Saturday, April 7th, 2007

DNA Search of Non-Violent Probationers Upheld

United States v. Amerson, Docket No. 05-1423-cr (2d Cir. Mar. 29, 2007) (Calabresi, Katzmann, B.D. Parker, C.JJ.): In this case, the Court upholds, against a Fourth Amendment challenge, the federal program of DNA testing, to which prisoners, those on supervised release, and probationers are subject, as applied to probationers convicted of non-violent crimes. On its face, such a program faces a Fourth Amendment obstacle, since it constitutes a search without any suspicion of wrongdoing, much less probable cause, a search that is ordinarily unreasonable. The Court follows its previous decisions in Roe v. Marcotte, 193 F.3d 72, and Nicholas v. Goord, 430 F.3d 652, in holding that the proper Fourth Amendment test to apply to such a case is the “special needs” test rather than a “reasonableness” test evaluated on the totality of the circumstances. That test, as applied by the Supreme Court, has required the existence of a “special need” for the search that was either not related to the “general interest in crime control” or, in one case, was questioning of the general public to find witnesses to a nearby crime, a procedure that was neither an intrusion on a suspect nor one to which the concept of “suspicion” logically applied. The Court finds a “special need” here, as it did in Marcotte and Nicholas, even though the purpose of the DNA search is principally to solve a crime committed by the person searched. The Court goes on to apply the second prong of the special needs test, balancing the Fourth Amendment intrusion against the governmental need. The Court finds the intrusion involved in a blood test to obtain and analyze the DNA quite “small,” given the nature of the intrusion itself and statutory limits on the DNA analysis and its dissemination and use. On the other hand, it finds the governmental interest in solving crime, and occasionally excluding a suspect, is “strong,” “compelling,” or “monumental.” Given this balance, it holds that the DNA testing and analysis does not offend the Fourth Amendment.

There are a number of observations worth making concerning this holding. The most important is that it has no limit. The fact that the person from whom the DNA was taken was on probation plays almost no role in the constitutional analysis, and that analysis can be extended to anyone. The need to obtain identification of those who might commit crime is always great and the personal interest in avoiding a blood test or saliva swab small. The government, indeed, likens DNA tests to fingerprints, and some states require a fingerprint to obtain a driver’s license. The analysis in this opinion would logically permit DNA to be taken in those circumstances. This is not, moreover, a far-fetched result. Congress has recently extended the DNA program to require DNA searches “from individuals who are arrested, facing charges, or convicted, or from non-United States persons who are detained under the authority of the United States.” See Pub. L. No. 109-162 § 1004, 119 Stat. 2960 (2006) (codified at 42 U.S.C. § 14135a(a)(1)(A)). Indeed, there have been scholarly calls for universal DNA testing. The courts owe it to the public to adopt an analysis that indicates that it has some limit on such a clearly unacceptable result. It is a shame that there have not been more judges with the wisdom and courage of Judge Kozinski, who pointed out that this program created a “huge end run around the Fourth Amendment” since it was “hard to see how we can keep the database from expanding to include everybody.” United States v. Kincade, 379 F.3d 813, 872 (9th Cir. 2004) (Kozinski, J., dissenting).

The second observation is that the opinions on this subject, and perhaps the litigants themselves, ignore a salient aspect of the government’s program. The government, that is the FBI, retains the actual blood sample taken from the subject indefinitely, even after analysis of its DNA. This is not necessary to “identification” of the individual, and it opens the door to serious abuse, since it gives the government possession not only of identification material, but of material that identifies a person’s race, health status, congenital defects, or the like. The government has no need justified by the Fourth Amendment to retain these samples.

Finally, the nature of this subject leads the Circuit into some odd, and apparently illogical, conclusions. The basic one, that collecting DNA to solve crimes is not a “normal” law-enforcement function, and rather serves only some “special” need, springs from the odd distinction between collecting a person’s DNA because he is suspected (without probable cause) of having committed a crime now, and collecting his DNA now to use in identifying him in the future if he commits a crime (or if he is later suspected of a crime he has already committed); the rationale that makes the former search impermissible but the latter proper is hardly clear. Similarly, it is odd how the court in Amerson makes a virtue of suspicionless searches, whereas one might have thought they were the least favored sort of search. Thus, the court finds that one reason that the DNA search fulfills a “special” need is that it “does not involve any suggestion that the individual is being suspected of having committed a crime.” Normally, we would have thought, this would be a good reason for not permitting the search, not grounds for allowing it.

In any event, we expect that the growing governmental thirst for private information about its citizens will lead to more litigation of this kind. That litigation will call upon the courts to provide sounder constitutional analysis, greater wisdom, and more courage than they have provided to date.

(By David Lewis)

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