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Monday, July 25, 2011

Courts - Is the collection of DNA samples from people arrested -- but not yet convicted of crimes -- constitutional? [Updated]

How Appealing has just posted a link to this story by Rich Lord of the Pittsburgh Post-Gazette, headed "U.S. Appeals Court: OK to check DNA of those arrested," that begins:

A closely divided 3rd U.S. Circuit Court of Appeals has found that the collection of DNA samples from people arrested -- but not yet convicted -- of crimes is constitutional, in an opinion released today.
The ILB took at quick look at today's opinion in US v. Mitchell for 7th Circuit references, and found this on pp. 32-33 of the 99-page opinion:
Prior to Congress‘s 2005 and 2006 expansions of the DNA Act, every circuit court to have considered the constitutionality of a DNA indexing statute upheld the statute under the Fourth Amendment. Nevertheless, the circuits have divided regarding the correct method of Fourth Amendment analysis. We and the majority of circuits—the First, Fourth, Fifth, Sixth, Eighth, Ninth, Eleventh, and District of Columbia—have endorsed a totality of the circumstances approach.[15]
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[15] Only the Second and Seventh Circuits have consistently held otherwise, employing the special needs exception in every case concerning the constitutionality of a DNA indexing statute. See Amerson, 483 F.3d at 78; Hook, 471 F.3d at 773; Green v. Berge, 354 F.3d 675, 677–78 (7th Cir. 2004). The Tenth Circuit has noted that its ―own precedents are divided, but it applied the totality of the circumstances test in its most recent case. Banks, 490 F.3d at 1183–84.
[Updated 7/26/11] Shannon P. Duffy of The Legal Intelligencer has a story today on yesterday's 3rd Circuit en banc decision, that begins:
Finding that DNA profiling samples are "fingerprints for the 21st century," a sharply divided federal appeals court has ruled that the government has the right to routinely collect DNA samples from anyone who is arrested for inclusion in a national database.

"DNA profiling is simply a more precise method of ascertaining identity and is thus akin to fingerprinting, which has long been accepted as part of routine booking procedures," U.S. Circuit Judge Julio M. Fuentes wrote in United States v. Mitchell .

On an 8-6 vote, the 3rd U.S. Circuit Court of Appeals en banc rejected a challenge to the constitutionality of the DNA Act of 2005 and reversed a lower court's decision that struck down the law.

"Because DNA profiles developed pursuant to the DNA Act function as 'genetic fingerprints' used only for identification purposes, arrestees and pretrial detainees have reduced privacy interests in the information derived from a DNA sample," Fuentes wrote for the majority.

The six dissenters, led by U.S. Circuit Judge Marjorie O. Rendell, complained that "collecting and analyzing DNA is much more intrusive than either fingerprinting or photographing."

Rendell said she believes the privacy rights of arrestees "are not so weak as to permit the government to intrude into their bodies and extract the highly sensitive information coded in their genes."

Posted by Marcia Oddi on July 25, 2011 04:11 PM
Posted to Courts in general