Concerning the Constitutionality of Mandatory DNA Collection
At issue in US v. Pool is the federal government’s authority to collect a DNA sample as a condition of release before trial from every individual formally charged with a felony. The DNA Analysis Backlog Elimination Act of 2000, 42 U.S.C. § 14135a(a)(1)(a), provides that the Attorney General may ‘collect DNA samples from individuals who are arrested, facing charges, or convicted.’ After a DNA sample is taken by either a cheek swab or blood test, the sample is sent to the FBI, which analyzes the DNA and creates a profile in its national Combined DNA Index System (‘CODIS’). CODIS allows federal, state and local law enforcement and forensics laboratories to compare DNA profiles and link profiles to crime scene evidence.
A federal magistrate judge ruled that criminal defendant Jerry Pool must submit to a DNA test. Pool was not convicted of any offense at the time the judge ordered the test. Pool had no prior criminal record and entered a plea of ‘not guilty’ at his arraignment. The United States District Court for the Eastern District of California affirmed the ruling, which Pool subsequently appealed to the United States Circuit Court of Appeals for the Ninth Circuit. A three judge panel for that court upheld the DNA collection order. An en Banc panel for the Ninth Circuit subsequently agreed to hear the case, but the defendant pled guilty before the case could be reheard, and the appeal was dismissed.
On January 8, 2009 Jerry Arbert Pool was indicted for receiving and possessing child pornography. Pool had no prior criminal record and entered a plea of ‘not guilty’ at his arraignment. The magistrate judge ordered that Pool be released on a $25,000 bond with the condition that he obey all pre-trial conditions, including that he provide a DNA sample. Pool refused, and challenged the constitutionality of two amendments to the Bail Reform Act, 18 U.S.C. §§ 3142(b) and (c)(1)(A), that require a defendant to cooperate in the collection of a DNA sample as a condition of pre-trial release.
Pool is challenging the Bail Reform Act Amendments, and the constitutional issues addressed by the court implicate the DNA Analysis Backlog Elimination Act of 2000. The DNA Analysis Backlog Elimination Act of 2000, 42 U.S.C. § 14135a(a)(1)(a), provides that the Attorney General may ‘collect DNA samples from individuals who are arrested, facing charges, or convicted.’ After a DNA sample is taken by either a cheek swab or blood test, the sample is sent to the FBI, which analyzes the DNA and creates a profile in its national Combined DNA Index System (‘CODIS’). CODIS allows federal, state and local law enforcement and forensics laboratories to compare DNA profiles and link profiles to crime scene evidence.
Pool alleged that mandatory DNA sampling and profiling was a violation of his Fourth Amendment rights because it constituted an unlawful search and seizure, as the government had no warrant or probable cause to sample and profile his DNA. The invasion of privacy Pool alleged is not the physical collection of a DNA sample, but the intrusive nature of the information contained in such a sample. Pool argued that a DNA sample revealed much more than identification. He added that the government’s assurances were insufficient to guarantee that the DNA sample will not be used for non-identification purpose. The magistrate judge denied Pool’s request for a hearing on the DNA collection requirement and ruled that requiring the DNA test violated none of Pool’s rights.
Pool appealed the order, and the US District Court for the Eastern District of California affirmed the magistrate judge’s ruling. Pool then appealed to the Ninth Circuit Court of Appeals. In his brief, Pool cited scientific studies demonstrating that DNA data in CODIS profiles can disclose genetic traits and conditions. The Ninth Circuit ruled two-to-one that Pool could be required to provide a DNA sample.
The concurring opinion by Judge Lucero emphasized the narrowness of the majority holding, highlighting the significant distinction between the wealth of personal information contained in a DNA sample and the specific information processed in this case. Lucero stated that if the profiles or stored information are ever used for anything more extensive than identification, a different balancing test would be required. Further, the court considered only the government’s stated uses, and not any potential misuse of the CODIS system.
