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: \u201cThis 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.\u201d] United States v. Thomas, 2011 U.S. Dist. LEXIS 45333 (W.D. N.Y. February 14, 2011):<\/p>\n
B.Application of the Special Needs Test<\/strong><\/p>\n
1. The Act Serves a Special Need:<\/strong> 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 \u201cgeneral interest in crime control\u201d 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, \u201cthe program may nevertheless be reasonable under the special needs doctrine so long as crime control is not the program\u2019s primary purpose.\u201d 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). \u201c[T]he appropriate inquiry … [is] whether the search \u2018serves as its immediate purpose an objective distinct from the ordinary evidence gathering associated with crime investigation.\u2019\u201d Amerson, 483 F.3d at 81 (quoting Nicholas v. Goord, 430 F.3d at 663).<\/p>\n
. . .<\/p>\n
2. Nature of Privacy Interest and Degree of Governmental Intrusion:<\/strong><\/p>\n
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 \u201chighly context specific,\u201d id. at 87, much of the court\u2019s reasoning and conclusions in Amerson nonetheless apply in the context presented by this case \u2014 the collection of DNA samples by indicted, rather than convicted persons. Indeed, for the reasons explained more fully below, I believe that Amerson\u2019s holding and its underpinnings logically dictate the result in this case.<\/p>\n
. . .<\/p>\n
The second and \u201cpotentially much more serious invasion of privacy\u201d is the \u201canalysis and maintenance of [DNA] information\u201d in CODIS. Id. at 85. According to the Second Circuit, this intrusion is \u201csignificant\u201d considering the \u201cvast amount of sensitive information that can be mined from a person\u2019s DNA and the very strong privacy interests that all individuals have in this information.\u201d Id. (emphasis added) (citing United States v. Kincade, 379 F.3d at 843 (Reinhardt, J., dissenting) (discussing concerns about the \u201cprofound social effects\u201d of \u201callowing the government to collect and maintain private information about the intimate details of our lives\u201d)). Despite concerns over the value of DNA information, the court determined that the statutes\u2019s safeguards adequately \u201cminimized\u201d the privacy invasion occasioned by the DNA indexing. First, the court observed that the CODIS database stores only \u201cjunk DNA\u201d sequences that are not \u201ccurrently associated with any known physical or medical characteristics,\u201d but rather \u201cestablish[] only a record of the [person\u2019s] identity.\u201d Id. Second, the court noted that the Act \u201cseverely limits\u201d 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 \u201cmisuse of the DNA samples\u201d by the government or \u201cscientific advances concerning the information that can be mined from the DNA footprint stored on the CODIS database.\u201d Id. at 87. If it did, the court cautioned, \u201cour analysis and ultimate conclusions might very well be different.\u201d Id.<\/p>\n
. . .<\/p>\n
While the determination in Amerson that the privacy intrusion was \u201cquite small\u201d explicitly rested on the appellants\u2019 \u201cstatus as probationers,\u201d 483 F.3d at 87, Thomas\u2019s status as an indicted person should not alter that conclusion, in my estimation. After all, \u201cwhen a suspect is arrested upon probable cause, his identification becomes a matter of legitimate state interest and he can hardly claim privacy in it.\u201d 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 (\u201cit 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\u201d). Accordingly, I must conclude that the intrusion occasioned by DNA sample collection for indicted persons is also \u201cquite small.\u201d<\/p>\n
3. The Government\u2019s Interest:<\/strong> The Second Circuit has determined that \u201cthe 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.\u201d Amerson, 483 F.3d at 87. Thus, the court in Amerson held that the \u201cvery broad societal interest\u201d in having the \u201ccapacity to identify or exclude individuals, quickly, accurately, and at reasonable expense\u201d outweighed the \u201crelatively small\u201d invasion of a probationer\u2019s privacy. … <\/p><\/blockquote>\n","protected":false},"excerpt":{"rendered":"
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