You are on page 1of 22

455 BAUMAN FINAL (DO NOT DELETE)

4/20/2013 2:13 PM

United States v. Mitchell: Warrantless DNA and a Whole New Meaning to the Strip Search

BRETT A. BAUMAN ABSTRACT


The DNA Act allows federal law enforcement agencies the power to collect and analyze arrestees and pretrial detainees DNA at their discretion. While the DNA Act does not mandate DNA collection of arrestees and pretrial detainees, the U.S. Attorney General has required every U.S. agency to perform such collection. Additionally, the Third Circuit held that the warrantless, pretrial collection and testing of DNA complies with the Fourth Amendment. In United States v. Mitchell, the United States Court of Appeals for the Third Circuit considered the constitutionality of the DNA Analysis Backlog Elimination Act (DNA Act) in the Fourth Amendment context. This Comment argues that the Third Circuit erred in holding that the warrantless, pretrial collection and testing of DNA complies with the Fourth Amendment. Arrestees and pretrial detainees have a reasonable expectation of privacy in their DNA and warrantless, pretrial collection and analysis of a defendants DNA is unconstitutional. The court failed to heed Fourth Amendment jurisprudence and created a dangerous precedent attempting to justify DNA collections that further criminal investigative efforts.

Candidate for Juris Doctor, New England Law | Boston (2013); B.A., Criminal Justice, Florida Atlantic University (2010). I would like to thank my father, Jeffrey H. Bauman, for all of his support, encouragement, and inspiration throughout this experience. Without him, this article would not have been possible.

455

455 BAUMAN FINAL (DO NOT DELETE)

4/20/2013 2:13 PM

456

New England Law Review

v. 47 | 455

INTRODUCTION
The villains seized me in my shirt and I demanded their Warrants. I was told they had authority but would show no warrant. he Fourth Amendment provides protection against unreasonable searches and seizures, and prescribes that a search warrant must be based on probable cause and describe the places to be searched and the persons or things to be seized.1 The Fourth Amendments purpose is to prevent the government from performing random, open-ended searches on individuals at any time.2 Ordinarily, the government must obtain a warrant for a search or seizure to be reasonable under the Fourth Amendment.3 Courts use two exceptionsthe special-needs exception and the totality-ofthe-circumstances testto justify warrantless searches and seizures of Deoxyribonucleic acid (DNA).4 Congress, attempting to compile DNA for law enforcement purposes, enacted the Violent Crime Control and Law Enforcement Act of 1994 (Violent Crime Control Act).5 The most recent expansion of this Act, called the DNA Analysis Backlog Elimination Act (DNA Act), grants federal law enforcement agencies the ability to collect and analyze arrestees and pretrial detainees DNA without a warrant or probable cause.6 While Congress did not mandate the DNA collection from arrestees and pretrial detainees, the U.S. Attorney General has required every U.S. agency to perform such a collection.7 The United States Court of Appeals for the Third Circuit recently considered whether the DNA Act transgresses Fourth Amendment strictures.8 In United States v. Mitchell, Ruben Mitchell objected to the warrantless collection of his DNA following his indictment for attempted possession with intent to distribute cocaine.9 Mitchell argued that collection
1 2

U.S. CONST. amend. IV. Kelly Lowenberg, Applying the Fourth Amendment When DNA Collected for One Purpose Is Tested for Another, 79 U. CIN. L. REV. 1289, 1299 (2011). 3 Id. at 1300. 4 See infra text accompanying notes 49-53. 5 See generally Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103322, 108 Stat. 1796 (codified as amended at 42 U.S.C. 13701-14223 (2006)). See 42 U.S.C. 14135a. United States v. Mitchell, 652 F.3d 387, 401 (3d Cir. 2011) (Mitchell II); see 28 C.F.R. 28.12(b) (2009).
7 6

