CA3: Taking DNA on arrest does not violate the Fourth Amendment

The Third Circuit holds en banc (8-6-1) that post arrest, pre-conviction DNA testing is reasonable under the Fourth Amendment, just like fingerprinting to identify the defendant. United States v. Mitchell, 652 F.3d 387 (3d Cir. 2011) (en banc):

Ruben Mitchell was indicted on one count of attempted possession with intent to distribute cocaine. Following Mitchell‘s indictment, arrest, and detention, the Government sought to collect a DNA sample. The Government relied on 42 U.S.C. § 14135a(a)(1)(A), which permits the collection of DNA samples from individuals who are arrested, facing charges, or convicted. Mitchell objected, arguing that the statute violated the Fourth Amendment. Agreeing with Mitchell, the District Court concluded that the statute was unconstitutional and prohibited the Government from taking a DNA sample from Mitchell prior to conviction.

As a threshold matter, we address whether we possess appellate jurisdiction over this interlocutory appeal by the Government. We conclude that this appeal falls within the narrow class of orders immediately appealable under the collateral order doctrine enunciated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (1949). Turning to the merits, we apply a totality of the circumstances test, balancing the intrusion on Mitchell‘s privacy against the Government‘s interest in the collection and testing of his DNA. United States v. Knights, 534 U.S. 112, 118–19 (2001). As arrestees have a diminished expectation of privacy in their identities, and DNA collection from arrestees serves important law enforcement interests, we conclude that such collection is reasonable and does not violate the Fourth Amendment. Accordingly, we will reverse.

. . .

This logic [of collecting fingerprints] extends to the collection and analysis of DNA samples from arrestees and pretrial detainees. See Anderson v. Virginia, 650 S.E.2d 702, 705 (Va. 2007) (“A DNA sample of the accused taken upon arrest, while more revealing, is no different in character than acquiring fingerprints upon arrest.”). DNA collection occurs only after it has been determined that there is probable cause to believe that the arrestee committed a crime. In light of this probable cause finding, arrestees possess a diminished expectation of privacy in their own identity, which has traditionally justified taking their fingerprints and photographs.Likewise, because DNA profiles developed pursuant to the DNA Act function as genetic fingerprints. used only for identification purposes, arrestees and pretrial detainees have reduced privacy interests in the information derived from a DNA sample.

. . .

In light of the restrictions built into the DNA profiling process, Mitchell‘s arguments that it constitutes a significant invasion of privacy are unavailing. Relying on the District Court‘s opinion, Mitchell argues that collection of DNA from arrestees and pretrial detainees cannot be justified on the basis of probable cause as they have not yet been convicted of any offense and thus have the benefit of the presumption of innocence. See Mitchell, 681 F. Supp. 2d at 607. The District Court properly declined to elevate a finding of probable cause to the level of a proper determination of guilt beyond a reasonable doubt. Id. at 606. Nonetheless, it acknowledged that an arrestee or pretrial detainee, who is brought into the criminal justice system on the basis of probable cause has a diminished expectation of privacy in his identity. Id. at 608. The District Court nevertheless concluded that the presumption of innocence outweighed this diminished expectation of privacy because of the complex, comprehensive, inherently private information contained in a DNA sample. Id. As we discussed above, however, this conclusion is based on a flawed premise—that because DNA samples may reveal private information regarding familial lineage and predisposition to over four thousand types of genetic conditions and diseases [as well as] genetic markers for traits, the DNA profiles entered into CODIS also contain this information. Id. (emphasis added). DNA profiles, as opposed to DNA samples, reveal only identity, in which arrestees have a diminished expectation of privacy.

In sum, at present 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 traditional fingerprinting cases emphasize that arrestees and pretrial detainees have a diminished expectation of privacy in their identity. …

Dissent:

I respectfully dissent because I find both of the majority’s conclusions here – that we have jurisdiction over this appeal and that the Government’s program of collecting, analyzing, and maintaining the DNA of arrestees and pretrial detainees comports with the Fourth Amendment – to be seriously flawed.