The District of Massachusetts, per Judge Young, yesterday held the Federal DNA collection act unconstitutional as applied to a mere probationer where a DNA sample can be taken by force if need be. United States v. Stewart, 468 F. Supp. 2d 261 (D. Mass. January 8, 2007) (case name is free link). This is a lengthy and important opinion, and still subject to review by the First Circuit, so I only quote from the introduction and the conclusion:
On a historical island between the looming skyscrapers and glass office buildings of the Boston financial district sits the Old State House — a small but ornate brick building that was once the seat of the royal government in colonial Massachusetts. This building is perhaps best remembered for the white, second floor balcony where, on July 18, 1776, Colonel Thomas Crafts read to the people of Boston a copy of the newly signed Declaration of Independence. Yet, fifteen years earlier an event occurred in that building that a young John Adams witnessed and would describe as “the first scene of the first act of opposition to the arbitrary claims of Great Britain …. Then and there the child independence was born.” David McCullough, John Adams 62 (Simon & Schuster 2001).
John Adams was referring to the eloquent five-hour speech James Otis gave against the Writs of Assistance — the general warrants authorized by the British Crown to customs officials allowing them to conduct arbitrary searches for untaxed imported goods. Otis had argued that any statutory authority that purported to grant such a general writ violated common-law principles and was, as a result, null and void. The arguments made by Otis highlighted the colonists’ aversion to arbitrary governmental action and were instrumental in the enactment of the Fourth Amendment to the United States Constitution.
Today, this Court is called upon to apply the principles that once resonated in the halls of the Old State House and in the minds of the Framers of our Constitution to a situation framed by technology, penological interests, and suspect statutory authority. James Stewart (“Stewart”) brings this Motion to Modify Conditions of Probation [Doc. No. 16] seeking to preclude the United States Probation Department from obtaining a DNA n1 sample pursuant to the DNA Analysis Backlog Elimination Act of 2000 (“DNA Act”), codified at 42 U.S.C. §§ 14135-14135e and 10 U.S.C. § 1565, and in accordance with the special conditions of his probation. Stewart argues that the DNA Act, by compelling a collection of his DNA while on probation, violates his constitutional rights under the Fourth Amendment to the United States Constitution. This Court agrees and holds the DNA Act unconstitutional as applied to Stewart.
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III. CONCLUSION
Today this Court faces the latest iteration in the growing tension between technology’s ability to advance governmental purposes and the Fourth Amendment’s protection of individual privacy. This tension is faced and resolved by balancing the government’s purpose against the resulting intrusion on the individual. When conducting such a balancing test, the immediate and tangible imperatives of the governmental purpose often outshine and eclipse the more telescopic and inchoate value of personal privacy. The willingness to watch the erosion of such rights silently is most likely where the vanishing liberties are perceived as not our own. It is even more acute where the subjects are those who have derided and evaded, through criminal misconduct, the order and legal structure on which they now rely.
But the tapestry of constitutional protections that cover all Americans is woven with long threads, each section and each pattern revealing of the integrity of the whole. This holding seeks not to mend this fabric, but to preserve it. To preserve it, most directly, for the unsympathetic probationer who, despite a transgression against the law and against society, is now released to and embraced by that same law and that same society to the full extent reasonably possible. It is also preserved indirectly and with greater resonance for those who remain untouched by this individual invasion, but who suffer the collective erosion of their protection against arbitrary state action.
For this purpose, the Fourth Amendment must not be applied with myopic deference to an immediate governmental imperative. Instead, it must be applied cautiously and with broad vision both as to its historical purpose and to its future viability. As Justice Jackson said after his return from the Nuremberg trials, “one need only briefly to have dwelt and worked among a people possessed of many admirable qualities but deprived of rights to know that the human personality deteriorates and dignity and self-reliance disappear where homes, persons and possessions are subject at any hour to unheralded search and seizure by the police.” Brinegar v. United States, 338 U.S. 160, 180-81 (1949) (Jackson, J., dissenting). To this end, “it is the duty of courts to be watchful for the constitutional rights of the citizen, and against any stealthy encroachments.” Byars v. United States, 273 U.S. 28, 32 (1927). These rights are not absolute, and the government, at times, may present public purposes significant enough to overcome such constitutional protections.
The government did not do so in this case.
Accordingly, Stewart’s Motion to Modify Conditions of Probation [Docket No. 16] is ALLOWED, and the DNA Analysis Backlog Elimination Act of 2000 is held unconstitutional as applied to James Stewart.
Comment: I made this same argument and lost 2-1/2 years ago in Arkansas.
Copy of a search warrant for informant’s premises was found in defendant’s truck, and it was admissible as having been found in a search incident. Its relevance was to show that defendant had knowledge of the informant. United States v. Mooneyham, 473 F.3d 280 (6th Cir. January 9, 2007).*
Officers were on notice of Schmerber‘s requirement of exigent circumstances for a forced blood draw in a DUI case. Marshall v. Columbia Lea Regional Hosp., 2007 U.S. App. LEXIS 389 (10th Cir. January 9, 2007):
No one disputes that Mr. Marshall’s refusal to submit to a blood test put him in violation of New Mexico’s implied consent law and that his driver’s license could be suspended as a result. As we discussed with regard to Schmerber, where, as here, police could and did use an alternative, less intrusive, means of testing blood-alcohol content, a blood test is not necessary and cannot be justified by exigent circumstances. The officers needed something more to justify a blood test after Mr. Marshall’s voluntary submission to two breathalyzer tests. See Richerson, 535 P.2d at 648 (requiring that the officer be “confronted with an emergency”); Hammer v. Gross, 932 F.2d 842, 854 (9th Cir. 1991) (“If the government is going to use force to pin someone to a chair, stick a needle in his arm and drain blood from his vein, against his will and despite his acquiescence in an effective alternative [here, a breathalyzer test] it had better have a reason.”) (Kozinski, J., concurring in part and dissenting in part).
. . .
Accordingly, we reject the officers’ contention that they did not have “fair warning” that, at the time of the events in question, New Mexico’s classification of a DUI offense as a misdemeanor would preclude the finding of exigent circumstances under Schmerber. Hope, 536 U.S. at 740.
The jury found that Mr. Marshall’s actions in no way amounted to consent. As the district court concluded, it is difficult to imagine how a competent officer could think it could make sense or be reasonable to violate state law. Aplts’ App. vol. I, at 167 (“I conclude that even if these officers mistakenly thought what they did was proper, it was objectively unreasonable for them to think they could lawfully give this blood test in the absence of Mr. Marshall’s consent….”); Malley v. Briggs, 475 U.S. 335, 341, 89 L. Ed. 2d 271 (1986) (“As the qualified immunity defense has evolved, it provides ample protection to all but the plainly incompetent or those who knowingly violate the law.”); Harlow v. Fitzgerald, 457 U.S. 800, 818-19, 73 L. Ed. 2d 396 (1982) (stating that “a reasonably competent public official should know the law governing his conduct”). Viewing the facts in the light most favorable to the jury’s verdict, the district court correctly concluded that a reasonable officer, similarly situated, would understand that his or her conduct violated the rights clearly established in Schmerber.