See Mitchell II, 652 F.3d at 391. United States v. Mitchell, 681 F. Supp. 2d 597, 599 (W.D. Pa. 2009) (Mitchell I); Mitchell II, 652 F.3d at 389; see generally Controlled Substance Act, 21 U.S.C. 846 (2006) (identifying the statute under which the government sought to obtain a sample of Mitchells DNA).
9

455 BAUMAN FINAL (DO NOT DELETE)

4/20/2013 2:13 PM

2012

Warrantless DNA and Strip Searches

457

of his DNA prior to conviction, without a warrant or probable cause, was unconstitutional under the Fourth Amendment.10 The Third Circuit held that the pretrial collection of Mitchells DNA did not violate the Fourth Amendment because it was analogous to fingerprinting and a more accurate predictor of an individuals identity.11 This Comment argues that the Third Circuit erred in holding that warrantless DNA testing, without an arrestees conviction, is constitutional under the Fourth Amendment.12 Part I of this Comment provides an overview of DNA and its usefulness to law enforcement agencies. It also discusses how Congress has slowly expanded the collection of DNA over time to include more offenders of federal crimes in an attempt to compile DNA profiles. Part II of this Comment synopsizes Fourth Amendment jurisprudence and introduces the primary mechanism by which courts uphold the collection of DNA from convicted criminals: the totality-ofthe-circumstances test. Part III describes the Third Circuits decision in Mitchell. Part IV argues that arrestees and pretrial detainees have a reasonable expectation of privacy in their DNA and explicates the unconstitutionality of the warrantless, pretrial collection, seizure, and analysis of Mitchells DNA. Part IV disputes that the government uses DNA solely for identification purposes and posits instead that the government uses DNA for other purposeslike evidence of past and future crimes. Part IV further argues that a probable cause determination in the present, criminal matter does not justify a warrantless search for evidence of other crimes. Part V argues that, absent probable cause or reasonable suspicion,13 when the government seeks to collect DNA from an individual not convicted of a crime, it does exactly that which the Fourth Amendment prohibits. Part V intimates that the Court failed to heed Fourth Amendment jurisprudence and created a dangerous precedent in an effort to justify DNA collection to further criminal investigative efforts. Similarly, Part V demonstrates how the governments interests do not outweigh Mitchells expectation of privacy in his DNA.

Mitchell II, 652 F.3d at 390. Id. at 413-16. 12 See infra Parts IV-V. 13 Reasonable suspicion is an exception to the probable cause requirement of the Fourth Amendment whereby officers can briefly detain an individual, seize property, or perform a pat-down so long as they have reasonable suspicion that a crime has occurred, is occurring, or will occur. Warrantless Searches and Seizures, 91 GEO. L.J. ANN. REV. CRIM. PROC. 1, 36 (2003). To meet the reasonable suspicion standard, the government must point to specific and articulable facts, together with rational inferences drawn from those facts, that reasonably suggest criminal activity has occurred or is imminent. Id. at 37-38.
11

10

455 BAUMAN FINAL (DO NOT DELETE)

4/20/2013 2:13 PM

458
I. Background

New England Law Review

v. 47 | 455

A. What Is DNA and Why Is It Useful? DNA is a component of every cell in the human body and contains an individuals entire genetic makeup.14 There are four chemical bases in which DNA is stored as a code: adenine, guanine, cytosine, and thymine.15 Human beings possess about three billion of these bases and over ninetynine percent of the bases are the same in all people.16 The chemical structure in every individuals DNA is the samewhat differs between individuals DNA is the order of their base pairs.17 The order, or sequence, of these bases determines the information available for building and maintaining an organism, similar to the way in which letters of the alphabet appear in a certain order to form words and sentences.18 Scientists analyze a select set of DNA base pairings that typically vary among individuals to locate matches and to determine whether two DNA samples are from the same person, related people, or non-related people.19 DNA typing or fingerprinting, the method by which scientists extract and identify those genes that differ among individuals,20 has revolutionized forensic science and law enforcement techniques.21 Since DNA is found in every cell in the human body, it is particularly useful to law enforcement because it can be extracted from blood, skin tissue, saliva, hair, and bone.22 Additionally, DNA is a powerful tool because each persons DNA is different from every other individuals except for identical

