By Jennifer Halbleib, Stanford Law School, Class of 2012
The Ninth Circuit heard arguments last Tuesday in Haskell v. Brown, a Fourth Amendment challenge to the provision of Proposition 69 requiring collection, analysis, and databanking of DNA samples from anyone arrested for a felony (background and discussion of the argument in district court here). This case deals only with suspicionless DNA collection, where DNA evidence is not related to the crime for which the person was arrested. If DNA is sought as evidence for the crime of arrest, for example to compare to DNA left at a crime scene, then the collection is supported by probable cause and is clearly constitutional. Rather Haskell challenges DNA collection from people arrested, for example, for writing bad checks, a crime in which the arrestee’s DNA is not relevant. The court has upheld the constitutionality of mandatory DNA collection from felons and parolees, but held that mandatory DNA collection from pretrial detainees was not constitutional. This is the first case it has heard that addresses the same procedure for arrestees, who like pretrial detainees are presumed innocent. The circuit has upheld the constitutionality of mandatory DNA collection from felons and parolees, but in Friedman v. Boucher held that mandatory DNA collection from pretrial detainees was not constitutional. This is the first case it has heard that addresses the same procedure for arrestees, who like pretrial detainees are presumed innocent. District courts in Nebraska (United States v. Purdy) and Pennsylvania (United States v. Mitchell), as well as the Minnesota Court of Appeals (In re Welfare of C.T.L), have found that such testing on arrestees violates the Fourth Amendment. The Virginia Supreme Court (Anderson v. Commonwealth) has upheld the practice.
Judge Smith posed his first question to the ACLU less than thirty seconds into the argument, and both parties were peppered with questions and hypotheticals throughout more than an hour of discussion. Judge Smith and Judge Fletcher, while pushing slightly harder on the ACLU and the state, respectively, acknowledged that they were grappling with the complexities of the case. District Court Judge Todd of Tennessee, sitting by designation, closely observed the argument but gave little indication which way he was leaning.
A major theme of the argument centered on the appropriate definition of “identification.” Proposition 69 allows the DNA collected to be used only for identification purposes, imposing penalties for any other use. If identification is confined to who a person is, fingerprinting, which is inexpensive, minimally intrusive, and timely, is superior to DNA, which requires laboratory analysis and in the current system takes a month to yield results. Yet the information contained in DNA can reveal much more about an arrestee than his name and address. After the arrestee’s fingerprints are taken, the government’s need for identification is satisfied. At that point, analyzing DNA for identification is merely cumulative, and the government’s interest in collecting DNA is reduced.
But the state argued that identification in the context of law enforcement also includes what a person has done. Thus, when a police officer pulls over a vehicle, she runs the license plate not only to identify the owner, but also to check for outstanding warrants and criminal history. Knowing this information helps an officer determine what kind of person she is dealing with. The ACLU countered that here the state is attempting to broaden the concept of identification to allow law enforcement to compare arrestee DNA against a database of DNA evidence collected from cold cases or future crime scene DNA, which doesn’t increase the immediate safety of the arresting officer (remember DNA analysis takes a month).
Finally, the panel was intrigued by the possibility that DNA samples from arrestees could be used to catch criminals like the Grim Sleeper. But the DNA used to identify the serial killer came from a database of convicted felons. The ACLU highlighted that a line must be drawn somewhere – law enforcement cannot require DNA samples from everyone on the street. And that line should be the one fundamental to our criminal justice system: guilt or innocence. It suggested that not only did this line comport with a presumption of innocence, but from a practical perspective, convicted criminals are more likely to be responsible for additional offenses, whereas unconvicted arrestees are more likely to clog the pipeline of DNA analysis without yielding relevant hits. Indeed, according to the ACLU, the arrestee database by itself has yet to lead to a single conviction in California. However, collecting arrestee DNA would theoretically solve more crime and we should be wary of depriving police of any tool that would help them do their job. But many other techniques would lead to more crime solved: wiretapping, hearsay evidence, warrantless access to private documents. They just come at a cost to liberty that we aren’t willing to pay.
– Jennifer Halbleib, Stanford Law School, Class of 2012