Mandatory DNA testing and the Fourth Amendment Beverly A. Ginn Legal Advisor Tucson PD

Mandatory testing statutes Currently, the federal government and each state mandate that certain convicted persons provide samples of their DNA to the government. The classes of persons included vary, but no individualized suspicion or other similar information is necessary.

Judicial Review Until very recently, every court that had reviewed the constitutionality of mandatory DNA statutes had found them to be constitutional under the 4th Amendment.

State DNA statutes have been upheld by decisions in numerous reported cases, including decisions by five federal Circuit Courts of Appeal.

Courts have upheld state mandated DNA testing statutes under one of two separate legal rationales: –1. Such a search is “reasonable” under the 4th Amendment when the competing interests are “balanced.” –2. Such a search fits within the “special needs” exception to the 4th Amendment.

Reasonableness/Balancing The majority of the decisions are based on a finding that the search is reasonable, balancing the competing interests. Rationale: Minimal intrusion, Lesser expectation of privacy, Overwhelming public interest in accurate and effective crime prevention, control and prosecution.

“Special Needs” exception A number of the cases rely instead on “special needs.” Special needs exception: a search may be reasonable even when predicated on less than probable cause or individualized suspicion where special needs, beyond the normal need for law enforcement, render those requirements impractical Examples: border searches, DUI checkpoints, employee/student drug testing.

“Special Needs” exception Rationale: The program is one whose purpose is outside the “normal need for law enforcement.” Warrant and probable cause requirements are impractical. Balancing competing interests weighs in favor of the government program and the search involved is reasonable.

But…. The first U.S. Circuit Court of Appeals decision to consider* the constitutionality of the federal mandatory DNA testing statute has just been decided. The Court ruled the statute was unconstitutional. U.S. v. Kincade, 2003 U.S. App. LEXIS (9th Cir. 2003) (decided October 2)

Who cares about the 9th? We all do, since an interruption in the flow of information to CODIS affects all of law enforcement, and The rationale used by the 9th Cir. to strike down the DNA Act may influence decisions by other courts.

Kincade “No circuit court has heretofore given full consideration to the question of the constitutionality of the DNA Act.” Panel finds other decisions regarding DNA statutes implicitly overruled by the U.S.Supreme Court’s recent decisions in Edmond and Ferguson.

City of Indianapolis v. Edmond Drug interdiction roadblocks. Programs dependent upon suspicionless searches cannot be justified solely or primarily by reference to the needs of law enforcement. The “special needs” exception does not apply to a government program when the primary purpose is to detect evidence of “ordinary criminal wrongdoing.”

Ferguson v. City of Charleston Enforcement of drug laws using medical tests done on pregnant women “The immediate objective of the searches was to generate evidence for law enforcement purposes, and, accordingly, tests conducted for purposes of the program violated the 4th Amendment….[I]n none of our previous special needs cases have we upheld the collection of evidence for criminal law enforcement purposes.”

So…………... A fair reading of Edmond and Ferguson: 1. Individualized suspicion is required for any search to be reasonable, unless… 2. The “special needs” exception applies.

Kincade Finds no justification for an analysis that allows “balancing” of law enforcement needs to outweigh the 4th Amendment requirement of individualized suspicion for compulsory blood extraction. Finds that the DNA Act has as its primary purpose normal law enforcement and is therefore not a “special needs.”

U.S. v. Miles (E.D.Ca 2002) Reaches the same conclusion. Reads the Supreme Court’s cases as holding that programmatic suspicionless searches cannot be justified by reference to general law enforcement needs, or by programs in which the immediate objective is to generate evidence for law enforcement purposes. Struck down DNA Act as applied to the facts in this case.

And for the opposite view...

Nicholas v. Goord (S.D. NY 2003) Decided before Kincade. Agrees that Edmond and Ferguson hold that the balancing/reasonableness inquiry used by many courts is not an appropriate analysis. Agrees that the “special needs” exception to the 4th Amendment applies only to programs that have as their primary purpose a need “beyond the normal need for law enforcement.”

Nicholas v. Goord (S.D. NY 2003) Upholds DNA Act, finding the primary purpose to be something other than the collection of evidence for criminal prosecution. –DNA samples are not evidence of crime –Not collected for prosecution of a specific crime –Does not prove that donor committed a crime –Program intended to create a more accurate criminal justice system, solve future crimes.

U.S. v. Reynard (S.D.Ca 2002) District Court performs the same analysis as that of the Nicholas case and reaches the same conclusion - the special needs exception applies. Court finds the following purposes of the statute: –Completing the CODIS database –Assisting state and local law enforcement functions –Increasing the accuracy of the criminal justice system –Preventing violent felons from repeating their crimes in the future

Future of DNA testing statutes Will other courts, especially state courts, begin to revisit their prior holdings that these statutes are constitutional? It is expected that a petition for rehearing will be filed in Kincade.