14 NATL INST. OF JUSTICE, WHAT EVERY LAW ENFORCEMENT OFFICER SHOULD KNOW ABOUT DNA EVIDENCE 1 (1999), available at https://www.ncjrs.gov/pdffiles1/nij/bc000614.pdf [hereinafter NATL INST. OF JUSTICE]. 15 U.S. Natl Library of Med., What is DNA?, NATL INSTS. OF HEALTH (Aug. 30, 2011), http://ghr.nlm.nih.gov/handbook/basics/dna.

Id. Deoxyribonucleic Acid (DNA), NATL HUMAN GENOME RESEARCH INST., http://www.genome.gov/25520880 (last updated June 13, 2012). DNA bases pair up with each other to form what is called base pairs; the adenine with the thymine and the guanine with the cytosine. U.S. Natl Library of Med., supra note 15.
17

16

U.S. Natl Library of Med., supra note 15. Human Genome Project, DNA Forensics, OAK RIDGE NATL LABORATORY, http://www.ornl.gov/sci/techresources/Human_Genome/elsi/forensics.shtml (last updated June 16, 2009).
19 20 See JOHN M. BUTLER, FORENSIC DNA TYPING: BIOLOGY, TECHNOLOGY, AND GENETICS OF STR MARKERS 2-3 (2d ed. 2005).

18

Id. at 2. NATL INST. OF JUSTICE, U.S. DEPT OF JUSTICE, UNDERSTANDING DNA EVIDENCE: A GUIDE FOR VICTIM SERVICE PROVIDERS 2 (n.d.), available at https://www.ncjrs.gov/pdffiles1/nij/bc000657.pdf.
22

21

455 BAUMAN FINAL (DO NOT DELETE)

4/20/2013 2:13 PM

2012

Warrantless DNA and Strip Searches

459

twins. [So] DNA collected from a crime scene can either link a suspect to the evidence or eliminate a suspect, similar to the use of fingerprints.23 Law enforcement officials in the United States can link criminals to DNA evidence found at crime scenes throughout the country via a national database.24 DNA has proven to be a particularly valuable resource in that law enforcement officers may use preserved DNA evidence, which can survive for decades when optimally stored, to reopen unsolved crimes.25 In fact, DNA has been instrumental in the exoneration of wrongfully convicted persons.26 B. The DNA Act The Federal Bureau of Investigation (FBI) Laboratorys Combined DNA Index System (CODIS) began as a software pilot project in 1990,27 serving fourteen state and local crime laboratories.28 In 1994, Congress passed the Violent Crime Control Act.29 Subtitle C of this Act, also called the DNA Identification Act of 1994 (DNA Identification Act), authorized the Director of the FBI to establish a DNA index of all individuals convicted of crimes for identification purposes.30 Pursuant to the DNA Identification Act, the FBI established a National DNA Index System using the CODIS software.31 CODIS enables forensic laboratories on the federal, state, and local levels to link evidence from crime scenes to DNA samples in the index by comparing and exchanging DNA profiles electronically .32 However, after Congress enacted the DNA Identification Act, CODIS did not include federal defenders because the statutory language only authorized creation of the systemnot DNA extraction from individuals convicted of federal crimes.33 Congress, attempting to expand CODIS to

NATL INST. OF JUSTICE, supra note 14. See id. 25 See id. 26 Walter F. Rowe, Commentary, in CONVICTED BY JURIES, EXONERATED BY SCIENCE: CASE STUDIES IN THE USE OF DNA EVIDENCE TO ESTABLISH INNOCENCE AFTER TRIAL, at xv (1996), available at https://www.ncjrs.gov/pdffiles/dnaevid.pdf.
24 27 CODIS Brochure, FED. BUREAU OF INVESTIGATION (July 2010), http://www.fbi.gov/aboutus/lab/codis/codis-brochure-2010.

