E.D.Cal.: DNA sampling after indictment is constitutional under “special needs”

DNA sampling after indictment under federal regulations [adopted under 42 U.S.C. § 14135a, 28 CFR Part 28, 73 FR 74932] is constitutional under the “special needs” exception. The court analyzed the DNA testing on conviction cases and concluded that “special needs” exception was appropriate here. (While this issue is being litigated all over, this is the first to come across Lexis, and it was decided two months ago, so there likely are others.) United States v. Pool, 645 F. Supp. 2d 903 (E.D. Cal. 2009):

Defendant argues that the situation here involving non-convicted, but charged defendants is different. Therefore, the court must use the “special needs” test because unlike the Kincade line of cases, defendant has not been convicted and has a presumption of innocence. Defendant’s Brief at 15. Defendant also contends that a general law enforcement need to take his DNA sample, the only reason that can apply here according to defendant, will not qualify as a “special need.” As a result, defendant concludes the sampling is unconstitutional. Defendant’s Brief at 15. Defendant points to the Supreme Court cases of Ferguson v. City of Charleston, 532 U.S. 67, 121 S.Ct. 1281, 149 L. Ed. 2d 205 (2001) and City of Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447, 148 L. Ed. 2d 333 (2000). In Ferguson, the Supreme Court held that the use of a hospital’s diagnostic test to obtain evidence of drug use of pregnant patients for law enforcement purposes was an unconstitutional search. In Edmond, the Supreme Court struck down a vehicle checkpoint where the primary purpose was to detect evidence of ordinary criminal wrongdoing, the trafficking of illegal drugs.

Defendant’s argument fails. The programs in Ferguson and Edmond are distinguishable from the instant case. Those cases involved the search and seizure of motorists on a particular road or patients being admitted to a hospital. Importantly, there had been no judicial involvement in finding that each specific person to be tested had been involved in criminal wrongdoing. Rather, the government was simply fishing for substantive evidence with which to then go to a judge or otherwise commence criminal proceedings. As such, neither the motorists nor the patients could be compelled to give substantive evidence absent special needs beyond the mere general need to enforce the criminal laws.fn4 The instant case is worlds apart from that in the above two cited cases — defendant is subject to DNA testing after a judicial finding or grand jury determination of probable cause.

4. Suspicionless searches have been upheld where designed to serve “special needs, beyond the normal need for law enforcement.” See, e.g., Vernonia School Dist. 47J v. Acton, 515 U.S. 646, 115 S.Ct. 2386, 132 L. Ed. 2d 564 (1995) (random drug testing of student-athletes); Treasury Employees v. Von Raab, 489 U.S. 656, 109 S.Ct. 1384, 103 L. Ed. 2d 685 (1989) (drug tests for United States Customs Service employees seeking transfer or promotion to certain positions); Skinner v. Railway Labor Executives’ Assn., 489 U.S. 602, 109 S. Ct. 1402, 103 L. Ed. 2d 639 (1989) (drug and alcohol tests for railway employees involved in train accidents or found to be in violation of particular safety regulations).

The judicial or grand jury finding of probable cause within a criminal proceeding is a watershed event which should be viewed differently from mere pre-judicial involvement gathering of evidence. After such a judicial finding, a defendant’s liberty may be greatly restricted — even denied. As part of his pre-trial release, defendant may be deprived of his very liberty; he can be subject to electronic monitoring; he may be ordered to obey a mandatory curfew. Also, the court can order a defendant to refrain from traveling outside of the Eastern District of California without prior approval, not to possess a firearm and that he must reside at a location that is reviewed and approved by the Pretrial Services Officer. In a pornography case he can be directed to not have any communications with a minor without the child’s parent or guardian being present, cannot be found within 100 feet of a schoolyard, park, playground or other place frequented by children, cannot access the internet or possess a computer at his residence without prior approval. These conditions are almost identical to those conditions which can be imposed on a probationer or parolee for whom a DNA testing requirement has been found appropriate under a totality of the circumstances standard. The court finds that an up-front requirement for finding probable cause that the defendant has committed the charged felony places the issue much more closely with those cases utilizing a totality of the circumstances standard.