D.S.D.: 4A permits taking DNA on booking from misdemeanor defendants

Defendant, a sovereign citizen, indicted for willful failure to file tax returns, when booked by the U.S. Marshal refused to be fingerprinted, photographed, or have a DNA sample taken because they were “copyrighted.” He relented as to fingerprinting and photographing but not DNA. While defendant was pro se, the court asked for briefs. The court applies the Fourth Amendment and not copyright law. In a searching and comprehensive opinion, the court notes, that Maryland v. King is not limited in its language to serious crimes, and noting Scalia’s dissent. The rationale for DNA testing in the statutes and case law applies equally to misdemeanors and felonies. Other courts (see, e.g., People v. Lancaster, 373 P.3d 655 (Colo. App. 2015)) agree. The court urges an appeal and stays the taking of the sample pending appeal. United States v. Buller, 2018 U.S. Dist. LEXIS 2202 (D.S.D. Jan. 5, 2018):

This court tends to agree with Justice Scalia that the primary purpose of the DNA collection statute is criminal investigation. As such, this court also agrees that the Fourth Amendment should require a warrant or some level of suspicion before the search of one’s DNA is allowed. However, until the King decision is modified or repudiated, it remains the law of the land and this court is bound to apply it. Because the analysis under King and the rationale for the conclusion in King cannot be meaningfully distinguished in the case of a misdemeanor arrestee, and because there is no federal law decided in the five years since the King decision was issued making such a distinction, the court concludes that the collection of DNA from Mr. Buller is constitutional under the Fourth Amendment.