Federal court: If you're arrested, officials can take a DNA sample

A federal appeals court ruled on Monday that forcing criminal suspects to provide a DNA sample upon arrest – and prior to any conviction – does not violate constitutional protections against unreasonable searches and seizures.

The Third US Circuit Court of Appeals ruled 8 to 6 that a federal statute authorizing the warrantless collection of DNA samples from every person entering the federal criminal justice system was “reasonable and does not violate the Fourth Amendment.”

“Given the record in front of us today, we conclude that a DNA profile is used solely as an accurate, unique, identifying marker – in other words, as fingerprints for the 21st century,” wrote Circuit Judge Julio Fuentes in the majority opinion.

The six dissenting judges said forcing arrested suspects to surrender a DNA sample to the government is a “severe” intrusion of privacy.

“The government’s program of warrantless, suspicionless DNA collection from arrestees and pretrial detainees is fundamentally incompatible with the Fourth Amendment,” wrote Judge Marjorie Rendell in dissent.

The action by the Philadelphia-based appeals court overturns a US district judge’s decision, finding the statute and accompanying regulations were unreasonably intrusive of a criminal suspect’s privacy. “The extraction of DNA is much more than a mere progression [from] taking fingerprints and photographs,” District Judge David Cercone wrote in his decision. “It represents a quantum leap that is entirely unnecessary for identification purposes.”

Since 1994, the Federal Bureau of Investigation has been collecting DNA samples and organizing them into a national database called the Combined DNA Index System (CODIS). The FBI system is designed to allow state and local forensic laboratories to exchange DNA profiles and compare DNA found at crime scenes with DNA samples of convicted offenders on file in the CODIS system.

Collection of DNA samples from convicted felons has been upheld as constitutional by every federal appeals court to consider the issue. So far, nine appeals courts have upheld the practice when applied to convicted offenders.

In 2006, Congress expanded the DNA profile law to authorize the collection of DNA samples from arrestees and pretrial detainees. The question before the Third Circuit was whether an arrested suspect or pretrial detainee enjoys a higher expectation of privacy than a convicted criminal for purposes of DNA collection and inclusion in the government’s national DNA database.

The case was brought on behalf of Ruben Mitchell, who was indicted for his alleged involvement in a cocaine-distribution scheme. At his initial appearance in court after his arrest, prosecutors sought a DNA sample. He objected, arguing that it would violate his right to privacy.

Judge Cercone agreed. The government appealed.

The majority judges on the Third Circuit noted that DNA profiles recorded in the CODIS system rely on only a very small portion of the DNA sample. This is done to restrict use of the DNA solely for law enforcement identification purposes – rather than as an Orwellian tool that might potentially explore an individual’s genetic road map.

Given such safeguards, the majority judges said, obtaining DNA samples upon arrest is not significantly more intrusive to an individual’s privacy than standard police booking procedures like fingerprinting and taking mug shots.

“Suspicionless fingerprinting of all citizens would violate the Fourth Amendment,” Judge Fuentes wrote. “Nevertheless, it is 'elementary' that blanket fingerprinting of individuals who have been lawfully arrested or charged with a crime does not run afoul of the Fourth Amendment.”

Fuentes added: “At present 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.”

Judge Rendell disagreed. Fingerprinting and photographing record characteristics outside the body. DNA sampling peers into the body to discover something otherwise unseen and unknowable, she said.

“The privacy interests of arrestees, while diminished in certain, very circumscribed situations, are not so weak as to permit the government to intrude into their bodies and extract the highly sensitive information coded in their genes,” Rendell wrote.

She said the government’s primary objective in obtaining DNA for its database was not to identify suspects but to solve crimes – including potentially the crime for which the suspect was arrested.

She noted that the DNA sample could provide substantial intimate information about the suspect, including family lineage and predisposition to more than 4,000 types of genetic conditions and diseases. The sample might potentially reveal genetic markers for traits including aggression, sexual orientation, substance addiction, and criminal tendencies, she said.

Rendell said the majority judges dismissed suggestions of possible misuse of DNA samples by the government as conjecture. But the dissenting judge said her colleagues in the majority missed the point.

“The majority’s focus on the government’s use of the DNA [for identification] as the controlling privacy consideration is simply misguided,” she wrote. “It is akin to saying that if the government seizes personal medical information about you but can only use the subset of that information that serves to identify you, your privacy interest in the information taken is confined to a mere interest in your identity.”

“Nothing could be further from the truth, and the majority engages in sleight of hand by suggesting otherwise,” she said.

The next step for the case, if appealed, would be the Supreme Court. But it's unclear whether the court would agree to hear the case.

The case is US v. Mitchell (09-4718).