23

Id. See generally Violent Crime Control and Law Enforcement Act of 1994, Pub. L. No. 103322, 108 Stat. 1796 (codified as amended at 42 U.S.C. 13701-14223 (2006)). 30 Violent Crime Control Act 14132, 210304(a)-(b). 31 See CODIS Brochure, supra note 27. 32 H.R. REP. NO. 106-900, pt. 1, at 8 (2000), reprinted in 2000 U.S.C.C.A.N. 20323, 20325. 33 United States v. Carmichael, 343 F.3d 756, 757 (5th Cir. 2003) (quoting H.R. REP. NO. 106900, pt. 1, at 8 (2000)).
29

28

455 BAUMAN FINAL (DO NOT DELETE)

4/20/2013 2:13 PM

460

New England Law Review

v. 47 | 455

include federal offenders, passed the Antiterrorism and Effective Death Penalty Act of 1996, which authorized the Director of the FBI to collect DNA samples from individuals convicted of (1) federal crimes; (2) crimes committed in the District of Columbia; and (3) crimes committed during military service.34 However, the Department of Justice did not interpret the statute to confer governmental authority to collect DNA samples from convicted federal offenders.35 Consequently, [i]n 1997 Congress passed a bill authorizing appropriations for the Departments of Commerce, State, . . . Justice, the Judiciary, and related agencies . . . that [] required the Attorney General to submit a report to Congress with an implementation plan for collecting DNA samples from persons convicted of Federal sexual offenses.36 This report, submitted in 1998, requested that Congress statutorily enable federal law enforcement agencies to collect DNA samples from persons who committed violent federal crimes while in the District of Columbia or while serving in the military.37 In 2000, Congress responded by passing the DNA Act.38 The DNA Act provided federal grants to states to help reduce the backlog of unanalyzed DNA samples.39 Additionally, the DNA Act mandated the Director of the Bureau of Prisons to collect DNA from persons in federal custody40 or persons convicted of qualifying offenses.41 Similarly, Congress ordered the collection of DNA from each individual on probation, parole, or supervised release.42 The DNA Act authorized the Attorney General, the Director of the Bureau of Prisons, and

34 H.R. REP. NO. 106-900, pt. 1, at 9 (quoting Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 811(a)(2), 110 Stat. 1214, 1312 (1996) (codified as amended at 28 U.S.C 531 (2006)). 35 H.R. REP. NO. 106-900, pt. 1, at 9 (citing Departments of Commerce, Justice, and State, the Judiciary, and Related Agencies Appropriations Act, Pub. L. No. 105-119, 121, 111 Stat. 2440 (codified as amended at 42 U.S.C. 10602 (2006))). 36 Id. 37 Id. (internal citation omitted). 38 Carmichael, 343 F.3d at 757-58. 39 See DNA Analysis Backlog Elimination Act of 2000, Pub. L. No. 106-546, 2(a)(1)-(3), 114 Stat. 2726, 2726 (codified as amended at 42 U.S.C. 14135 (2006)); see also Carmichael, 343 F.3d at 758.

DNA Analysis Backlog Elimination Act of 2000, 3(a)(1). Carmichael, 343 F.3d at 757-58. The Fifth Circuit notes that qualifying offenses include murder; voluntary manslaughter; other homicide offenses; offenses relating to sexual abuse, sexual exploitation or other abuse of children, and transportation for illegal sexual activity; kidnapping; burglary; and any attempt or conspiracy to commit those crimes. Id. at 758 (quoting H.R. REP. NO. 106-900(I), at 19, reprinted in 2000 U.S.C.C.A.N. 2323, 2334). 42 DNA Analysis Backlog Elimination Act of 2000, 3(a)(2) (codified as amended at 42 U.S.C. 14135a(2)).
41

