W.D. Pa.: Compulsory taking of DNA from pretrial detainee violates Fourth Amendment

Compulsory taking of DNA from a pretrial detainee under 42 U.S.C. § 14135a violates the Fourth Amendment. It cannot be supported under special needs, totality of the circumstances, or a compelling governmental interest. United States v. Mitchell, 681 F. Supp. 2d 597 (W.D. Pa. 2009):

A DNA profile generates investigatory evidence that is primarily used by law enforcement officials for general law enforcement purposes. To allow such suspicionless searches, which are conducted in almost all instances with law enforcement involvement, to occur absent traditional warrant and probable cause requirements will intolerably diminish our protection from unreasonable intrusion afforded by the Search and Seizure Clause of the Fourth Amendment. The Court, therefore, finds that the “special needs” exception to the warrant and probable cause requirements of the Fourth Amendment is inapplicable here.

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The Government also argues that the degree of intrusion affecting Mitchell’s privacy interest is minimal. The Third Circuit, in Sczubelek, specifically found that “the intrusion of a blood test is minimal.” United States v. Sczubelek, 402 F.3d at 184 (citing Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. at 625) 8. The taking of a buccal swab, then, certainly can not be any more intrusive. The Third Circuit, however, also stated that “this slight intrusion into an ordinary citizen’s privacy is unconstitutional.” Id. Though Mitchell may not be considered an “ordinary citizen” based upon his restricted liberty as a pretrial detainee, this Court has found that he maintains a high expectation of privacy in the comprehensive, inherently private information contained in his DNA sample. Therefore, even though the taking of a sample may not be unreasonably intrusive, the search of the sample is quite intrusive, severely affecting Mitchell’s expectation of privacy in his most intimate matters.

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In assessing the totality of the circumstances and weighing the legitimate governmental interests against Mitchell’s expectation of privacy in the genetic information contained in his DNA sample, the Court finds that a universal requirement that a charged defendant submit a DNA sample for analysis and inclusion in a law enforcement databank for criminal law enforcement and /or identification purposes is unreasonable under, and therefore in violation of, the Fourth Amendment to the United States Constitution.

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Based upon the foregoing, this Court finds that 42 U.S.C. § 14135a, and its accompanying regulations, requiring a charged defendant to submit a DNA sample for analysis and inclusion in CODIS without independent suspicion or a warrant unreasonably intrudes on such defendant’s expectation of privacy and is invalid under the Fourth Amendment to the United States Constitution. An appropriate order follows.

Pittsburgh Post Gazette here; Pittsburgh Live here.