A “sharply divided” federal appeals court ruled that, since DNA samples are the “fingerprints of the 21st century”, the government has a right to collect these from all arrestees without a warrant, and to include them in a national database. The six dissenting judges indicated that collecting DNA samples amounted to a “severe intrusion of privacy”.
The 3rd U.S. Circuit Court of Appeals (based in Philadelphia) found that the Fourth Amendment—which guards against unlawful detention and unreasonable searches and seizures–is not violated in the taking of such sampling from those who enter the federal criminal justice system.
Earlier, a U.S. District judge had found otherwise, noting: “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.”
Specifically, the Fourth Amendment safeguards: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The database in question is the Combined DNA Index System (or CODIS).
In an 8-6 decision, the en banc (or full hearing by all judges) federal appeals court decision upheld the law authorizing the collection of DNA samples from all federal arrestees. (The decision can be read here in PDF file format.)
As per the majority opinion, “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.” The Christian Science Monitor quoted Circuit Judge Julio Fuentes as having written: “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.”
Interestingly, according to ‘Lectric Law Library, the gathering of free person’s fingerprint evidence during routine bookings—whether or not there is sufficient suspicion to warrant collection them—“constitutes a significant interference with individual expectations of privacy”. (It has been found, however, that “[t]aking fingerprints [prior to bail] is universally standard procedure, and no violation of constitutional rights.”
Thus, it has often been constitutionally significant whether fingerprints fall into the category of those collected in an attempt to solve a crime or those collected from persons under the custody of the state.
Other federal appeals courts have upheld the collecting of DNA evidence from defendants once they are convicted but only one, the San Francisco-based 9th U.S. Circuit Court of Appeals, has similarly agreed to the gathering of DNA samples from persons who have been arrested. Since then, that opinion has been withdrawn, in anticipation of an en banc review.
As to whether DNA sampling will reveal extremely private information such as “genetic conditions”, in this case, so-called “junk DNA’ testing is the type used. In this sort of sampling, very little besides the person’s identity is revealed.
To read more, go to the JD Journal here: http://bit.ly/ptSzs4
Graphic courtesy of JD Journal.