40

455 BAUMAN FINAL (DO NOT DELETE)

4/20/2013 2:13 PM

2012

Warrantless DNA and Strip Searches

461

the probation office responsible for an inmate to use reasonable force to restrain any individual who refused to cooperate during DNA collection.43 A provision of the act made it a Class A misdemeanor for individuals to hinder the collection of their own DNA.44 In 2005 and 2006, Congress expanded the DNA Act to allow the Attorney General to collect DNA samples from individuals who are arrested, facing charges, or convicted.45 In 2009, the Attorney Generals promulgation of regulations expanded DNA collection.46 In relevant part, the regulations provide that [a]ny agency of the United States that arrests or detains individuals or supervises individuals facing charges shall collect DNA samples from individuals who are arrested, facing charges, or convicted.47 Whereas the DNA Act permits DNA collection from persons who are arrested or facing charges, the Attorney Generals regulation mandates collection.48 The most common ground for challenging DNA testing is the Fourth Amendments prohibition of unreasonable searches and seizures.49 To date, the Supreme Court has not addressed the constitutionality of the most recent expansion of the DNA Act.50 Prior to the 2005 and 2006 expansions of the DNA Act, every court that considered the DNA Acts constitutionality under the Fourth Amendment upheld the DNA Act citing either the special-needs exception or the totality-of-the-circumstances test.51 Courts primarily use these two approaches to uphold previous enactments of the DNA Act.52 Nevertheless, U.S. circuit courts are divided over which test to apply in these cases.53

Mitchell II, 652 F.3d 387, 399 (3d Cir. 2011) (quoting 42 U.S.C. 14135a(a)(4)(A) (2006)). 42 U.S.C. 14135a(5)(A). 45 Mitchell II, 652 F.3d at 401 (quoting 42 U.S.C. 14135a(a)(1)(A)). 46 Id.; see generally DNA Sample Collection, Analysis, and Indexing, 28 C.F.R. 28.12 (2011). 47 Mitchell II, 652 F.3d at 401 (alteration in original) (quoting 28 C.F.R. 28.12(b)); ANNA C. HENNING, CONG. RESEARCH SERV., R40077, COMPULSORY DNA COLLECTION: A FOURTH AMENDMENT ANALYSIS 2-3 (2010), available at www.fas.org/sgp/crs/misc/R40077.pdf. 48 Mitchell II, 652 F.3d at 401; HENNING, supra note 46, at 4. 49 John D. Biancamano, Note, Arresting DNA: The Evolving Nature of DNA Collection Statutes and their Fourth Amendment Justifications, 70 OHIO ST. L.J. 619, 629-30 (2009).
44 50 See Robert Molko, 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 W. ST. U. L. REV. 183, 192 (2010). 51 Mitchell II, 652 F.3d at 402-03. See infra Part II (offering a brief description of the totalityof-the-circumstances test). 52 53

43

See Biancamano, supra note 49, at 630. See Mitchell II, 652 F.3d at 402-03.

455 BAUMAN FINAL (DO NOT DELETE)

4/20/2013 2:13 PM

462

New England Law Review

v. 47 | 455

II. A Brief Fourth Amendment Overview The Fourth Amendment to the United States Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.54

[T]he Fourth Amendment protects people, not places.55 When a government official or agent intrudes upon an individuals expectation of privacy, that intrusion may constitute a search or seizure under the Fourth Amendment.56 Justice Harlan, in his concurring opinion in Katz v. United States, stated that the search inquiry involves a two-fold test: first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as reasonable.57 This two-pronged approach constitutes the primary test for determining whether a warrantless search is reasonable under the Fourth Amendment.58 If a court determines that a warrantless search occurred, it must then evaluate the search and seizure according to traditional standards of reasonableness.59 Society may demand that individuals give up certain rights to advance law enforcement objectives; however, when such forfeiture of rights implicates . . . expectations of privacy and security of such magnitude . . . the intrusion may be unreasonable even if likely to produce evidence of a crime.60 While there is a significant public interest in accruing evidence of unsolved crimes, [t]he interests in human dignity and privacy which the Fourth Amendment protects forbid any such intrusions on the mere chance that desired evidence might be obtained.61 Except in well-defined circumstances, warrantless searches and seizures are unreasonable.62

