DNA Collection and the Fourth Amendment

By Ronald W. Brown Esq. and Geraldine Reed Brown Esq. – January 5, 2012

Imagine that you and your spouse have been taken into custody by a police officer. The two of you had only been taken into custody one other time when you were arrested, photographed, and fingerprinted in the 1960s for participating in a civil rights demonstration. That is also where the two of you first met. The police officer informs you that she is required to take—and you are required to give—a DNA sample. You strenuously object to giving a sample, but your spouse has no objection. You argue that the police officer has no right to take such a sample, and even if she did, you are concerned about how the sample could be misused. You also raise issues of informed consent and privacy and take the position that requiring a DNA sample is inconsistent with the presumption of innocence. Since no penological interest, such as security, is at stake, you refuse to give a DNA sample—regardless of whether the police officer wants to take it by a swab from the inside of your mouth or by pricking your finger—without the officer getting a warrant based on probable cause. Your spouse argues that the police officer has a right to take a DNA sample and that cooperation, by giving a sample, furthers the ends of justice. Your spouse further argues that since you are both innocent, you will be able to get the DNA samples expunged if no charge is filed, the charge is dismissed, or you are acquitted. The police officer informs you that a DNA sample will be collected regardless of whether you cooperate.

Just like the preceding scenario, opponents of collecting DNA samples from arrestees point out the possibilities of harmful misuses of DNA while proponents point out the potentially beneficial uses to the criminal justice system. DNA use and misuse has been debated in legislatures and is the subject of books, such as Rebecca Skloots’s “The Immortal Life of Henrietta Lacks” (New York: Crown Publishers, 2010) and Ira Levin’s “The Boys from Brazil” (New York, Random House, 1978), and the focus of films, such as Gattaca (1997, Columbia Pictures).

DNA testing has also impacted professional sports, such as the National Basketball Association (NBA) and major league baseball (MLB). Six years ago, it was widely reported in the sports news and general press that the Chicago Bulls of the NBA traded Eddy Curry to the New York Knicks after Curry declined to take a DNA test to determine if his irregular heartbeat was just a benign arrhythmia or was hypertrophic cardiomyopathy, a heart condition that caused the on-court death of the Boston Celtic’s guard Reggie Lewis and Loyola Marymount’s Hank Gathers. More recently, in July 2009, MLB reportedly used DNA testing to determine if Miguel Sano, a prospect from the Dominican Republic, was really 16 years old. MLB said that testing in the Dominican Republic is used “in very rare instances and only on a consensual basis to deal with the identity fraud problem that the league faces in that country.” MLB added that the results of the tests were not used for any other purpose. Also in July 2009, the New York Yankees were reported to have voided the contract of an amateur from the Dominican Republic after a DNA test conducted by MLB’s Department of Investigations showed that the player had misrepresented his identity.

Fourth Amendment Analysis: Arrested versus Convicted Persons
Should an arrestee be treated differently than a convicted person? The district court answered yes to this question. On appeal, the majority of the third circuit answered no.

Relying on 42 U.S.C. §14135a (a)(1)(A), the government sought to collect a DNA sample from Ruben Mitchell after he was indicted, arrested, and detained. Ruben argued that taking a DNA sample would violate his Fourth Amendment right against unreasonable search and seizure. The district court agreed with Ruben, finding that the statute violated the fourth amendment because it permitted the “warrantless collection of DNA from individuals who have not been convicted of a crime” and prohibited collecting a sample from Ruben “until such time as he had been convicted of the offense set forth in the indictment.” Id. at 5, 7.

In an 8–6 decision, the Third Circuit Court of Appeals reversed the district court. In doing so, the majority cited, in part, regulations promulgated by the attorney general, mandating that “any agency of the United States that arrests or detains individuals or supervises individuals facing charges shall collect DNA samples from individuals who are arrested, facing charges, or convicted.” 42 U.S.C. §28.12(b). The majority also noted that DNA test results are restricted to the purposes specified in the Crime Control Act. Those purposes limit disclosure “to criminal justice agencies for law enforcement identification purposes”; “in judicial proceedings if otherwise admissible”; and “for criminal defense purposes, to a defendant, who shall have access to samples or analyses performed in connection with the case in which the defendant is charged.” The Crime Control Act also requires expunging a DNA record from the Combined DNA Index System (CODIS) database “when a conviction is overturned or when, if the sample is taken following an arrest, the charge is dismissed or results in an acquittal or no charge is timely filed.” Section 14132(d)(1)(A).

With respect to collected DNA samples, the majority noted that a fine of up to $250,000 or imprisonment for up to one year may be imposed on “any person who knowingly discloses a sample or result . . . in any manner to any person not authorized to receive it, or obtains or uses without authorization, such sample or result, and that each unlawful disclosure is punishable as a separate offense.” The majority also noted two important government policies. The first policy is that the DNA database, CODIS, does not contain the “names or other personal identifiers of the offenders, arrestees or detainees.” The database only contains:

The second policy is that the government uses “only junk DNA . . . [which is] non-genic stretches of DNA not presently recognized as being responsible for trait coding. By using only so-called ‘junk DNA’ to create the profile, the Government ensures that meaningful personal genetic information about the individual is not published in CODIS.” Id. at 15. Finally, the majority found that “DNA collection furthers the Government’s interest in accurately identifying arrestees and pretrial detainees, an interest that would be lost if the Government waited until conviction to take a DNA sample.”

