unquestionably implicates the right to personal security embodied in the Fourth Amendment, and thus constitutes a ‘search’ within the meaning of the Constitution.”); Kaye, supra note 25, at 476 (“An inspection or extraction that penetrates the body or enters its cavities usually is regarded as infringing a reasonable expectation of privacy and hence falling within the zone of the Fourth Amendment.”).

50 Kaye, supra note 25, at 467. A buccal cheek swab is a common method of collecting DNA that involves “rubbing a foam-tipped swab... against the inside of the cheek for approximately 30 seconds” to obtain a sample of buccal epithelial cells. Christina L. Aquilante, Methodologies in Pharmacogenomics, in Concepts in Pharmacogenomics 55, 58 (Martin M. Zdanowicz ed., 2010).

51 Cupp v. Murphy, 412 U.S. 291, 295 (1973) (citing Terry v. Ohio, 392 U.S. 1, 24-25 (1968)) (holding that the taking of blood is subject to constitutional scrutiny).

52 Schmerber v. California, 384 U.S. 757, 767 (1966).

53 Kaye, supra note 25, at 467.

54 Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 606 (1989).

55 Kaye, supra note 25, at 481-82; Maclin, supra note 34, at 169-70; see also United States v. Kincade, 379 F.3d 813, 859, 865-66 (9th Cir. 2004) (en banc) (Reinhardt, J., dissenting) (criticizing the majority opinion for focusing its analysis on the initial extraction of DNA via a blood sample and disregarding “what is done with that information once it is taken,” which, the dissent argues, is highly relevant for Fourth Amendment purposes because of “the obvious privacy intrusions suffered by those whose data are included in a permanent governmental database”).

56 Robert Craig Scherer, Mandatory Genetic Dogtags and the Fourth Amendment: The Need for a New Post-Skinner




Test, 85 Geo. L.J. 2007, 2021 (1997).

57 Kaye, supra note 25, at 482.

58 Davis v. Mississippi, 394 U.S. 721, 727 (1969).

59 Scherer, supra note 56, at 2021; see also Henry T. Greely et al., Family Ties: The Use of DNA Offender Databases to Catch Offenders’ Kin, 34 J.L. Med. & Ethics 248, 251 (2006) (explaining that DNA “runs in families” such that two persons who are closely related have a higher probability of having similar DNA than two people who are not related).

60 The First Circuit recently rejected this view in a case brought by a probationer who had completed the term of his probation and challenged the government’s continued retention and use of his DNA profile and sample. See Boroian v. Mueller, 616 F.3d 60, 64 (1st Cir. 2010). Specifically, the court reasoned that because “the government’s retention and matching of [the probationer’s] profile against other profiles in CODIS for the purpose of identification does not invade an expectation of privacy that society is prepared to recognize as reasonable,” the practice does not constitute a separate search under the Fourth Amendment. Id. at 71.

61 H.R. Rep. No. 106-900, pt. 1, at 27 (2000).

62 See Nat’l Comm’n on the Future of DNA Evidence, Nat’l Inst. of Justice, The Future of Forensic DNA Testing: Predictions of the Research and Development Working Group 35 (2000), available at http:// www.ncjrs.gov/pdffiles1/nij/183697.pdf (noting that because the frequencies of the markers are different for different population groups, “a particular profile... may be more probable in one group than in another,” and explaining that “[t]his can be used as a likelihood ratio... to provide evidence for the group origin of the DNA sample”).

63 See W. Wayt Gibbs, The Unseen Genome: Gems Among the Junk, 289 Sci. Am. 46, 49 (2003) (questioning the notion that junk DNA does not contain any useful genetic programming information).

64 See Simon A. Cole, Is the “Junk” DNA Designation Bunk?, 102 Nw. U. L. Rev. Colloquy 54, 56-59 (2007), available at http:// www.law.northwestern.edu/lawreview/colloquy/2007/29/lrcoll2007n29cole.pdf (arguing that certain portions of junk DNA could serve as a screening test for some diseases or medical conditions); see also Tania Simoncelli & Sheldon Krimsky, Am. Constitution Soc’y, A New Era of DNA Collections: At What Cost to Civil Liberties? 12-13 (2007), available at http://www.acslaw.org/node/5338 (discussing the potential for abuse of DNA databases to profile suspects on the basis of characteristics such as “intelligence, addictive behavior and aggression”).

65 Other scholars, although conceding that DNA could be used to predict medical conditions and behavioral tendencies, insist that it is “highly unlikely” that such practices will actually occur and that arguments to the contrary constitute a “red herring.” Derek Regensburger, DNA Databases and the Fourth Amendment: The Time Has Come to Reexamine the Special Needs Exception to the Warrant Requirement and the Primary Purpose Test, 19 Alb. L.J. Sci. & Tech. 319, 330-31 (2009).

66 Cole, supra note 64, at 58-59 (2007).

67 Skinner v. Ry. Labor Execs.’ Ass’n, 489 U.S. 602, 619 (1989).

68 Id.




69 Biancamano, supra note 46, at 620.

70 See Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 652-53 (1995) (“[A] warrant is not required to establish the reasonableness of all government searches; and when a warrant is not required (and the Warrant Clause therefore not applicable), probable cause is not invariably required either.”).

71 Although Part II.A, supra, identifies three distinct types of searches involved in DNA databasing that implicate the Fourth Amendment, courts that considered earlier iterations of laws that targeted only qualifying offenders analyzed the constitutionality of the regime as a whole, rather than each distinct search separately.

72 See, e.g., DNA Analysis Backlog Elimination Act of 2000, Pub. L. No. 106-546, § 3, 114 Stat. 2726, 2728-30 (codified as amended at 42 U.S.C. § 14135a) (allowing DNA collection from federal convicts and providing for the entry of that information into CODIS).

