By Alathea Porter and John Reinstein
The Daily Record Newswire
Imagine a federal agent reaching into your mouth and taking a swab of your DNA for a national data bank. It’s a search, and an intrusive one at that, carried out without a warrant or probable cause, for the sole purpose of collecting evidence for use in the investigation and prosecution of crimes.
While it may seem surprising to some, the federal government has been doing exactly that. And since October 2009, a DNA sample has been routinely taken from every person who is accused of any federal crime and from immigration detainees.
The samples are indexed and included in the FBI’s Combined DNA Identification System, or CODIS, a national database that catalogues DNA profiles of federal and state convicts and arrestees, as well as DNA profiles collected from crime scenes across the country. See 41 U.S.C. §14135a.
DNA data-banking has been with us for some time. States provide DNA profiles for inclusion in CODIS. In 2000, Congress enacted the DNA Analysis Backlog Elimination Act, which mandated that DNA samples be taken from individuals who had been convicted of certain serious “qualifying federal offenses,” who were in custody, on probation or on supervised release.
Through subsequent legislation, the definition of “qualifying federal offense” was extended to “any felony,” thereby calling for the collection of DNA samples from all convicted felons.
Thereafter, pursuant to the DNA Fingerprint Act of 2005, in connection with a related amendment to the Adam Walsh Child Protection and Safety Act of 2006, Congress amended the backlog elimination act to include all individuals who are arrested, facing charges or convicted and immigration detainees.
Congress simultaneously amended the Bail Reform Act, making it a mandatory condition of pretrial release that a defendant provide a DNA sample. That expansion of the act became effective Jan. 9, 2009, once the regulations were promulgated by the attorney general. See 28 C.F.R. §28.12. Collection of DNA in connection with the initial processing of persons facing federal charges began in October 2009.
The new requirement, arrestee DNA profiling, clearly implicates Fourth Amendment concerns and raises issues left open by the decision of the 1st U.S. Circuit Court of Appeals in United States v. Weikert. 504 F.3d 1 (1st Cir. 2007) (upholding the collection of a DNA sample from a convicted felon on supervised release, but reserving the question of whether the government’s ability to maintain DNA would survive the termination of the period of supervised release).
Exception to the rule
It is undisputed that the taking of a DNA sample constitutes a search for purposes of the Fourth Amendment. The U.S. Supreme Court has emphasized that warrantless searches “are per se unreasonable under the Fourth Amendment — subject only to a few specifically established and well-delineated exceptions.” Arizona v. Grant, 129 S. Ct. 1710, 1716 (2009) (internal citations omitted).
As such, without a warrant or a showing of probable cause to conduct DNA profiling, the government must establish an exception to the Fourth Amendment to support such a search.
Several circuit courts have addressed the constitutionality of DNA testing of convicted felons, including those who are on conditional release post-incarceration. In that context, courts have recognized two exceptions to the Fourth Amendment’s “per se unreasonable” mandate:
(1) the “special needs” test, and
(2) the “totality of the circumstances” test.
The “special needs” test permits suspicion-less and warrantless searches conducted for non-law enforcement purposes where adherence to the warrant and probable cause requirement would be impractical.
The “totality of the circumstances” test balances the invasion of a person’s interest in privacy against the state’s interest in conducting the search.
To date, no case challenging the constitutionality of such arrestee DNA profiling has been decided by the Supreme Court or any of the circuit courts. However, both the 3rd and the 9th Circuit have cases, with conflicting District Court decisions, currently pending regarding that very issue. See United States v. Mitchell, C.A. 09-4718 (3rd Cir. 2009) (appeal of decision that law violates the Fourth Amendment) and United States v. Pool, C.A. No. 09-10303 (9th Cir. 2009) (appeal of decision that law is constitutional).
DNA profiling of arrestees raises quite different issues from the profiling of convicted felons. Court decisions addressing post-conviction profiling under a totality-of-circumstances standard have stressed the diminished privacy interest of those convicted of crime, currently in custody or under supervision. The current round of litigation pits the government’s general and very broadly asserted interest in law enforcement against the very different and substantial privacy interests of arrestees.
Under the current law, DNA is being collected from those who have been accused — not convicted — of a crime and who are entitled to the presumption of innocence.
While the government may have a law enforcement interest in obtaining DNA profiles and comparing them to open cases, there is no compelling interest in obtaining such profiles prior to conviction.
DNA profiling is not relevant to the two issues to be addressed by pretrial conditions of release: (1) assuring the appearance of the defendant in court, and (2) providing safety to the community.
Moreover, DNA is poorly suited to ascertain the identity of pre-trial releasees because it takes too long to analyze and index the DNA profile, DNA is less reliable than other identification methods, and as a practical matter DNA is not used for that purpose.
DNA analysis takes a minimum of 20 hours of laboratory work, generally spread out over several days, and because CODIS compares DNA profiles of arrestees only with profiles collected at crime scenes and not with other offender samples, the taking of DNA has absolutely no relationship to the goal of ascertaining true identity.
On the other hand, the FBI guarantees that a request for fingerprint identification will be processed and sent back within two hours or less of the FBI’s receipt of a scanned print.
Moreover, fingerprints may provide a better record of personal identity than DNA. For example, monozygotic twins can be distinguished by their fingerprints but not by their DNA. See Mitchell, 2009 WL 5551383, *10.
As the District Court noted in Mitchell, “to compare the fingerprinting process and the resulting identification information obtained therefrom with DNA profiling is pure folly. Such over simplification ignores the complex, comprehensive, inherently private information contained in a DNA sample.” Mitchell, 2009 WL 5551383, *10 (noting the identification issue is a “red herring” as there is no compelling reason to require a DNA sample in order to “identify” an arrestee).
In any event, pre-trial collection of DNA may be of little practical value as in many cases the backlog of untested DNA samples can prevent the testing and indexing of a DNA sample before the case can be tried.
While the act provides for expungement of DNA profiles from CODIS in the event a case is dismissed, charges are dropped or the individual is acquitted, expungement is not automatic and requires some effort, making it likely that the DNA samples of people who are not guilty of any crime will be retained indefinitely. See 42 U.S.C. §14132(d)(1)(A)(ii).
The government has downplayed the significant privacy intrusion of DNA profiling and argued that the collection and indexing of DNA is the proper technological progression of photos and fingerprints. See United States v. Pool, C.A. No. 09-10303.
However, “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.” United States v. Kincade, 379 F. 3d 813, 842, n. 3 (9th Cir. 2009) (Gould, J., concurring).
The genetic information contained in DNA pertains not only to the individual whose DNA is sampled, but also to anyone who shares the same bloodline.
Collecting DNA samples may be a significant aid to law enforcement, but that does not justify setting aside the Fourth Amendment. The purpose of DNA profiling is to obtain evidence for the investigation and prosecution of crimes. That being so, the Fourth Amendment requires the government to show on a case-by-case basis that probable cause exists to believe that examination of the DNA sample will provide evidence of a crime.
Alathea Porter is an associate at LibbyHoopes in Boston. Her practice focuses on white-collar criminal defense and complex civil litigation. John Reinstein is senior counsel and legal director of the American Civil Liberties Union of Massachusetts.
