By Declan McCullagh | Cnet | May 28, 2009
In the first case of its type, a federal judge in California has ruled that police can forcibly take DNA samples, including drawing blood with a needle, from Americans who have been arrested but not convicted of a crime.
U.S. Magistrate Judge Gregory Hollows ruled on Thursday that a federal law allowing DNA samples upon arrest for a felony was constitutional and did not violate the Fourth Amendment's prohibition of "unreasonable searches and seizures."
Hollows, who was appointed by President George H.W. Bush, said the procedure was no more invasive or worrisome than fingerprinting or a photograph. "The court agrees that DNA sampling is analogous to taking fingerprints as part of the routine booking process upon arrest," he wrote, calling it "a law enforcement tool that is a technological progression from photographs and fingerprints."
"The invasiveness of DNA testing is minimal," Hollows wrote (PDF). "The DNA can be taken by an oral swab, and even blood tests have been held to be a minimal intrusion."
"We are very gratified with the ruling," Lawrence Brown, acting U.S. attorney for the Eastern District of California, said in a statement. It also said that the U.S. Department of Justice "exercised its authority under the statute earlier this year and issued direction to various federal agencies to begin collecting the DNA of individuals who are arrested or facing charges, as has historically been the case with the collection of fingerprints."
A bill that President Bush signed in January 2006 said any federal police agency could "collect DNA samples from individuals who are arrested." Anyone who fails to cooperate is, under federal law, guilty of an additional crime.
In addition, federal law and subsequent regulations from the Department of Justice authorize any means "reasonably necessary to detain, restrain, and collect a DNA sample from an individual who refuses to cooperate in the collection of the sample." The cheek swab or blood tests can be outsourced to "private entities."
While other courts have ruled on the constitutionality of DNA sampling after conviction, this is the first case to deal with defendants who have only been accused of a crime. (The 9th Circuit, in U.S. v. Kincade (PDF), ruled that mandatory DNA testing of violent convicted felons on supervised release was constitutional; a dissent by Judge Alex Kozinski said that same logic could lead to mandatory testing of every American citizen: "The more DNA samples are included in the database, the better off we are: More guilty parties will be found, more innocents will be cleared and more unknown crime victims will be identified...")
The defendant in the current case in California, Jerry Albert Pool, is accused of possessing child pornography in the form of illegal images of minors on his computer, a felony. He has no prior criminal record and has pleaded not guilty.
Hollows ruled that in the case of felony charges lodged against a defendant by a judge or a grand jury--resulting in a formal finding of probable cause--mandatory DNA sampling was reasonable. He noted that he took no position on whether or not DNA sampling for misdemeanor offenses was reasonable and constitutional.
The list of possible federal felony charges includes ones you might expect, including counterfeiting and kidnapping. But it also includes some forms of peer-to-peer piracy, circumventing e-book protection, or using innocent words like "Barbie" on a sexually-explicit Web site.
"In utilizing the totality of the circumstances, the decision to impose the DNA testing requirement on pre-trial detainees or releasees seems clearly warranted, if not compelling," Hollows wrote. "An arrestee's identity obviously becomes a matter of legitimate state interest...While fears of a 'Big Brother' style government harassing or persecuting individuals based on genetic characteristics is always theoretically possible, that is not the purpose of the amendments before the court, nor is it at all likely."