73 See Samson v. California, 547 U.S. 843, 848 (2006) (finding that a stop and subsequent search of a parolee by a police officer who was aware of the parolee’s prior history--but who did not have any individualized suspicion of a new crime--was reasonable under the totality of the circumstances approach based on the balancing of the “degree to which [a search] intrudes upon an individual’s privacy and... the degree to which [the search] is needed for the promotion of legitimate governmental interests”); United States v. Knights, 534 U.S. 112, 118-22 (2001) (upholding a warrantless search of the home of a probationer convicted of drug offenses conducted by a law enforcement official who suspected probationer’s involvement with non-drug related crimes, such as arson, because under the totality of the circumstances test, the state’s interest in searching the probationer’s home without a warrant outweighed his diminished privacy interest).

74 See, e.g., United States v. Weikert, 504 F.3d 1, 9-11 (1st Cir. 2007); Banks v. United States, 490 F. 3d 1178, 1184 (10th Cir. 2007); United States v. Kraklio, 451 F.3d 922, 924-25 (8th Cir. 2006); United States v. Kincade, 379 F.3d 813, 832 (9th Cir. 2004) (en banc).

75 See New Jersey v. T.L.O., 469 U.S. 325, 341-42 (1985) (upholding a high school assistant principal’s search of a student’s purse based on a mere suspicion that the student had been smoking in violation of school rules because the school’s interest in maintaining discipline and safety constituted a special need); see also id. at 351-52 (Blackmun, J., concurring) (agreeing that maintaining school discipline and safety is a “special need” beyond the normal needs of law enforcement that rendered the “warrant and probable cause requirement impracticable”). In certain types of cases, primarily those involving border searches, the Court has invoked the special needs doctrine to uphold a search where the government has not even established a reasonable suspicion of wrongdoing. See, e.g., United States v. Ramsey, 431 U.S. 606, 616 (1977) (“[S]earches made at the border, pursuant to the longstanding right of the sovereign to protect itself by stopping and examining persons and property crossing into this country, are reasonable simply by virtue of the fact that they occur at the border....”).

76 See, e.g., United States v. Amerson, 483 F.3d 73, 78 (2d Cir. 2007); United States v. Hook, 471 F.3d 766, 771-72 (7th Cir. 2006); United States v. Conley, 453 F.3d 674, 679 (6th Cir. 2006); Nicholas v. Goord, 430 F.3d 652, 667 (2d Cir. 2005).

77 See, e.g., Kincade, 379 F.3d at 839 (holding that compulsory DNA profiling of qualified federal offenders is reasonable under the totality of the circumstances test).

78 Samson, 547 U.S. at 848-49 (discussing the “continuum” of liberty interests associated with various punishments that affords probationers more freedom than parolees).

79 See Weikert, 504 F.3d at 10-11, 14; Banks, 490 F.3d at 1185-86, 1193; Kraklio, 451 F.3d at 924-25; Kincade, 379 F.3d at 833-34, 839.




80 42 U.S.C. § 14135a(a)(2) (2006).

81 Kincade, 379 F.3d at 833.

82 See Samson, 547 U.S. at 853 (finding that the state’s combined interest in the supervision of its parolees, the reduction of recidivism, and the effective reintegration of parolees into society justified the suspicionless search at issue); United States v. Knights, 534 U.S. 112, 120-21 (2001) (holding that the state had dual interests in reintegrating the probationer into the community and in preventing recidivism).

83 Weikert, 504 F.3d at 1.

84 Id. at 14.

85 Kincade, 379 F.3d at 838.

86 New Jersey v. T.L.O., 469 U.S. 325, 351 (1985) (Blackmun, J., concurring).

87 42 U.S.C. § 14135a(d)(1) (2006).

88 United States v. Amerson, 483 F.3d 73, 89 (2d Cir. 2007).

89 See id. at 78-80 (distinguishing United States v. Knights, 534 U.S. 112, 122 (2001) and Samson v. California, 547 U.S. 843, 854-55 (2006)).

90 Id.

91 N.Y. Exec. Law §§ 995 to 995-f (McKinney Supp. 2011).

92 Nicholas v. Goord, 430 F.3d 652, 671 (2d Cir. 2005).

93 Id. at 669 (internal quotation marks and citation omitted).

94 In addition to the Virginia and Minnesota decisions discussed infra, Lily Haskell, whose story is recounted in the Introduction, filed a suit challenging the constitutionality of California’s all-arrestee DNA collection statute. See Complaint, supra note 1, at 1. The federal district court hearing the case has dismissed the plaintiffs’ motion for a preliminary injunction, see Haskell v. Brown, 677 F. Supp. 2d 1187, 1201-03 (N.D. Cal. 2009), and the parties now await the Ninth Circuit’s ruling on the matter, Haskell v. Brown, No. 10-1512 (9th Cir. argued July 13, 2010).




FAULTY FOUNDATIONS: HOW THE FALSE ANALOGY..., 17 Wm. & Mary Bill...

17 Wm. & Mary Bill Rts. J. 475

William & Mary Bill of Rights JournalDecember, 2010

Notes

FAULTY FOUNDATIONS: HOW THE FALSE ANALOGY TO ROUTINE FINGERPRINTING UNDERMINES THE ARGUMENT FOR ARRESTEE DNA

SAMPLINGCorey Aimesa1

The scene has become indelible in our cultural consciousness: a suspected criminal is pulled away from the mean streets, dragged by his collar “downtown” and tossed into a neon-lit room. He hands over his belongings with a menacing smirk and sneers while the camera captures a mug shot that would make his mother shudder. But then the pad of ink comes out, and a flicker of uncertainty crosses his face. As each print is taken, we see him replaying the night before, straining to remember just what he had touched and with which hand, cursing himself for neglecting to wear gloves.1