The dissent Judge Schroeder issued argued that the government failed to justify a Fourth Amendment exemption, highlighting the majority’s finding that DNA swabs and extractions of blood for DNA analysis are both searches under the 4th Amendment. Judge Schroeder also asserted that the majority opinion mischaracterized the court’s opinions in US v. Kincade and US v. Kriesel, which both upheld the government’s authority to compel DNA profiling for certain convicted felons. The majority cited the cases for the proposition that DNA testing anyone with limited Fourth Amendment rights is acceptable, but both cases emphasized that conviction, not any lesser impairment of rights, was a prerequisite for imposing compulsory DNA testing. Schroeder also noted that the portion of Kincade the majority relied on to find that information produced from a DNA sample is minimally invasive is not law; it was from a section of the plurality opinion which failed to garner majority support.
Dismissal of The Case
On June 2, 2011 the Ninth Circuit granted a petition to rehear the case en banc, thereby vacating the three-judge opinion. However, on September 19, 2011 the appeal was dismissed as moot because the defendant pled guilty. As a result, the case was never heard en banc and the panel opinion has no precedential value.
The Bail Reform Act requires a full DNA sample to be collected and retained, leaving the federal government with access to far more genetic information than needed for identification purposes. A large, centralized database comprised of DNA samples from millions of Americans has important implications for privacy rights. Unique genetic information contained in DNA can identify an individual, identify family members, convey sensitive personal information.
In 2005, EPIC submitted administrative comments to the TSA regarding the use of biometric data in access control systems used by workers at the nation’s airports. EPIC cited a number of ways in which such biometric systems can be easily defeated, such as by using false identification at enrollment, physical alteration of a personal biometric, skewing sample collection by not cooperating, and hacking into or falsifying the database.
In 2005, EPIC also filed a ‘friend of the court’ brief (PDF) in Kohler v. Englade, 470 F.3d 1104 (5th Cir. 2006), where police in Baton Rouge, Louisiana conducted a house-to-house dragnet to collect DNA samples. EPIC was successful in helping to affirm that such practices were illegal when they compelled a DNA sample.
In 2004, EPIC filed a “friend of the court” brief (PDF) in United States v. Kincade, 379 F. 3d 813 (9th Cir. 2004), which is one of the Ninth Circuit precedents at contention in Pool. Kincade addressed the requirement under the DNA Analysis Backlog Elimination Act of 2000 that requires the compulsory collection of DNA samples from individuals entering parole. EPIC argued that the statute be struck down as unconstitutional under the Fourth Amendment. The court held that an individual already convicted had a lowered expectation of privacy which allowed the DNA collection.
In 2004, EPIC submitted another ‘friend of the court’ brief in Maryland v. Raines, 857 A.2d 19 (Md. 2004) opposing the state law DNA Collection Act, which allows DNA samples to be taken from inmates. Charles Raines, who was already incarcerated, was forced to submit to a DNA test, which ultimately linked him to an unsolved sexual assault. EPIC argued that the DNA Collection Act violated both the Fourth Amendment and Article 26 of the Maryland Declaration of Rights, Maryland’s state constitutional equivalent. The Maryland Court of Appeals held that the Act did not violate Raines’s rights because he, as an incarcerated individual, ‘enjoy[ed] less liberty than that of ordinary citizens.’
In 2009, EPIC filed a ‘friend of the court’ brief (PDF) in the 2009 Supreme Court case of Herring v. United States, 555 U.S. 135 (2009). EPIC argued that the dramatic expansion of law enforcement databases riddled with inaccuracies and incomplete information puts individuals at risk and jeopardizes criminal investigations. In that case, the Supreme Court considered the Constitutionality of a police search premised on erroneous information from an inaccurate law enforcement database. EPIC urged the Court to suppress trial evidence produced from searches which rely on inaccurate databases. The Court held that the Fourth Amendment only requires the suppression of evidence when doing so would meaningfully deter similar behavior in the future, and when police conduct was sufficiently culpable that such deterrence is worth the price paid by the justice system. Although the Court majority did not exclude the evidence, Justice Ginsburg, writing for four of the Justices in dissent, said that “negligent recordkeeping errors by law enforcement threaten individual liberty, are susceptible to deterrence by the exclusionary rule, and cannot be remedied effectively through other means.”
Ninth Circuit Court of Appeals
Ninth Circuit Rehearing
- Order for Rehearing en Banc, United States v. Pool, No. 09-10303, 2011 WL 2151202 (9th Cir. June 2, 2011).
- Peition for Rehearing en Banc, United States v. Pool, No. 09-10303 (9th Cir. Oct. 2, 2010).
