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Features: No DNA Testing for Federal Probationers?
Posted by Ernest Miller on Friday, November 08 @ 11:02:06 EST Biometrics
The Washington Post carries an AP wirestory noting that U.S. District Judge William Shubb of the Eastern District of California (note use of flash and new agey California mood music) has declared 42 USC 14135a, part of the DNA Analysis Backlog Elimination Act (DABEA) unconstitutional under the Fourth Amendment as applied to federal felons on probation (Judge Rejects Forced DNA Testing). Read the Memorandum and Order [PDF]. [via How Appealing]

DABEA mandates DNA samples be taken from anyone convicted of violent offenses such as homicide, sex crimes, kidnapping or robbery. The defendant in this case, Danny Miles, had been convicted of armed robbery, a qualifying offense, in 1974 and had completed his time. In 1996 he was convicted of being in possession of a gun (illegal for convicted felons - but not a qualifying offense under DABEA) and was on supervised release when he was ordered to submit a blood sample that would result in his DNA being added to the FBI's COmbined DNA Index System (CODIS). The purpose of CODIS is to enable "law enforcement officials to link DNA evidence found at a crime scene with a suspect whose DNA is already on file." Miles, of course (or there wouldn't have been a case), refused to comply.

District Judge Shubb (say that three times fast) rejected Miles' textual and legislative history arguments, holding that the text of the statute did cover his situation. However, the court also opined that:

Defendant alternatively contends that the Act, if applied to him, is unconstitutional under the Fourth Amendment because it requires him to submit to a blood test without individualized suspicion that he has engaged in criminal wrongdoing other than the offense for which he has already been convicted. For the reasons that follow, the court agrees....
The court cannot accept the government's argument that defendant's expectation of privacy was obliterated forever when he was convicted of a qualifying offense thirty years ago. Having fully served his sentence for that crime, defendant had an objectively reasonable expectation that after three decades the government would not use that offense as a justification for invading his bodily integrity and obtaining his identifying information without some individualized suspicion of criminal wrongdoing.
The court based its analysis on two recent Supreme Court decisions City of Indianapolis v. Edmond (2000) (holding that because a highway drug interdiction checkpoint program's primary purpose was indistinguishable from the general interest in crime control, the checkpoints violate the Fourth Amendment) and Ferguson v. City of Charleston (2001) (holding that drug tests on women giving birth for law enforcement purposes is an unreasonable search if the patient has not consented to the procedure. The interest in using the threat of criminal sanctions to deter pregnant women from using cocaine cannot justify a departure from the general rule that an official nonconsensual search is unconstitutional if not authorized by a valid warrant.).

Judge Shubb declared that these cases have overruled the analysis in Rise v. Oregon (9th Cir. 1995), in which a similar state DNA testing law was found to be constitutional.

Note, however, that this is a rather limited ruling and will not likely have any effect on collecting DNA evidence from criminals caught in the future.

So, even if the decision is unchallenged or is upheld, only those who are undergoing supervision for crimes unrelated to those covered by the act, and who have already served time for the crimes unrelated to the act will be affected. This decision could be applied to cases where a convicted felon is on probation for a qualifying offense. Still, many, if not most, criminals newly caught will have their DNA put into the CODIS database. I'm not necessarily opposed to this, but I do have concerns about the use to which this database may eventually be put and if the protections in place to discourage misuse are strong enough.

The decision is even more limited according to this interesting footnote (#3 actually):

Because defendant was specifically directed to submit to blood testing, the court is not called upon to express any opinion on the constitutionality of other means of collecting DNA samples under the Act. [In other words, it might be permissible for the goverment to obtain your DNA from stray skin cells you might leave during an office visit with your parole officer.]
 
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Related Links
· Washington Post
· AP
· William Shubb
· Eastern District of California
· 42 USC 14135a
· DNA Analysis Backlog Elimination Act
· Judge Rejects Forced DNA Testing
· Memorandum and Order
· How Appealing
· FBI
· COmbined DNA Index System
· City of Indianapolis v. Edmond
· Ferguson v. City of Charleston
· Rise v. Oregon
· More about Biometrics
· News by Ernest Miller


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