In just the past year, federal courts have begun to grapple with whether we should add a new step to this iconic scene: whether DNA sampling, like fingerprinting, should become a routine part of booking procedures upon arrest. The first courts to rule on the constitutionality of arrestee DNA statutes have split on the issue. A United States District Court in Pennsylvania2 and the Court of Appeals of Minnesota3 have ruled that arrestee DNA sampling statutes are an unconstitutional encroachment on Fourth Amendment privacy rights. Conversely, a District Court in California,4 in a decision recently affirmed by the Ninth Circuit,5 and the Virginia Supreme Court6 have ruled *476 that DNA sampling represents the natural next step, from routine fingerprinting, in identification technology, and is, thus, constitutional. While these rulings are merely opening salvos in what seems likely to become a broad judicial discussion of arrestee DNA sampling,7 they effectively outline the probable parameters of the constitutional argument. The courts upholding arrestee DNA sampling statutes have relied heavily on the argument that DNA sampling is merely a harmless “technological progression” from fingerprinting8-no more intrusive and no more objectionable-in order to circumvent Fourth Amendment concerns.9 This analogy certainly makes intuitive sense, but with a close analysis of the differences between DNA and fingerprint testing, both procedurally and substantively, the analogy falls apart. Our intuitive acceptance of fingerprinting as a routine part of criminal booking stems from the simplicity the process promises. The guilt, and resultant fear of detection, we project on the arrested rogue described above stems from a basic linear logical progression: if the man is guilty, fingerprint evidence offers a tangible-some would say indisputable10-link between an individual’s body and the physical evidence left at a crime scene. 11 The opposite, then, also becomes intuitive: if he has nothing to hide, he has nothing to fear. 12 These same intuitions undoubtedly inform our cultural *477 feelings about the new “great science of identification,”13 DNA evidence, which has quickly developed an even stronger air of infallibility than fingerprinting in the public consciousness.14

But the establishment, almost a century ago,15 of fingerprinting as a part of routine booking procedures had little to do with these cultural intuitions.16 Rather, routine fingerprinting arose out of a legitimate law enforcement need to definitively identify criminal suspects during an era when identity could easily be disguised. 17 The analogy between DNA sampling and fingerprinting ignores this history, and the fact that no similar need for DNA sampling exists today. Furthermore, the “technological progression” argument ignores the obvious




conclusion that with “progression” comes legitimate substantive differences between the two types of evidence, and the intrusions on privacy those differences represent.18

A fair and full analysis of these two key differences between DNA sampling and fingerprinting undermines both frameworks by which courts can find a suspicionless search “reasonable” under the Fourth Amendment. 19

Moreover, in ignoring these *478 important differences, the technical progression argument becomes wholly reliant on cultural intuitions. The line between the merely accused and the legally guilty is continually blurred by cultural perceptions, and our courts have historically gone to great lengths to, at least in the courtroom, counteract this blurring.20 Yet the courts that have upheld arrestee DNA sampling statutes have enthusiastically embraced just such a blurring.21

***I. The Basic Fourth Amendment Framework

The Fourth Amendment promises protection of individuals from “unreasonable searches and seizure,” unless probable cause has been established, and the particularities of the person and/or place to be searched are clearly delineated.23 Courts have consistently found both methods for collecting DNA samples, drawing blood24 and swabbing cells from an individual’s mouth,25 to be a “search” under the Fourth Amendment. The question for the courts then becomes whether that search is “reasonable?” For broad law enforcement searches, absent any individualized suspicion, courts have carved out two potential exceptions by which DNA sampling could be deemed a “reasonable search” under the Fourth Amendment. The “totality of circumstances” test requires balancing the degree of intrusion on an individual’s privacy and the legitimate government interest that intrusion serves.26 The slightly more arduous “special needs” test, on the other hand, requires a showing that the intrusion serves a special need beyond typical law enforcement needs, which make the probable cause requirement impractical.27

In uniformly upholding various statutes mandating collection from convicted individuals against Fourth Amendment challenges, a majority of circuits have used *480 the totality of circumstances framework.28 In analyzing the degree of intrusion on the individual, many of these courts leaned heavily on the precedent of routine fingerprinting as a similarly minor intrusion,29 with the caveat that, as convicted criminals, the individuals being subjected to DNA sampling have a “diminished expectation of privacy.” 30 While at least one early DNA court hinted at a diminished expectation of privacy when a person is not yet convicted, but merely arrested,31 the convicted status of the subjects of DNA testing in each case was definitive.32

The three circuits that have rejected Fourth Amendment challenges based on the special needs test have similarly found fingerprinting to be a helpful analogy.33 For instance, in evaluating the state need for DNA sampling, the Second Circuit in Nicholas v. Goord noted that, despite the slightly more intrusive nature of drawing blood or swabbing saliva, DNA collection plays “the same role as fingerprinting.” 34 The Goord court also dutifully noted that the plaintiffs’ status as convicted individuals *481 further minimized the intrusion.35

The Seventh Circuit, in Green v. Berge, inflated the law enforcement need by finding DNA samples to be merely a “stronger” form of identity verification than fingerprinting.36

The courts that have, to date, upheld arrestee DNA sampling statutes against Fourth Amendment challenges have leaned heavily on the fingerprint analogies from convicted DNA sampling cases. To make this case, these courts have necessarily minimized the focus in those earlier cases on the plaintiffs’ status as convicts. For instance, a district court in California in United States v. Pool37 recently became the first court to uphold two federal provisions that require DNA sampling upon arrest.38 The court in Pool pointed to DNA testing as a “technological progression” from fingerprinting39 which serves the same valid state goals of determining definitive identification of criminal suspects and poses, if anything, a lesser physical invasion than its forebearer.40 To make the leap from testing convicted felons to testing arrested individuals, the Pool court relied




on the Virginia Supreme Court’s ruling in Anderson v. Commonwealth.41 Anderson suggested that arrestee DNA testing was permissible based on arrested individuals’ lessened right to privacy.42

Putting this argument aside for now, the framework for both a totality of circumstances analysis, and a special needs analysis, of the constitutionality of pre-conviction DNA sampling seems to invite two basic questions: first, to what degree is the sampling intrusive on the individual; second, what is the government’s need for these intrusions? Courts using both tests have relied on the fingerprinting analogy to answer these questions, and Part II of this Note will examine the holes in that analogy through the lens of these two questions.