U.S. CONST. amend. IV. Katz v. United States, 389 U.S. 347, 351 (1967). 56 See id. at 351-52. 57 Katz, 389 U.S. at 361 (Harlan, J., concurring) (alteration in original). 58 See Minnesota v. Carter, 525 U.S. 83, 88 (1998) (concluding that to claim a Fourth Amendment protection, defendants must show they have a personal expectation of privacy and that such expectation is reasonable); see also David A. Sklansky, Back to the Future: Kyllo, Katz, and Common Law, 72 MISS. L.J. 143, 156-60 (2002) (discussing the Harlan concurrence and the test utilized by courts in Fourth Amendment analysis).
55 59 60 61 62

54

See Wyoming v. Houghton, 526 U.S. 295, 299-300 (1999). Winston v. Lee, 470 U.S. 753, 759 (1985). See Schmerber v. California, 384 U.S. 757, 769-71 (1966). Skinner v. Ry. Labor Execs. Assn, 489 U.S. 602, 619 (1989).

455 BAUMAN FINAL (DO NOT DELETE)

4/20/2013 2:13 PM

2012

Warrantless DNA and Strip Searches

463

Exceptions include searches incident to arrest63 and searches of items in plain view.64 However, even in those circumstances, the government interests are always balanced against the individuals privacy interests to assess whether the search is reasonable.65 Another exception to the Fourth Amendments warrant requirement which has been the primary method used to uphold prior DNA statutes66 is the totality-of-the-circumstances test.67 The majority of circuit courts have utilized this test to uphold the constitutionality of DNA testing absent a warrant.68 Indeed, courts primarily use this test because a DNA collection cannot be justified under the special-needs exception.69 The majority of

63 United States v. Robinson, 414 U.S. 218, 235 (1973). The scope of a search incident to arrest includes a search of the person as well as the immediate area where the arrest took place. Seth W. Stoughton, Modern Police Practices: Arizona v. Gant's Illusory Restriction of Vehicle Searches Incident to Arrest, 97 VA. L. REV. 1727, 1727-28 (2011). 64 Warrantless Searches and Seizures, 37 GEO. L.J. ANN. REV. CRIM. PROC. 39, 68 (2008). As long as officers presence is lawful, (such as through the execution of a search warrant, arrest warrant, or conducting a valid warrantless search) anything incriminating they can see in plain view is subject to seizure. Id. at 68-71. 65 Skinner, 489 U.S. at 619 (internal citations omitted). 66 Jessica A. Levitt, Note, Competing Rights Under the Totality of the Circumstances Test: Expanding DNA Collection Statutes, 46 VAL. U. L. REV. 117, 137-38 (2011) (Most courts analyze the constitutionality of arrestee DNA sampling statutes under the totality of the circumstances test.). 67 Mitchell I, 681 F. Supp. 2d 597, 606 (W.D. Pa. 2009) revd, 652 F.3d 387 (3d Cir. 2011), cert. denied, 132 S. Ct. 1741 (2012); see also Illinois v. Gates, 462 U.S. 213, 230-31 (1983) (holding that courts should utilize the totality-of-the-circumstances test when determining probable cause).