Ninth Circuit Hearing
- Ninth Circuit Opinion, United States v. Pool, 621 F.3d 1213 (9th Cir. 2010).
- Appellant Jerry Pool’s Opening Brief, United States v. Pool, 621 F.3d 1213 (9th Cir. 2009) (No. 09-10303).
- Appellee United States’ Response Brief, United States v. Pool, 621 F.3d 1213 (9th Cir. 2009) (No. 09-10303).
- Appellant Jerry Pool’s Reply Brief, United States v. Pool, 621 F.3d 1213 (9th Cir. 2009) (No. 09-10303).
- “Friend of the Court” Brief for the American Civil Liberties Union Northern California Chapter, United States v. Pool, 621 F.3d 1213 (9th Cir. 2009) (No. 09-10303).
- District Court Order for DNA Testing, United States v. Pool, No. CR S-09-0015, 2009 WL 2152029 (E.D. Cal. Jul. 15, 2009).
- Magistrate Order for DNA Testing, United States v. Pool, No. CR S-09-0015 (E.D. Cal. May 27, 2009).
Supreme Court Precedent
- Schmerber v. California, 384 U.S. 757 (1966)
- United States v. Salerno, 481 U.S. 739 (1987)
- Samson v. California (PDF), 547 U.S. 843 (2006)
9th Circuit Precedent
- United States v. Kincade (PDF), 379 F. 3d 813 (9th Cir. 2004)
- United States v. Scott (PDF), 450 F.3d 863 (9th Cir. 2006)
- United States v. Kriesel, 508 F.3d 941 (9th Cir. 2007)
- Friedman v. Boucher, 580 F.3d 847 (9th Cir. 2009)
Circuit and District Court Opinions on DNA Collection
- Nicholas v. Goord, 430 F.3d 652 (2nd Cir. 2005)
- United States v. Hook, 471 F.3d 766 (7th Cir. 2006)
- United States v. Weikert (PDF), 504 F.3d 1 (1st Cir. 2007)
- Kaemmerling v. Lappin, 553 F.3d 669 (D.C. Cir. 2008)
- US v. Mitchell, 681 F. Supp. 2d 597 (W.D. Penn. 2009).
Relevant Law Review Articles, Reports, and Books
- Privacy and Medicine, Anita Allen, Stanford Encyclopedia of Philosophy (2009).
- Personal Data: the Logic of Privacy, Helen Nissenbaum, The Economist (2007).
- Weaving Technology and Policy Together to Maintain Confidentiality, Latanya Sweeney, National Commission on Vital and Health Statistics (1998).
- Emily C. Barbour, Cong. Research Serv., RL 41847, DNA Databanking: Selected Fourth Amendment Issues and Analysis (2011)
- Who’s Next? The Continued Expansion of DNA Databases in United States v. Kincade, Eric May, 43 Criminal Law Bulletin 6 (2007).
- Am I My Brother’s Keeper?: Familial DNA Searches in the Twenty-First Century, Mary McCarthy, 86 Notre Dame Law Review (2011)
- Safety in Numbers? Deciding when DNA Alone is Enough to Convict, Andrea Roth, 85 New York University Law Review 1130 (2010)
- Brave New Circuit: Creeping Towards DNA Database Dystopia in U.S. v. Weikert, Alec Rice, 14 Roger Williams University Law Review 691 (2009)
- The DNA Analysis Backlog Elimination Act of 2000, Roberto Iraola, 40 Criminal Law Bulletin 2 (2004)
- Concerns Associated with Expanding DNA Database, Candice Roman-Santos, 2 Hastings College & Technology Law Journal 267 (2010)
- Probable Cause from Probable Bonds: A Genetic Tattle Tale Based on Familial DNA, Jessica Gabel, 21 Hastings College of the Law 3 (2010)
- The Perils of Suspicionless DNA Extraction of Arrestees Under California Proposition 69: Liability of the California Prosecutor for Fourth Amendment Violation? The Uncertainty Continues in 2010, 37 Western State University Law Review 183 (2010)
- The Problem Child: Forensic DNA Databases, Familial Search, and A Call for Reform, Michael Seringhaus, Yale Law School Student Scholarship Repository, Student Prize Papers (2010).