II. Government Need Versus Degree of Intrusion

***

3. Casting a Wider Net As the viability of DNA evidence has grown in the past twenty years, states have sought, and courts have supported, the expansion of DNA databases to include samples from more and more classes of individuals. 80

Courts first upheld collection from convicted, incarcerated felons,81 followed by collection from felons convicted of violent crimes on parole or supervised release,82 and ultimately collection from paroled individuals convicted of any federal felony.83 State courts have mirrored federal courts in this regard, and have further expanded collection by upholding collection from individuals convicted of some misdemeanors, 84 and individuals convicted of certain sex offenses even after they have been released and have fulfilled state supervision requirements.85

This steady expansion of DNA databases should be unsurprising, considering the potential value to law enforcement and similar attempts to capitalize on the potential of fingerprinting and expand fingerprint databases in the past.86 Still, the courts upholding *488 these expansions have been careful to limit their scope. Many courts have explained the basic law enforcement “need” as an interest in dissuading and preventing recidivism,87 a rationale that has been parroted by the Department of Justice,88 and that clearly can only apply to convicted individuals.89 All courts upholding DNA sampling of convicted individuals have stressed that their rulings apply only to convicted individuals, and reflect an interest in keeping track of those individuals, be it upon their release, their escape, or merely throughout their incarceration.90

***

1. The Classic Civil Liberties ArgumentThe genius of fingerprinting for identification purposes, according to forensic expert Simon Cole, is that fingerprints have proven over time to offer no valuable or *491 personal information beyond the mere identity of the individual they belong to.107 Despite substantial research seeking to prove a hereditary or racial link to fingerprints, no such link has been found.108 This lack of depth in fingerprint evidence, Cole argues, has been essential to its staying power as strong evidence of identification, in that fingerprint experts asked to testify at criminal trial are not influenced by traits that may indicate a particular type of suspect.109

DNA samples, alternatively, carry significant potential for revealing information beyond mere identity, 110 and the process of DNA databasing has led to significant questions from civil liberties advocates regarding how databases would be protected and the extent to which collection would be expanded.111 “[M]ight access to these databases change in the future?” asks social psychologist and legal scholar Julie Singer.112 “Could the information contained in these databases be exploited or used in illegal or unethical ways? Finally, might the government not stop at requiring DNA tests of those arrested? Might they someday require this submission of all its citizens?”113 These concerns regarding access, exploitation and overreach have already been argued in recent years,114 although proponents of expanded DNA databases point to crime-solving successes to justify any expansion.115




Much of the recent argument has involved the potential “predictive value” of DNA, and the debated contention that DNA collected for criminal identification purposes is merely “junk DNA,” or DNA that does not contain key personal information regarding *492 genetic history.116 Cole argues that the potential “predictive value” of DNA has been both overstated by civil libertarians seeking to limit DNA collection and understated by proponents of increased collection.117 He concludes that the concern with DNA databasing is that society will begin assigning “predictive value” to all DNA, leading to subconscious, and erroneous, correlations between basic DNA types and perceived criminal propensities.118

***

ConclusionThe analogy between fingerprinting and DNA sampling is obvious and intuitive, and has been used as a critical basis of support for arguments favoring expansion of DNA sampling to include sampling from arrestees. This Note has argued that this analogy, in a precedential context, is false based on serious differences between the underlying intents of routine fingerprinting and DNA sampling, and significant substantive differences between the two types of evidence. When the analogy between fingerprinting and DNA sampling is considered accurately, the case for the constitutionality of arrestee DNA sampling under the Fourth Amendment falls apart. The significant intrusion on privacy rights inherent in DNA sampling greatly outweighs the expressed government need, rendering arrestee sampling unconstitutional under the totality of circumstances test. Meanwhile, the expressed need for DNA sampling is too obviously tied up in typical law enforcement actions to qualify for consideration under the special needs test. Admittedly, the development of routine fingerprinting from an administrative need to a law enforcement tool has been historically under-examined by courts. There *510 is no definitive case applying the totality of circumstances test because by the time that test was announced, fingerprinting had long been informally deemed “routine.” While the strongest argument for arrestee DNA sampling would likely take advantage of this vague judicial history, courts should acknowledge that creating precedent from a lack of precedent is, for lack of a better term, bad precedent. Ultimately, while the appeal of broad DNA databases and powerful law enforcement capabilities is undeniable, the Fourth Amendment does not permit the encroachment on individual privacy inherent in arrestee DNA sampling. And although the cultural intuitions supporting the law enforcement purposes are strong-not to mention a natural progression from similar intuitions that led to a broad cultural acceptance of routine fingerprinting-they remain, merely, intuitions. Little in the history of routine fingerprinting suggests legitimate government authority to collect DNA samples upon arrest. On the contrary, this history begs for more discretion from modern judges, and a substantial reigning-in of government overreach that seriously threatens fundamental privacy rights. Thus, in accordance with, rather than in spite of, the history of routine fingerprinting, arrestee DNA sampling statutes should be ruled unconstitutional under the Fourth Amendment.

Footnotesa1 J.D., William & Mary School of Law, 2011; B.A., University of Buffalo, 2005. Thanks to my parents, Dave and

Debbie, who made me who I am, and to my lovely wife Alison, who every day improves on their model.

1 See The Wrong Man (Warner Bros. Pictures 1956). The booking and fingerprinting scene in Alfred Hitchcock’s dark thriller is notably grim, an ironic inversion of the classic scene outlined above. Peter Fonda’s character is an innocent man, and his reactions while being fingerprinted vacillate between confusion and horror, yet the police see only the




hardened, smug criminal described above. This theme of Hitchcock’s film, the idea that even an innocent man with nothing to hide has something to fear, will be a discussion point throughout this Note.

2 United States v. Mitchell, 681 F. Supp. 2d 597 (W.D. Pa. 2009).

3 In re Welfare of C.T.L., 722 N.W.2d 484 (Minn. Ct. App. 2006).

4 United States v. Pool, 645 F. Supp. 2d 903 (E.D. Cal. 2009), aff’d, 2010 WL 3554049 (9th Cir. Sept. 14, 2010).

5 Shortly before the publication of this Note, the Ninth Circuit Court of Appeals affirmed the District Court’s decision in Pool. United States v. Pool, 2010 WL 3554049 (9th Cir. Sept. 14, 2010). The Court of Appeals decision did not deviate significantly from the District Court’s decision, id., and this Note will focus primarily on the language and analysis of the District Court.

