PRESUMED INNOCENT? THE CONFUSED STATE OF U.S. DNA COLLECTION LAWS
By Michael T. Risher

In 2009, two of our nation’s largest criminal-justice systems-the federal government’s and California’s-began a massive new program of seizing DNA from individuals who had not been convicted of any crime, without a search warrant or any judicial oversight. The synchronous timing was mere coincidence, but the effect has been that a number of courts are now examining the constitutionality of the practice and reaching conflicting conclusions. This article will summarize the history of constitutional challenges to warrantless DNA seizure and the current litigation dealing with this contentious and rapidly evolving issue.

History

The Fourth Amendment to the U.S Constitution prohibits “unreasonable” searches and seizures. This generally means that the government must obtain a search warrant before it conducts a search, (although there are many exceptions to this warrant requirement). When laws were first enacted that required persons who had been convicted of serious crimes to provide a DNA sample for analysis and inclusion in CODIS they were immediately challenged in court on the grounds that the mandatory extraction and analysis of their DNA constituted a search (just as, courts had held, did mandatory drug testing), and that the government should therefore have to obtain a warrant to do it. The courts universally-and quite properly-accepted the first part of this argument, holding that DNA sampling implicated both the physical integrity of the body and personal privacy and is therefore a search. But the courts were initially split on the question of whether this meant that the government needed a warrant. Some judges believed that because DNA contains so much personal information a warrant should be required; others believed that the fact of a criminal conviction reduced a person’s privacy interest so much that it was reasonable to insist that convicted felons provide DNA samples without a warrant. After all, a person serving a prison sentence has essentially no privacy rights; even a person who is granted probation or is released from prison onto parole has vastly reduced privacy rights and must allow the police to search his or her house without a warrant or even a reason to suspect any wrongdoing. The latter view eventually won out, and every appellate court to consider the issue has held (often over strongly worded dissents) that the government may require people convicted of felonies to provide DNA samples for inclusion in CODIS.

Mandatory DNA collection from persons who have been arrested but not convicted presents a very different question, and appellate courts have reached different opinions about its legality. People who have merely been arrested because a single police officer has reason to believe they may have committed a crime have much stronger privacy rights than have people who have been convicted of a felony following a trial or a guilty plea; and the government’s interest in collecting DNA from people who may well be innocent is much less than it is in taking DNA from convicted murderers and rapists.

The first two appellate decisions on the question were decided in 2006 and 2007 but reached conflicting conclusions. The Minnesota Court of Appeals held that forcing arrestees to provide DNA samples violated the Fourth Amendment, while the Supreme Court of Virginia held that it did not.[1] Also in 2007, a federal trial court held that arrestee testing violated the Fourth Amendment in an opinion that the court did not even publish. Then, in May 2009, an Arizona state trial court ruled that a law requiring minors to provide a DNA sample upon arrest violated the Fourth Amendment.[2]

The federal and California laws brought a new wave of litigation over the practice, again with varying results. The first two cases were federal prosecutions in which a criminal defendant was ordered to provide a DNA sample as a condition of being released on bail pending trial, as required by a recently amended federal law. In May 2009 a federal judge in California upheld the statute in United States v. Pool; six months later, in United States v. Mitchell, a federal judge in Pennsylvania came to the opposite conclusion, holding that the law’s requirements violated the Fourth Amendment’s prohibitions against unreasonable searches and seizures.

The losing side in each case took an appeal to the United States Court of Appeals in San Francisco and Philadelphia, respectively. The way these two appellate courts treated the cases in itself illustrates how seriously the courts are taking this issue. In general, the United States Court of Appeals uses three-judge panels to hear and decide cases; in very rare cases the court may decide that the whole court (or a larger panel) will rehear a case that was already heard by one of these panels, a procedure known as rehearing en banc.[3] In Mitchell, the court apparently thought that the issue was so significant that the entire court decided to hear the case without even allowing a three-judge panel to decide the matter, something that has rarely if ever occurred before. As discussed below, in July 2011 a slim majority of the court upheld the DNA collection.[4] And in Pool, after the initial panel upheld collection in a 2-1 decision, the Ninth Circuit also decided to rehear the case en banc.[5]

Meanwhile, other courts were hearing challenges to California’s law, which requires that anybody arrested on suspicion of a felony-which can include simple drug possession, knowingly writing a bad check, or entering a store planning to shoplift a pack of gum-provide a sample, regardless of whether they are ever even charged with a crime. This law affects a huge number of people; some 300,000 people are arrested in California every year on suspicion of a felony, and approximately 100,000 of them are never convicted of anything. The first of these challenges is a civil class action challenge to the law brought by the ACLU of Northern California. The named plaintiffs in the suit were all arrested for felonies-three of them at political demonstrations, and one when he tried to return camera equipment that had been stolen from the federal government. Three of them were never even charged with a crime, and one of the demonstrators was charged but the case was dismissed. But all four were forced to provide DNA samples simply because of the arrest. They asked the federal district court in San Francisco to issue a preliminary injunction to stop the state from taking DNA samples from arrestees without obtaining a search warrant, but the court refused to do so.[6] That case is now on appeal to the Ninth Circuit, the same court that is considering the Pool case. It is impossible to know when the court will issue its opinion in either case.

At the same time, Californians who had refused to provide a sample upon arrest were being prosecuted in state court; one of them went to trial, was convicted, and took an appeal. And in August 2011, the California Court of Appeals in People v. Buza[7] held that California’s arrestee-testing law violated the Fourth Amendment.

