Jennifer K. Wagner, J.D., Ph.D., is a solo-practicing attorney in State College, PA and a research associate at the University of Pennsylvania’s Center for the Integration of Genetic Healthcare Technologies.
There is an increasingly apparent absence of national consensus on whether the practice of collecting a DNA sample and creating a CODIS profile as part of the routine arrest booking procedures (i.e., “DNA fingerprinting”) conforms to the constitutional proscription of unreasonable searches and seizures articulated as the 4th Amendment. We mentioned this topic at the Genomics Law Report previously here, here, and here.
In July 2011, the 3rd Circuit upheld the federal DNA Fingerprinting Act of 20051 in United States v. Mitchell.2 Perhaps perceiving this ruling as a judicial green light, Pennsylvania’s General Assembly, as we recently noted, seems motivated to authorize the practice of DNA fingerprinting upon felony arrest. While the Pennsylvania Senate passed S.B. 775 and referred the matter to the House Judiciary Committee in December 2011, no apparent action has been taken on the measure since then.
Across the country, however, the practice of DNA fingerprinting upon arrest is anything but settled. The Eastern District of California was ready to acknowledge the constitutionality of the federal law in United States v. Pool, but that opinion has since been vacated as moot.3 The Supreme Court of California is presently considering an appeal of People v. Buza,4 wherein the California Court of Appeal struck down California’s DNA Fingerprint, Unsolved Crime and Innocence Protection Act (a ballot initiative known commonly as Prop 69, which passed in 2004) as unconstitutional. The 9th Circuit has yet to issue ruling in Haskell v. Brown,5 contributing to the uncertainty (see previous coverage).
Minnesota is the latest to weigh in on the matter. In January the Supreme Court of Minnesota, deciding In re Welfare of M.L.M.6 and State v. Johnson,7 determined that its state statute authorizing DNA fingerprinting during arrest booking procedures, Minn. Stat. §609.117, did not run afoul of either the United States or Minnesota Constitutions. The defendants had challenged the statute on both 4th Amendment and Equal Protection grounds.
At issue in In re Welfare of M.L.M. was whether the DNA fingerprinting of a juvenile petitioned for a felony but adjudicated for a misdemeanor arising from the same fact pattern (as required by Minn. Stat. §609.117 subd. 1(2)) was either an unreasonable search and seizure or a violation of Equal Protection clauses. At issue in State v. Johnson was whether the DNA fingerprinting of an individual arrested for a felony but subsequently only convicted of a misdemeanor arising from the same fact pattern (as required by Minn. Stat. §609.117, subd. 1(1)) was an unreasonable search and seizure. In both cases, the Minnesota Supreme Court applied a totality of the circumstances test, balancing the governmental interests with the reduced privacy interests of the individual convicted or adjudicated of the misdemeanor, and found in each case that the DNA fingerprinting did not constitute an unreasonable search and seizure. In both cases, the Minnesota Supreme Court rejected the defendants’ arguments that individuals who have been adjudicated/convicted of a misdemeanor but not charged with a felony are similarly situated with those individuals who have been adjudicated/convicted of a misdemeanor after having had a felony charge arising from the same facts and circumstances dismissed. Accordingly, the court ruled both subdivisions of the Minnesota state statute were constitutional.
While appropriately reserved for a separate discussion, it is noteworthy that courts – when applying a totality of the circumstances analysis to determine the reasonableness of the search/seizure occurring in DNA fingerprinting – are frequently resting their decisions on their varying perspectives regarding the aptness of the “fingerprint analogy,” i.e., the scope and nature of the information inferable from CODIS profiles and dermatoglyphic profiles. Legal arguments are also placing substantial weight on the definition and conceptualization of “identification purposes,” as opponents of DNA fingerprinting claim its use is not for identification per se but actually for broader investigative purposes. The recent recommended expansion of the CODIS profile from 13 to 24 STR loci is not expected to have a significant influence on the constitutional questions.
Given the varying perspectives among the circuit courts, it seems only a matter of time before the Supreme Court is called upon to resolve the question of whether DNA fingerprinting upon arrest passes constitutional muster.
1 DNA Fingerprinting Act of 2005, Pub. L. 109-162
2 United States v. Mitchell, 652 F.3d 387 (3rd Cir. (Pa), 2011)
3 United States v. Pool, 621 F.3d 1213, rehearing en banc granted, 646 F.3d 659 (9th Cir., 2010), vacating as moot 659 F.3d 761 (9th Cir. 2011)
4 People v. Buza, 197 Cal. App. 4th 1424, 129 Cal. Rptr.3d 753 (Ct. App., 1st Dist., Div. 2, Ca 2011), petition for review granted, 262 P.3d 854, appeal pending Supreme Court of California No. S196200
5 Haskell v. Brown, 677 F.Supp.2d 1187 (N.D. Cal. 2009), appeal pending, 9th Cir. No. 10-15152
6 In re Welfare of M.L.M. – N.W.2d – (Minn., 2012), 2012 WL 204524
7 State v. Johnson, – N.W.2d – (Minn., 2012), 2012 WL 204520