6 Anderson v. Commonwealth, 650 S.E.2d 702 (Va. 2007), cert. denied, 553 U.S. 1054 (2008).

7 To date, twenty-one states have enacted some form of DNA arrestee statute, making the issue ripe for judicial consideration. State Laws on DNA Data Banks: Qualifying Offenses, Others Who Must Provide Sample, Nat’l Conference of State Legislatures, http:// www.ncsl.org/issuesresearch/civilandcriminaljustice/statelawsondnadatabanks/tabid/ 12737/default.aspx (last visited Nov. 17, 2010).

8 Pool, 645 F. Supp. 2d at 910.

9 Id. at 910-14. The many Fourth Amendment privacy concerns surrounding arrestee DNA sampling will be discussed, at length, throughout this Note, but particularly in Part II.B. Pool also addresses, and rebuts, a Fifth Amendment Due Process argument suggesting that an independent judicial inquiry into whether cause exists to take a DNA sample, id. at 914, and an Eighth Amendment claim arguing that DNA sampling is an impermissible condition of bail, id. at 915. The Pool court responds to both challenges by reiterating its analysis of the Fourth Amendment challenge, id. at 914-15, but it is worth noting that other constitutional challenges to arrestee DNA sampling have been posited.

10 See Simon A. Cole, Suspect Identities: A History of Fingerprinting and Criminal Identification 4 (2001) [hereinafter Cole, Suspect Identities] (noting that the “fundamental reliability” of fingerprint evidence has never been successfully challenged).

11 See id.

12 Even when the fingerprints of the accused are wholly irrelevant to his case, for example a suspect arrested for tax fraud or drunken disorderly conduct, we still countenance his fingerprinting. A 2001 report from the Bureau of Justice Statistics, a component of the Department of Justice, found that 94 percent of adults believed the practice of collecting fingerprints upon arrest to be either “very acceptable” (78 percent), or “somewhat acceptable” (16 percent). Bureau of Justice Statistics, U.S. Dep’t of Justice, Public Attitudes Toward Uses of Criminal History Information, 43 (2001), available at http:// bjs.ojp.usdoj.gov/content/pub/pdf/pauchi.pdf.

13 A 1911 New York Times article coined this phrase, promising that fingerprinting would be the “great science” for




untold years to come. Keeping Track of the Criminal By His Finger Prints: The Wonderful Art, Long Used in China, Rapidly Being Adopted by the Police of This Country, with the New York Force Leading, N.Y. Times, July 30, 1911 (Sunday Magazine), at 12 [hereinafter Keeping Track of the Criminal].

14 In fact, a Gallup poll in 2005 found that 85 percent of Americans believed DNA evidence to be either completely reliable (27 percent of those polled), or very reliable (58 percent of respondents). If anything, the poll found, we already accept DNA testing as more definitive than fingerprinting, which only 69 percent of Americans found to be either completely reliable (16 percent) or very reliable (53 percent). See Darren K. Carlson, Americans Conclusive About DNA Evidence, Gallup, Nov. 15, 2005, http:// www.gallupcom/poll/19915/americans-conclusive-about-dna-evidence.aspx.

15 Simon A. Cole, Fingerprint Identification and the Criminal Justice System: Historical Lessons for the DNA Debate, in DNA and the Criminal Justice System: The Technology of Justice 63, 71-72 (David Lazer ed., 2004) [hereinafter Cole, Fingerprint Identification] (noting that routine fingerprinting became standard procedure throughout the United States following the First World War).

16 This is not to say that these intuitions did not exist; they clearly did. See, e.g., Keeping Track of the Criminal, supra note 13 (“Guilty men have grown to dread the finger prints.”).

17 While the historic reasoning for routine fingerprinting is sound, one issue that will be discussed in this Note is the lack of a firm judgment from any court regarding fingerprinting and the Fourth Amendment. See infra Part IV. While courts in the middle of the 20th Century did examine the constitutionality of fingerprinting, they did not directly discuss privacy concerns, but rather more colloquial complaints such as the public humiliation associated with fingerprinting. See, e.g., State ex rel. Mavity v. Tyndall, 66 N.E.2d 755 (Ind. 1946).

18 See infra Part II.B.1-2 (discussing the substantive differences between fingerprint evidence and DNA samples).

19 See infra Part III (applying the differences between DNA sampling and fingerprinting to the “totality of circumstances” framework for allowing a suspicion-less search, and the “special needs” exception to the Fourth Amendment).

20 The most obvious example of this is our intuitive suspicion of a criminal defendant’s silence at trial, and our judicial system’s requirement that this silence does not become prejudicial.

21 In fact, both the Pool and Anderson courts couched their rulings in the questionable assertion of a lesser privacy right for arrested individuals. See United States v. Pool, 645 F. Supp. 2d 903, 910-12 (E.D. Cal. 2009), aff’d, 2010 WL 3554049 (9th Cir. Sept. 14, 2010); Anderson v. Commonwealth, 650 S.E.2d 702, 705 (Va. 2007), cert. denied, 553 U.S. 1054 (2008).

23 U.S. Const. amend. IV.

24 See Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 616 (1989) (finding that drug and alcohol testing through blood samples by Federal Railroad Administration did involve a “search” under the Fourth Amendment); see also Cupp v. Murphy, 412 U.S. 291, 295 (1973) (finding that a search of the suspect’s fingernails was a physical examination beyond characteristics that are “constantly exposed to the public” and constituted a search).




25 Padgett v. Donald, 401 F.3d 1273, 1277 (11th Cir. 2005), cert. denied sub nom. Boulineau v. Donald, 546 U.S. 820 (2005) (extending the term “search” to include the taking of saliva samples from the inside of an individual’s mouth).

26 See, e.g., Mich. Dep’t of State Police v. Sitz, 496 U.S. 444 (1990) (finding a police highway sobriety checkpoint constitutional because the state interest in curbing drunk driving outweighed the relatively slight intrusion on motorists).

27 See, e.g., Griffin v. Wisconsin, 483 U.S. 868, 873-77 (1987) (finding that a probation officer’s warrantless search of a probationer’s home based on a tip from another officer met the special needs test, as seeking a warrant for the search was impractical); see also New Jersey v. T. L. O., 469 U.S. 325, 351-52 (1985) (Blackmun, J., concurring) (stressing that a totality of circumstances test should be the exception, not the rule, and that a special needs test-based firmly on the impracticality of a warrant or probable cause requirement-suffices to allow the searching of school students absent a warrant).