The Mitchell and Buza Appellate Opinions

Thus, within the space of a few weeks, two appellate courts reached very different conclusions about the constitutionality of mandatory DNA sampling. Although the cases’ holdings are technically not in conflict-Mitchellupheld taking DNA from a person only after a grand jury had already issued an indictment, whereas Buza dealt with people who had only been arrested-the opinions take starkly contrasting approaches to the broader issue of when the government can force a presumptively innocent person to provide a DNA sample without a warrant.

The Mitchell majority (9 of 14 judges) first acknowledged that DNA sampling and analysis constituted two separate searches for the purposes of the Fourth Amendment, searches that violate the Fourth Amendment unless they are reasonable. It also acknowledged that our DNA contains a huge amount of personal information; but it then discounted the seriousness of the intrusion that these searches caused, for two different reasons. As to the initial sampling, it reasoned that the physical intrusion was minor, less than the intrusion caused by a blood draw or mandatory urinalysis for example, both of which have been described by the Supreme Court as being only minimally intrusive. As to genetic privacy, the court opined that people who provide samples have little to worry about: federal law prohibits the government from using the samples for anything other than criminal-identification purposes, and the profile that is generated by the DNA analysis involves only a small portion of “junk” DNA, which contains little private information. On the other side of the balance the court held that the government has a strong interest in identifying arrestees, a concept that the court said could include not just knowing who it had arrested but also whether he or she has committed any uncharged crimes. The court believed that just as the police take fingerprints from people they have arrested and then use those prints not just to identify who they have but also to see whether those prints have been found at the scenes of unsolved crimes, so they should be able to use DNA for both of those same purposes.

The Buza court took a very different view, one that displayed a much clearer understanding of how the government is using DNA and how that may threaten privacy. First, the court rejected the analogy to fingerprinting, both because fingerprints contain none of the personal information that our DNA does (most courts hold that fingerprinting is not even a search for Fourth Amendment purposes) and because fingerprinting of arrestees had become a routine part of our criminal-justice system long before the courts started taking the Fourth Amendment rights of arrestees seriously (and, the court might have added, long before computerized databases made it possible to use fingerprints in the way that DNA is now being used). It also properly rejected the government’s assertion that the police are using arrestee DNA sampling to identify arrestees-meaning to determine who they have arrested-the law requires that the police identify an arrestee (through fingerprints) before they even take a DNA sample, and since the state takes about a month to process an arrestee’s DNA sample it could not even use a sample for identification purposes. Instead, as the Buza court made clear, the only reason the government is taking DNA from arrestees is to try to implicate them in uncharged crimes. And although solving crime is certainly a legitimate governmental interest, the courts have long made clear that, outside of emergency situations, the Fourth Amendment prohibits the police from conducting mass, warrantless searches just on the hope that they will uncover evidence of a crime.

The Future

As opinions by intermediate appellate courts, both the Buza and Mitchell opinions will not be the last word on this topic. Since Buza struck down a statute, the California Supreme Court may well decide to take up the case, and the issue of whether the Fourth Amendment allows the government to seize DNA from all arrestees will almost certainly end up in the U.S. Supreme Court within the next few years. It is impossible to predict how the issue will ultimately be resolved. But one thing is clear: courts looking at the issue of when the government should be allowed to seize, analyze, and stockpile our genetic blueprint should do so based on a clear and complete understanding of the interests involved on both sides, rather than relying on assumptions about DNA databanks or unsupported claims that it is or is not useful for particular purposes. This will require that they take a hard look at the privacy interests involved, the efficacy of taking DNA from all arrestees rather than waiting for the criminal justice system to sort out who is guilty and who is not, and also why the government is taking DNA from arrestees. A decision that will have such an impact on the genetic privacy of so many Americans must be made based on evidence and science, not on speculation and mere assertions.[8]

Michael Risher, JD, is an attorney at ACLU of Northern California.

Endnotes

1. Anderson v. Commonwealth of Virginia, 274 Va. 469 (2007); In re Welfare of C.T.L., 722 N.W.2d 484, (Minn.App. 2006).

2. In the Matter of Bojorquez , (Pima Cnty. Juvenile Ct. No. 168544-04). An Arizona appellate court is currently considering the issue in a separate set of cases consolidated under the name Mario W. v. Kaipio, No. 1CA-SA 11-0016.

3. From the French for “in the bench,” referring to the full bench of judges.

4. United States v. Mitchell, — F.3d —-, 2011 WL 3086952 (3rd Cir. Jul. 25, 2011).

5. On September 19, 2011, shortly before this article was published, the Ninth Circuit dismissed the Pool appeal, because Mr. Pool had plead guilty to a lesser charge and the case therefore no longer presented the question of whether the government could force a person merely accused of a crime to provide a DNA sample. The court vacated all the prior opinions in this case, as is standard when a case becomes moot on appeal.

6. Haskell v. Brown, 677 F.Supp.2d 1187 (N.D. Cal. 2009).

7. People v. Buza 197 Cal.App.4th 1424 (Cal.App. 2011).

8. For a more detailed legal analysis of the issue, see Risher, Warrantless Collection of DNA From People Merely Accused of a Crime Raises Not Only Privacy Concerns But Also Questions About Efficacy, 88 Criminal Law Reporter 320 (Bureau of Ntl. Affairs 2010).