Law Enforcement Collection of DNA

By Ethan Ackerman

Recent legislative activity in the US Senate has brought some press attention to the touchy issue of DNA collection by law enforcement. Similar proposed and passed DNA legislation at the state and federal levels over the last several years has also drawn court challenges. As a result, a fair number of court opinions on the subject exist – enough to allow a quick look at the legal contours and legislative status of DNA collection laws.

A quick background

Most every US state and territory has some sort of legislation regarding law enforcement collection of DNA from convicted criminals of one type or another. These laws, passed primarily to assist in identifying potential perpetrators of other, unsolved crimes, vary significantly from state to state. A comprehensive comparison can be found at DNAresource.com, which catalogs legislative information such as types of qualifying crimes, records purging procedures, applicability to probationers, etc. Despite the variability, almost every state shares at least some DNA information with a national, FBI-administered DNA database called CODIS.

Constitutional interests- Privacy and self-incrimination

The non-voluntary extraction of DNA from blood or tissue samples of a suspect or convict plausibly touches on 4th & 5th Amendment rights to be free of searches and self-incrimination, respectively. So how does the jurisprudence currently stand?

The 5th Amendment – not so applicable after all

DNA has quite a bit of evidentiary value, as a match or a dissimilarity with a suspect’s DNA can tell whether there is a highly probable connection, or definitive non-match, to some other piece of evidence. The main 5th Amendment argument asserted against collection is that compelled production of such potentially damning, and highly personal, evidence amounts to a compelled ‘testimony’ against one’s self.

This 5th Amendment interest has been rather definitively addressed, and it doesn’t amount to much, according to the Supreme Court. More specifically, blood or tissue samples that may tend to show innocence or guilt (say, by matching blood at the scene or having more than the legal limit of alcohol in the blood) can be forcibly (so log as also humanely) collected, and doing so won’t violate the 5th Amendment, according to the Supreme Court. In a case that obviously matters a lot to DUI attorneys, Schember v. California, the Supreme Court reiterated that the 5th Amendment protects against compelled testimony primarily in the spoken word sense. Blood tests weren’t compelled “testimony,” even if they were “compelled” in the sense that they were forcible, over protests. DNA seems to tell much more about a person than blood alcohol level, but while that may gather DNA more privacy protections, it doesn’t seem to matter for 5th Amendment purposes, which are concerned mainly with whether spoken “testimony” is compelled.

The 4th Amendment – it applies, but the devil is in the details

The 4th Amendment protects against unreasonable searches and seizures, and most every case challenging a DNA collection has recognized that such compelled collection is a search or seizure. With almost equal uniformity, though, courts have found such a search – at least as applied to convicts or probationers/parolees – not unreasonable. A comprehensive and fairly recent report on these cases by the American Society of Law, Medicine & Ethics catalogs the legal theories in each case. Included in the report is a discussion of the 9th Circuit’s 2004 en banc decision in US v. Kincade, discussed more below. While several federal circuit courts have addressed DNA collection laws, the 9th Circuit in Kincade is the only court to find one unconstitutional. Kincade’s unconstitutionality ruling was only temporary, as the en banc court reversed the panel decision and barely found the federal DNA statute constitutional, in a 6-5 split. Because it is the only circuit decision to find a 4th Amendment failing in the federal statute, because the ultimate decision was en banc rather than just a panel (making it a close to a Supreme Court decision as anything out there,) and because the split was so close, Kincade is worth focusing on in more detail.

US v. Kincade

A 9th Circuit Court of Appeals panel found, 2-1, that the mandatory collection of DNA as a term of parole violated Thomas Kincade’s 4th Amendment rights, a decision the en banc 9th Circuit reversed. Details and analysis can be found on findlaw, the informative EPIC page on the Kincade cases, or the actual en banc 9th circuit opinion.

It is worth noting reading at least one of the summaries, but the meat of the opinion is this: a 6-5 majority upheld the collection only because of the diminished privacy expectations probationers/parolees have, a distinction discussed more in the conclusion, below.

Legislative status

Criminal DNA collection laws can generally be classified into three ‘waves,’ with the third wave just starting to be proposed and pass in states and Congress. In the first wave, states passed laws mandating collection of DNA from violent or sexual offense criminals, and the creation and sharing DNA databases. At the federal level, this included a nationwide database, administered by the FBI, called CODIS. The ‘second’ wave was somewhat reactionary: in response to the perceived slanting of the technology and resources towards prosecution, legislation was passed mandating sharing of DNA information and samples with the accused, requiring timely analysis and providing funding to reduce backlogs, and making evidence available to the already convicted to assist in post-conviction claims of innocence. Such legislation is perhaps best exemplified by the Innocence Protection Act at the federal level. The “third’ wave of DNA legislation has focused on extending the collection pool to arrestees, not just those tried and convicted of a crime, with the goal of making DNA collection much like fingerprinting.