28 See Banks v. United States, 490 F.3d 1178 (10th Cir. 2007) (referring to FBI DNA database system as more efficient updating of fingerprint databasing in upholding collection of samples from paroled offenders); United States v. Kraklio, 451 F.3d 922, 924-25 (8th Cir. 2006) (upholding amendment of convicted individual’s probation orders to include mandatory DNA collection, based on federal statute, for inclusion in DNA database), cert. denied, 549 U.S. 1044 (2006); United States v. Sczubelek, 402 F.3d 175, 184-86 (3d Cir. 2005) (upholding federal collection requirement for probationer), cert. denied, 548 U.S. 919 (2006); Donald, 401 F.3d at 1280 (upholding DNA collection from incarcerated felons); Groceman v. United States, 354 F.3d 411, 413 (5th Cir. 2004) (upholding collection from incarcerated individuals); United States v. Kincade, 379 F.3d 813 (9th Cir. 2004) (upholding DNA collection from certain offenders on conditional release), cert. denied, 544 U.S. 924 (2005); Jones v. Murray, 962 F.2d 302, 307 (4th Cir. 1992) (upholding DNA collection from incarcerated individuals), cert. denied, 506 U.S. 977 (1992).

29 See, e.g., Sczubelek, 402 F.3d at 185.

30 Id. at 177; see also Groceman, 354 F.3d at 413-14 (“Though, like fingerprinting, collection of a DNA sample for purposes of identification implicates the Fourth Amendment, persons incarcerated after conviction retain no constitutional privacy against their correct identification.”).

31 See Murray, 962 F.2d at 306 (“[W]hen a suspect is arrested upon probable cause, his identification becomes a matter of legitimate state interest and he can hardly claim privacy in it. . . . While we do not accept even this small level of intrusion for free persons without Fourth Amendment constraint . . . the same protections do not hold true for those lawfully confined to the custody of the state.”).

32 Id. at 307 (“Thus, in the case of convicted felons . . . we find that the minor intrusion caused by the taking of a blood sample is outweighed by Virginia’s interest . . . .”).

33 See Nicholas v. Goord, 430 F.3d 652, 671-72 (2d Cir. 2005), cert. denied, 549 U.S. 953 (2006); Green v. Berge, 354 F.3d 675 (7th Cir. 2004); United States v. Kimler, 335 F.3d 1132, 1146 (10th Cir. 2003), cert. denied, 540 U.S. 1083 (2003); see also United States v. Conley, 453 F.3d 674, 679-81 (6th Cir. 2006) (finding a DNA collection statute constitutional under both the special needs and the totality of circumstances analysis).

34 Goord, 430 F.3d at 671.




35 Id.; see also Berge, 354 F.3d at 678-79.

36 Berge, 345 F.3d at 679 (“[G]iven that DNA is the most reliable evidence of identification-stronger even than fingerprints or photographs-we see no Fourth Amendment impediments . . . .”). The Berge court, it should be noted, was also careful to focus on the complaining inmate’s convicted status. Id.

37 645 F. Supp. 2d 903 (E.D. Cal. 2009), aff’d, 2010 WL 3554049 (9th Cir. Sept. 14, 2010).

38 18 U.S.C. § 3142(c)(1)(A) (2006) (listing DNA sampling among the conditions of pretrial release for individuals arrested and charged with certain crimes); 42 U.S.C. § 14135(a) (2006) (granting the Attorney General authority to regulate and carry out DNA sampling from individuals arrested for a federal offense).

39 Pool, 645 F. Supp. 2d at 910.

40 See id. at 911 (noting the minimal invasive nature of DNA testing).

41 Id. (drawing upon Anderson v. Commonwealth, 650 S.E.2d 702 (Va. 2007), cert. denied, 553 U.S. 1054 (2008)). The Anderson court upheld a state statute that authorized taking a DNA sample from anyone convicted of a violent felony and noted:Fingerprinting an arrested suspect has long been considered a part of the routine booking process. Similarly, the taking of a DNA sample by minimally intrusive means is justified by the legitimate interest of the government in knowing for an absolute certainty the identity of the person arrested, in knowing whether he is wanted elsewhere, and in ensuring his identification in the event he flees prosecution.Anderson, 650 S.E.2d at 706 (internal quotation marks omitted).

42 Anderson, 650 S.E.2d at 706 (“Like fingerprinting, the ‘Fourth Amendment does not require an additional finding of individualized suspicion’ before a DNA sample can be taken.” (quoting Jones v. Murray, 962 F.2d 302, 306 (4th Cir. 1992), cert. denied, 506 U.S. 977 (1992)).

80 As of a September 2006 report from the Bureau of Justice Statistics, all fifty-five United States jurisdictions (including all fifty states, the District of Columbia, Guam, Puerto Rico, federal offenders, and offenders charged by the Department of Defense) required databasing of DNA samples for convicted sex offenders. More than fifty jurisdictions included DNA sampling from individuals convicted of murder, offenses against children, kidnaping, assault and battery, robbery and burglary. forty-four jurisdictions required DNA sampling from individuals convicted of any felony, and thirty-one jurisdictions as of 2006 had expanded their database to include samples from juveniles. Bureau of Justice Statistics, U.S. Dep’t of Justice, DNA Forensics: Expanding Uses and Information Sharing 2 (2006) [hereinafter DNA Forensics].

81 See, e.g., Jones v. Murray, 962 F.2d 302 (4th. Cir. 1992), cert. denied, 506 U.S. 977 (1992).

82 United States v. Kincade, 379 F.3d 813, 839 (9th Cir. 2004), cert. denied, 544 U.S. 924 (2005).

83 See United States v. Kriesel, 508 F.3d 941, 950 (9th Cir. 2007).

84 See, e.g., State v. Raines, 857 A.2d 19 (Md. 2004) (upholding sampling of persons convicted of certain burglary




misdemeanors).