Mitchell I, 681 F. Supp. 2d at 601. Mitchell II, 652 F.3d 387, 403 (3d Cir. 2011), cert. denied, 132 S. Ct. 1741 (2012); United States v. Sczubelek, 402 F.3d 175, 184 (3d Cir. 2005); accord United States v. Weikert, 504 F.3d 1, 10 (1st Cir. 2007) (rejecting the special needs exception and holding that courts should employ the totality-of-the-circumstances test because DNA collection is primarily tailored to law enforcement purposes). The majority correctly noted that the special needs exception could not justify DNA collection from arrestees and pretrial detainees. See Mitchell II, 652 F.3d at 403. Pursuant to the special needs exception, it is appropriate to search without a warrant when special needs exist beyond those of law enforcement, which render the warrant and probablecause requirements impracticable. New Jersey v. T.L.O., 469 U.S. 325, 351 (1985) (Blackmun, J., concurring); Biancamano, supra note 49, at 632; see, e.g., Griffin v. Wisconsin, 483 U.S. 868, 87276 (1987) (holding that the special needs test applies to probation officers searches of probationers); O'Connor v. Ortega, 480 U.S. 709, 724-26 (1987) (holding that the special needs test applies to searches of public employees); T.L.O., 469 U.S. at 332-33 & n.2, 341 & n.6 (following a majority of courts in holding that the special needs of the school environment require assessment of the legality of such searches against a standard less exacting than that of probable cause.). When the primary purpose of a search is to detect evidence of criminal wrongdoing, the special needs exception does not apply, and a search absent a warrant or probable cause will be deemed unconstitutional. See Ferguson v. City of Charleston, 532 U.S.
69

68

455 BAUMAN FINAL (DO NOT DELETE)

4/20/2013 2:13 PM

464

New England Law Review

v. 47 | 455

circuit courts use this test because DNA collection far exceeds the scope of a probationer or parolees supervision.70 Under this test, courts analyze each case individually, and balance the individuals privacy interests against the degree to which the warrantless search promotes legitimate governmental interests.71 If the governmental interests outweigh the individuals expectation of privacy, then the court will deem the warrantless search constitutional.72 III. United States v. Mitchell A. Factual Background and Procedural History On March 24, 2009, a grand jury indicted Ruben Mitchell (the defendant) on one count of attempted possession with intent to distribute cocaine.73 Following his arrest, the Government sought to collect a DNA sample pursuant to the DNA Act74 and the Attorney Generals accompanying regulation.75 The defendant objected to the pretrial collection of his DNA and argued that it was a violation of his Fourth Amendment rights.76 More specifically, the defendant claimed that the pretrial collection of his DNA constituted a warrantless search that could not be justified under any of the exceptions to the warrant requirement.77 The court stayed collection of Mitchells DNA pending a decision

67, 82-84 (2001) (holding that drug testing expectant mothers is unconstitutional under the Fourth Amendment where the evidence is primarily collected for law enforcement purposes); City of Indianapolis v. Edmond, 531 U.S. 32, 40-42, 51 (2000) (holding specials needs only applies to reasons unrelated to law enforcement and that detecting evidence of general criminal wrongdoing is an insufficient reason for police checkpoints and warrantless searches); Biancamano, supra note 49, at 632-33. Cf. Mich. Dept of State Police v. Sitz, 496 U.S. 444, 447, 449-51, 455 (1990) (applying a balancing test to conclude that police highway checkpoints are constitutional under the Fourth Amendment because the states strong interest in eradicating drunk driving outweighs minimal intrusions upon motorists). It thus follows logicallysince the primary purpose for the collection of DNA samples from arrestees and pretrial detainees is for the furtherance of law enforcement meansthe special needs exception does not apply. Ferguson, 532 U.S. at 82-84; Edmond, 531 U.S. at 40-42, 54. Mitchell II, 652 F.3d at 403. JOEL SAMAHA, CRIMINAL PROCEDURE 242 (8th ed. 2011) (citations omitted). 72 See, e.g., United States v. Kraklio, 451 F.3d 922, 924-25 (8th Cir. 2006). 73 Mitchell I, 681 F. Supp. 2d at 599. 74 See 42 U.S.C. 14135a(a)(1)(A) (2006). 75 Mitchell I, 681 F. Supp. 2d at 599; Mitchell II, 652 F.3d at 390; see DNA Sample Collection, Analysis, and Indexing, 28 C.F.R. 28.12(b) (2009). 76 Mitchell I, 681 F. Supp. 2d at 600. 77 Id. Further, the defendant argued that the DNA Act exceeded Congresss authority under the Commerce Clause. Id.
71 70