California’s prop. 69 and Senator Kyl’s DNA Fingerprinting Act of 2005 are examples of recent ‘third’ wave legislation, though some states, such as Virginia, have gone beyond legislation and have already enacted laws.

Because it is the federal version of similar state ‘third’ wave legislation, and it expands the federal database and funding to arrestees, the DNA Fingerprinting Act of 2005 is worth a quick peek.

The DNA Fingerprinting Act of 2005

The DNA Fingerprinting Act of 2005 (S.1606) would, according to its author, Sen. John Kyl of Arizona, now allow DNA from state arrestees (not just convicts) to be included in CODIS, expand federal funding to state DNA collection programs for arrestees (not just convicts), and allow DNA collection from federal arrestees and detainees (not just convicts). Similar bills have passed the House of Representatives in the past, and, although it has opposed ‘second wave’ bills that arguably level access to DNA evidence, the current Administration apparently supports Sen. Kyl’s bill.

Senate politics and bill passage

In addition to the expansion of state DNA collection powers, the Kyl bill allows anyone who is “arrested or detained under the authority of the United States” to DNA tested, not just convicted felons. This federal expansion, while nowhere near as big an expansion as allowing each state to expand collection, is likely to be the most contentious. Why? Immigration. The Kyl bill allows compulsory testing of any detained immigrants. While many may think of “detained” immigrants as just those caught at illegal border-crossing attempts, but, thanks to federal immigration law, even visiting foreign scholars in the visa application system may be considered detained at some points in processing. The immigration angle seems to be the first thing opponents (LEAHY cite) criticized, and depending on which version of the Kyl press release/editorial one looks at, the home-state-targeted one or the one on the Senator’s senate webpage, illegal immigrants either are or are not mentioned as the target of the bill.

The Kyl bill’s recent press has been primarily focused on its recent passage out of the Senate Judiciary Committee, and important procedural step on the path to enacted law. The bill was offered, over objections, as an amendment to S.1197, the reauthorization of VAWA, the Violence Against Women Act, itself a politically charged bill.

Some thoughts in conclusion

To some degree, legislators zealous expansion of criminal DNA collection flies in the face of oft-professed concern over personal privacy. The US Senate unanimously passed a genetic information privacy bill, extolling the sanctity of genetic information protection and warning against indiscriminate collection and discrimination. Yet at least some of these legislators are proposing to authorize large-scale collections of the same information in the name of crime fighting.

Bad drafting?

Aside from the constitutional concerns discussed below and immigration issues that make it a political hot potato, Sen. Kyl’s bill also seems to be weak in how broadly it sweeps in permissible DNA collection. Far from expanding DNA collection to “just” the arrestees and detainees focused on above, the language of the bill technically allows states almost carte blanche to include DNA from any source. A state could pass a law allowing collection, not just for convicted offenses or at arrest, but at any reason – i.e. as a condition of getting a drivers license! The only limiting language for state collection grants in the bill is: states can only add DNA collected pursuant to “applicable legal authority” – which means, roughly, anything the state passes a law for.

Final Constitutional thoughts

So how would a bill such as the DNA Fingerprint Act of 2005 fare if it were passed into law? Arizona Senator Kyl is from the 9th Circuit, so lets look there. From Kincade, we already know that DNA testing turns heavily on the incarcerated/probationary status of the unwilling donor. Another 9th Circuit case, US v. Scott, held that pre-conviction arrestees can’t be compelled to submit to drug testing as a condition of bail. This seems like the same population (the ‘arrestees and detainees’ described in the DNA Fingerprint Act) in the same circumstances (facing compelled tissue sampling) with the same 4th Amendment concerns. At least under 9th Circuit case law, it looks like the Kyl bill, and any similar California propositions, wouldn’t hold up to a 4th Amendment challenge.

A contrary conclusion?

But wait a minute, aren’t searches of a person incident to a lawfully executed arrest ok for 4th Amendment purposes? All these current DNA cases are about parolees or convicts, and are well after an arrest, in effect a new search. Why not routine DNA testing of an arrestee during booking, just like fingerprinting, which doesn’t violate the 4th Amendment?

Even here, the Kyl bill doesn’t limit collections to lawful arrestees, but rather speaks also of those (such as immigrants, or presumably also Guantanamo captives, or as-of-yet-unarrested suspects) who are “detained.” The fingerprinting of those ‘detained but not (or not yet) arrested’ does present a 4th Amendment-violating seizure according to the US Supreme Court. Presumably the same logic would apply to DNA collection.

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