85 See, e.g., Good v. Superior Court, 71 Cal. Rptr. 3d 125 (Cal. Ct. App. 2008).

86 See infra note 225 and accompanying text (discussing efforts of J. Edgar Hoover to promote universal fingerprinting).

87 Jones v. Murray, 962 F.2d 302, 310-11 (4th. Cir. 1992), cert. denied, 506 U.S. 977 (1992).

88 DNA Forensics, supra note 80, at9-10. The Justice Department report usesrecidivism data to suggest that DNA sampling can have both a deterrent effect and lead to the solving of more serious crimes. The report discusses the controversial “lesser offenses” initiative in New York City, whereby law enforcement seeks DNA samples after convictions for minor property crimes in hopes of prompting a database match with unsolved or future serious crimes, such as murder or rape. The program identified a link between lesser offenses and open murder and rape cases, and prompted an expansion of the city’s forensic program. Id.

89 After all, if an arrestee is presumed innocent, there can be no state interest in preventing recidivism in the future until he is convicted.

90 See, e.g., United States v. Sczubelek, 255 F. Supp. 2d 315, 323 (D. Del. 2003) (“[T]he ultimate goals of solving past and future criminal investigations, exonerating the innocent and deterring recidivism.”), aff’d, 402 F.3d 175 (3d Cir. 2005).

107 Cole, Suspect Identities, supra note 10, at 101.

108 Id. at 103.

109 Id. at 101.

110 See, e.g., United States v. Kincade, 379 F.3d 813, 842 n.3 (9th Cir. 2004) (Gould, J., concurring) (“DNA stores and reveals massive amounts of personal, private data about that individual, and the advance of science promises to make stored DNA only more revealing in time.”), cert. denied, 544 U.S. 924 (2005).

111 See Julie A. Singer et al., The Impact of DNA and Other Technology on the Criminal Justice System: Improvements and Complications, 17 Alb. L.J. Sci. & Tech. 87 (2007).

112 Id. at 123.

113 Id. (citing Paul E. Tracy & Vincent Morgan, Big Brother and His Science Kit: DNA Databases for 21st Century Crime Control?, 8 Psychol. Pub. Pol’y & L. 339, 339-40 (2002)).

114 For instance, in Orange County, California, the local District Attorney created his own DNA database in order to circumvent federal and state evidentiary rules. Jason Felch & Maura Dolan, A War for Control of Forensic Science,




L.A. Times, Dec. 14, 2008, at A1. Felch and Dolan also reported that the D.A. engaged in a power struggle with the local Sheriff over control of the county’s DNA samples. Id.

115 For instance, one of the most controversial DNA search methods, a “familial search” using a known DNA sample to match unsolved crimes to the sampled individual’s family members recently yielded a major law enforcement coup, the arrest of a long-wanted serial killer. Jennifer Steinhauer, ‘Grim Sleeper’ Arrest Fans Debate on DNA Use, N.Y. Times, July 9, 2010, at A14. While the two states that allow familial searches, Colorado and California, strictly regulate their implementation, the process has nonetheless raised concerns with civil liberties advocates. Id.

116 See Elizabeth E. Joh, Essay, Reclaiming “Abandoned” DNA: The Fourth Amendment and Genetic Privacy, 100 Nw. U. L. Rev. 857 (2006). But see D. H. Kaye, Science Fiction and Shed DNA, 101 Nw. U. L. Rev. Colloquy 62 (2006), http://colloquy.law.northwestern.edu/main/2006/12/science_fiction.html (replying to Joh, supra). Joh and Kaye debate the merits of the “junk DNA” argument. To avoid simply rehashing the argument, this Note focuses on the perceptions of genetic value DNA evidence carries, and assumes merely that there is potential for DNA samples to be used improperly based on this perception.

117 Simon A. Cole, Is the “Junk” DNA Designation Bunk?, 102 Nw. U. L. Rev. Colloquy 54 (2007), http:// www.law.northwestern.edu/lawreview/colloquy/2007/23/lrcoll2007n23cole.pdf.

118 Id.

17 WMMBRJ 475End of Document © 2013 Thomson Reuters. No claim to original U.S. Government Works.



§ 14135. Debbie Smith DNA Backlog Grant Program, 42 USCA § 14135

United States Code Annotated Title 42. The Public Health and Welfare

Chapter 136. Violent Crime Control and Law EnforcementSubchapter IX. State and Local Law Enforcement

Part A. DNA Identification

42 U.S.C.A. § 14135

§ 14135. Debbie Smith DNA Backlog Grant ProgramEffective: October 8, 2008

(a) Authorization of grants The Attorney General may make grants to eligible States or units of local government for use by the State or unit of local government for the following purposes:

(1) To carry out, for inclusion in the Combined DNA Index System of the Federal Bureau of Investigation, DNA analyses of samples collected under applicable legal authority.

(2) To carry out, for inclusion in such Combined DNA Index System, DNA analyses of samples from crime scenes, including samples from rape kits, samples from other sexual assault evidence, and samples taken in cases without an identified suspect.

(3) To increase the capacity of laboratories owned by the State or by units of local government to carry out DNA analyses of samples specified in paragraph (1) or (2).

(4) To collect DNA samples specified in paragraph (1).

(5) To ensure that DNA testing and analysis of samples from crimes, including sexual assault and other serious violent crimes, are carried out in a timely manner.

(b) Eligibility For a State or unit of local government to be eligible to receive a grant under this section, the chief executive officer of the State or unit of local government shall submit to the Attorney General an application in such form and containing such information as the Attorney General may require. The application shall, as required by the Attorney General--

(1) provide assurances that the State or unit of local government has implemented, or will implement not later than 120 days after the date of such application, a comprehensive plan for the expeditious DNA analysis of samples in accordance with this section;



§ 14135. Debbie Smith DNA Backlog Grant Program, 42 USCA § 14135

(2) include a certification that each DNA analysis carried out under the plan shall be maintained pursuant to the privacy requirements described in section 14132(b)(3) of this title;

(3) include a certification that the State or unit of local government has determined, by statute, rule, or regulation, those offenses under State law that shall be treated for purposes of this section as qualifying State offenses;

(4) specify the allocation that the State or unit of local government shall make, in using grant amounts to carry out DNA analyses of samples, as between samples specified in subsection (a)(1) of this section and samples specified in subsection (a)(2) of this section;

(5) specify that portion of grant amounts that the State or unit of local government shall use for the purpose specified in subsection (a)(3) of this section;

(6) if submitted by a unit of local government, certify that the unit of local government has taken, or is taking, all necessary steps to ensure that it is eligible to include, directly or through a State law enforcement agency, all analyses of samples for which it has requested funding in the Combined DNA Index System.