The majority applied a “totality of the circumstances test” that balanced the government’s interest in collecting and testing the DNA of an arrestee, against Ruben’s expectation of privacy. The totality of the circumstances test entails two steps. The first step begins “by assessing . . . the degree to which [the search] intrudes upon an individual’s privacy.” Id. at 16. The second step is to “assess the degree to which [the search] is needed for promotion of legitimate governmental interests.” The totality of the circumstances test has also been endorsed by the first, fourth, fifth, sixth, eighth, ninth, and eleventh circuits and by the District of Columbia. Id. at 16–17. With respect to DNA samples from arrestees and pretrial detainees, the majority noted that

Id. at 23.

Orwellian DNA Dragnets
Because only so-called junk DNA is collected, the majority did not see any Orwellian dangers and likened DNA collection into the CODIS database to fingerprinting and photographs.

Id. at 21.

U.S. Circuit Judge Marjorie Rendell, joined by five other dissenting judges, took the position that “the Government’s program of warrantless, suspicionless DNA collection from arrestees and pretrial detainees [was] fundamentally incompatible with the Fourth Amendment” and that the “factors on both sides of the totality-of-the-circumstances equation are different for arrestees and pretrial detainees than for convicted felons: arrestees’ and pretrial detainees’ expectation of privacy in their DNA is greater, and the Government’s interests in accessing and analyzing that DNA are much less compelling.” Id., dissent at 27, 30. Further, the dissent argued that the majority premised

Id., dissent at 30–31.

Looking Forward and Going Back
A key principle in Fourth Amendment search and seizure cases is “the balancing of competing interests.” Id. at 14, citing Tennessee v. Garner, 471 U.S. 1, 8 (1985) and Bell v. Wolfish, 441 U.S. 520, 559–60 (1979) (“upholding the constitutionality of strip searches of pretrial detainees under a totality of the circumstances balancing approach”). Looking forward with respect to DNA collection from arrestees, the correct balance may only be ultimately struck when the Supreme Court gives guidance and addresses the questions that split the third circuit in Mitchell, and that were foreseen by attorney Anna C. Henning in her Congressional Research Service Report.

Outcomes in future cases involving arrestees may depend on courts’ resolution of at least two key issues, namely, (1) what, if any, distinction exists between the reasonable expectation of privacy of an arrestee and a convict; and (2) the degree of privacy intrusion perceived as a result of a DNA sample. The latter question may turn on courts’ framing of the role of DNA collection—i.e., whether it is analogous to the long-upheld practice of fingerprinting or whether it represents a greater privacy intrusion.

Congressional Research Service, “Compulsory DNA Collection: A Fourth Amendment Analysis,” February 16, 2010, at 2.

We conclude by going back to you, your spouse, and the police officer. If the police officer is with “any agency of the United States that arrests or detains” you, and you are in federal custody, the attorney general’s regulations state that that agency “shall collect DNA samples from individuals who are arrested.” Id. at 16.

Your DNA sample can be collected if you are a certain class of arrestee and you are taken into custody in Alabama, Alaska, Arizona, Arkansas, California, Colorado, Florida, Kansas, Louisiana, Maryland, Michigan, Minnesota, Missouri, New Jersey, New Mexico, North Dakota, South Carolina, South Dakota, Tennessee, Texas, Vermont, or Virginia. See National Conference of State Legislatures, “State Laws on DNA Databanks, Qualifying Offenses, Others Who Must Provide Sample,” February 2010.

Your DNA sample can be collected without your consent or cooperation. Mitchell at 14.

Your spouse was only partially correct with respect to expungement. See Congressional Research Service, “Compulsory DNA Collection: A Fourth Amendment Analysis,” February 16, 2010, at 5.

Even if your DNA profiles are expunged from CODIS, the “Government will retain [your] DNA sample indefinitely.” Mitchell, dissent at 29. “Under the majority’s holding, the arrestee has no way to protest or to prevent the Government from taking his DNA; his only recourse is to wait and later provide the Government with a ‘certified copy of a final court order’ establishing that ‘the charges against him have been dismissed or [have] resulted in acquittal’ or that ‘no charge has been filed within the applicable time period.’”

Keywords: Fourth Amendment, arrestee, Combined DNA Index System, Congressional Research Service, expectation of privacy, Genetic Information Nondiscrimination Act, search and seizure, state laws on DNA databanks, Violent Crime Control and Law Enforcement Act

Ronald W. Brown Esq. is president and CEO of Ronald W. Brown & Associates, LLC. Geraldine Reed Brown Esq. is an attorney, a mediator, and president and CEO of The Reed-Brown Consulting Group.

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