W.D.N.Y.: Federal pre-conviction DNA testing regulation does not violate the Fourth Amendment

Federal pre-conviction DNA testing regulation does not violate the Fourth Amendment. [Seems like the USMJ doesn’t really like the outcome. Quoting another case: “This is a vexing case. The DNA profiling system at issue promises enormous potential as an investigatory tool, but its expansion or misuse poses a very real threat to our privacy. … [B]ut we must draw lines as best we can … [and are sometimes compelled to] leav[e] for another day difficult questions.”] United States v. Thomas, 2011 U.S. Dist. LEXIS 45333 (W.D. N.Y. February 14, 2011):

B.Application of the Special Needs Test

1. The Act Serves a Special Need: The first requirement of the special needs test is that the search and seizure be justified by a special need beyond the ordinary needs of normal law enforcement. Amerson, 483 F.3d at 80 (citing Griffin, 483 U.S. at 873). A “general interest in crime control” does not qualify as a special need. City of Indianapolis v. Edmond, 531 U.S. at 41-42. If crime control is one purpose of a programmatic search, however, “the program may nevertheless be reasonable under the special needs doctrine so long as crime control is not the program’s primary purpose.” Lynch v. City of New York, 589 F.3d 94, 102 (2d Cir. 2009), cert. denied, 131 S. Ct. 415, 178 L. Ed. 2d 344 (2010) (emphasis in original). “[T]he appropriate inquiry … [is] whether the search ‘serves as its immediate purpose an objective distinct from the ordinary evidence gathering associated with crime investigation.’” Amerson, 483 F.3d at 81 (quoting Nicholas v. Goord, 430 F.3d at 663).

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2. Nature of Privacy Interest and Degree of Governmental Intrusion:

Although the particular issue presented by this case appears to be one of first impression in this Circuit, the Second Circuit already has addressed the nature of the privacy interest involved in and the degree of government intrusion implicated by the collection of DNA samples by persons under probation supervision. Amerson, 483 F.3d at 83-87. While any analysis of privacy interests is “highly context specific,” id. at 87, much of the court’s reasoning and conclusions in Amerson nonetheless apply in the context presented by this case — the collection of DNA samples by indicted, rather than convicted persons. Indeed, for the reasons explained more fully below, I believe that Amerson’s holding and its underpinnings logically dictate the result in this case.

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The second and “potentially much more serious invasion of privacy” is the “analysis and maintenance of [DNA] information” in CODIS. Id. at 85. According to the Second Circuit, this intrusion is “significant” considering the “vast amount of sensitive information that can be mined from a person’s DNA and the very strong privacy interests that all individuals have in this information.” Id. (emphasis added) (citing United States v. Kincade, 379 F.3d at 843 (Reinhardt, J., dissenting) (discussing concerns about the “profound social effects” of “allowing the government to collect and maintain private information about the intimate details of our lives”)). Despite concerns over the value of DNA information, the court determined that the statutes’s safeguards adequately “minimized” the privacy invasion occasioned by the DNA indexing. First, the court observed that the CODIS database stores only “junk DNA” sequences that are not “currently associated with any known physical or medical characteristics,” but rather “establish[] only a record of the [person’s] identity.” Id. Second, the court noted that the Act “severely limits” the purposes for which the samples can be used and imposes penalties for any misuse. Id. Finally, the court emphasized that the record contained no evidence of “misuse of the DNA samples” by the government or “scientific advances concerning the information that can be mined from the DNA footprint stored on the CODIS database.” Id. at 87. If it did, the court cautioned, “our analysis and ultimate conclusions might very well be different.” Id.

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While the determination in Amerson that the privacy intrusion was “quite small” explicitly rested on the appellants’ “status as probationers,” 483 F.3d at 87, Thomas’s status as an indicted person should not alter that conclusion, in my estimation. After all, “when a suspect is arrested upon probable cause, his identification becomes a matter of legitimate state interest and he can hardly claim privacy in it.” Jones v. Murray, 962 F.2d 302, 306 (4th Cir. 1992). Accord Boling v. Romer, 101 F.3d 1336, 1339-40 (10th Cir. 1996). See also Pool, 621 F.3d at 1220 (“it is doubtful that … any … individual having been indicted by a grand jury or having been subjected to a judicial determination of probable cause, has any right to withhold his or her true identification from the government”). Accordingly, I must conclude that the intrusion occasioned by DNA sample collection for indicted persons is also “quite small.”

3. The Government’s Interest: The Second Circuit has determined that “the government has a compelling interest in rapidly and accurately solving crimes and … having DNA-based records of the identity of as many people as possible … effectuates this interest.” Amerson, 483 F.3d at 87. Thus, the court in Amerson held that the “very broad societal interest” in having the “capacity to identify or exclude individuals, quickly, accurately, and at reasonable expense” outweighed the “relatively small” invasion of a probationer’s privacy. …