(7) specify that portion of grant amounts that the State or unit of local government shall use for the purpose specified in subsection (a)(4) of this section.

Credits(Pub.L. 106-546, § 2, Dec. 19, 2000, 114 Stat. 2726; Pub.L. 108-405, Title II, §§ 202, 206, Oct. 30, 2004, 118 Stat. 2266, 2272; Pub.L. 109-162, Title X, § 1003, Jan. 5, 2006, 119 Stat. 3085; Pub.L. 110-360, § 2, Oct. 8, 2008, 122 Stat. 4008.)

Notes of Decisions (2)

42 U.S.C.A. § 14135, 42 USCA § 14135Current through P.L. 112-209 approved 12-18-12End of Document © 2013 Thomson Reuters. No claim to original U.S. Government Works.



§ 14132. Index to facilitate law enforcement exchange of DNA..., 42 USCA § 14132

United States Code Annotated Title 42. The Public Health and Welfare

Chapter 136. Violent Crime Control and Law EnforcementSubchapter IX. State and Local Law Enforcement

Part A. DNA Identification

42 U.S.C.A. § 14132

§ 14132. Index to facilitate law enforcement exchange of DNA identification information

Effective: January 5, 2006

(a) Establishment of indexThe Director of the Federal Bureau of Investigation may establish an index of--

(1) DNA identification records of--

(A) persons convicted of crimes;

(B) persons who have been charged in an indictment or information with a crime; and

(C) other persons whose DNA samples are collected under applicable legal authorities, provided that DNA samples that are voluntarily submitted solely for elimination purposes shall not be included in the National DNA Index System;

(2) analyses of DNA samples recovered from crime scenes;

(3) analyses of DNA samples recovered from unidentified human remains; and

(4) analyses of DNA samples voluntarily contributed from relatives of missing persons.

(b) Information The index described in subsection (a) of this section shall include only information on DNA identification records and DNA analyses that are--

(1) based on analyses performed by or on behalf of a criminal justice agency (or the Secretary of Defense in accordance with section 1565 of Title 10) in accordance with publicly available standards that satisfy or exceed the guidelines for a quality assurance program for DNA analysis, issued by the Director of the Federal Bureau of Investigation under section 14131 of this title;

(2) prepared by laboratories that--




(A) not later than 2 years after October 30, 2004, have been accredited by a nonprofit professional association of persons actively involved in forensic science that is nationally recognized within the forensic science community; and

(B) undergo external audits, not less than once every 2 years, that demonstrate compliance with standards established by the Director of the Federal Bureau of Investigation; and

(3) maintained by Federal, State, and local criminal justice agencies (or the Secretary of Defense in accordance with section 1565 of Title 10) pursuant to rules that allow disclosure of stored DNA samples and DNA analyses only--

(A) to criminal justice agencies for law enforcement identification purposes;

(B) in judicial proceedings, if otherwise admissible pursuant to applicable statutes or rules;

(C) for criminal defense purposes, to a defendant, who shall have access to samples and analyses performed in connection with the case in which such defendant is charged; or

(D) if personally identifiable information is removed, for a population statistics database, for identification research and protocol development purposes, or for quality control purposes.

(c) Failure to comply Access to the index established by this section is subject to cancellation if the quality control and privacy requirements described in subsection (b) of this section are not met.

(d) Expungement of records

(1) By director

(A) The Director of the Federal Bureau of Investigation shall promptly expunge from the index described in subsection (a) of this section the DNA analysis of a person included in the index--

(i) on the basis of conviction for a qualifying Federal offense or a qualifying District of Columbia offense (as determined under sections 14135a and 14135b of this title, respectively), if the Director receives, for each conviction of the person of a qualifying offense, a certified copy of a final court order establishing that such conviction has been overturned; or




(ii) on the basis of an arrest under the authority of the United States, if the Attorney General receives, for each charge against the person on the basis of which the analysis was or could have been included in the index, a certified copy of a final court order establishing that such charge has been dismissed or has resulted in an acquittal or that no charge was filed within the applicable time period.

***

(2) By States

(A) As a condition of access to the index described in subsection (a) of this section, a State shall promptly expunge from that index the DNA analysis of a person included in the index by that State if--

(i) the responsible agency or official of that State receives, for each conviction of the person of an offense on the basis of which that analysis was or could have been included in the index, a certified copy of a final court order establishing that such conviction has been overturned; or

(ii) the person has not been convicted of an offense on the basis of which that analysis was or could have been included in the index, and the responsible agency or official of that State receives, for each charge against the person on the basis of which the analysis was or could have been included in the index, a certified copy of a final court order establishing that such charge has been dismissed or has resulted in an acquittal or that no charge was filed within the applicable time period.

Credits(Pub.L. 103-322, Title XXI, § 210304, Sept. 13, 1994, 108 Stat. 2069; Pub.L. 106-113, Div. B, § 1000(a)(1) [Title I, § 120], Nov. 29, 1999, 113 Stat. 1535, 1501A-23; Pub.L. 106-546, § 6(b), Dec. 19, 2000, 114 Stat. 2733; Pub.L. 108-405, Title II, § 203(a), (d), Title III, § 302, Oct. 30, 2004, 118 Stat. 2269, 2270, 2272; Pub.L. 109-162, Title X, § 1002, Jan. 5, 2006, 119 Stat. 3084.)

Notes of Decisions (1)

42 U.S.C.A. § 14132, 42 USCA § 14132Current through P.L. 112-209 approved 12-18-12End of Document © 2013 Thomson Reuters. No claim to original U.S. Government Works.


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