455 BAUMAN FINAL (DO NOT DELETE)

4/20/2013 2:13 PM

2012

Warrantless DNA and Strip Searches

465

regarding the DNA Acts constitutionality.78 Upon reviewing the arguments of the Government and the defendant, the district court initially concluded that both the drawing of blood79 and the use of a buccal swab80 for the purposes of DNA collection were searches subject to Fourth Amendment scrutiny.81 The district court rejected the defendants argument that it should employ the special needs exception; rather, the court agreed with the Governments argument and employed the totality-of-the-circumstances test.82 In applying the totality-of-the-circumstances test, the district court concluded that an individual charged with a crime continues to have a high expectation of privacy in his DNA and genetic code.83 Although the Government has a compelling interest in accurate criminal investigations and prosecutions, the court found no compelling reason to unduly burden an individuals legitimate expectation of privacy when he had not been convicted of a crime.84 The court subsequently granted the defendants opposition to collection of his DNA and ruled the DNA Act unconstitutional under the Fourth Amendment.85 B. The Third Circuits Opinion Denying the Defendants Fourth Amendment Claim Sitting en banc, the Third Circuit held that the governments collection of DNA from pretrial detainees and arrestees for identification purposes did not violate the defendants Fourth Amendment rights.86 In so holding, the Third Circuit reasoned that pretrial detainees and arrestees have a diminished expectation of privacy and, as such, a warrantless collection and search of their DNA prior to a conviction is reasonable and valid

Id. at 599. Id. at 600 (citing Skinner v. Ry. Labor Execs. Assn, 489 U.S. 602, 616 (1989)). 80 Id. (citing Padgett v. Donald, 401 F.3d 1273, 1277 (11th Cir. 2005)). Buccal swabs are cotton-tipped applicators used to collect DNA from inside an individuals mouth. NATL MARROW DONOR PROGRAM, QUESTIONS & ANSWERS ABOUT BUCCAL SWABS 1 (2006), available at http://www.lssu.edu/campuslife/documents/buccal_swab_qa_032306.pdf. The FBIs procedure when conducting buccal swab collection involves the repeated process of swiping this applicator inside the individuals mouth, including the gum-line, the cheeks, and underneath the tongue. FCO Buccal Kit, FED. BUREAU OF INVESTIG., http://www.fbi.gov/aboutus/lab/dna-nuclear/fco-buccal-kit (last visited Mar. 24, 2013).
79 81 82 83 84 85 86

78

Mitchell I, 681 F. Supp. 2d at 600. Id. at 602-05. See id. at 609. Id. at 610. Id. at 611. Mitchell II, 652 F.3d at 391, 415-16.

455 BAUMAN FINAL (DO NOT DELETE)

4/20/2013 2:13 PM

466

New England Law Review

v. 47 | 455

under the Fourth Amendment.87 Because law enforcement objectives are the primary justification for the DNA Act, both the district court and the Third Circuit declined to use the special needs approach and instead employed the totality-of-thecircumstances test to determine whether the warrantless search was reasonable.88 In applying the totality-of-the-circumstances test, the majority first analyzed the defendants expectation of privacy.89 The majority conceded that DNA testing requires two searches: the physical collection of the DNA sample and the subsequent analysis of the sample.90 Regarding the first search, the majority considered Supreme Court precedent finding that the intrusion of a blood test is minimal, and reasoned that collection of saliva through a buccal swab is even less invasive.91 In light of this, the majority concluded that the DNA test that the defendant was subjected to was not intrusive.92 The majority declared that individuals on supervised release, like those on probation, do not enjoy the same freedoms to which normal citizens are entitled.93 Regarding the analysis of the DNA sample, the majority conceded that this type of search has the potential to infringe upon an individuals privacy interests.94 However, the majority reasoned that because the analysis uses junk DNA,95 and because of certain safeguards and criminal penalties for misuse, the DNA Act does not significantly invade an individuals privacy.96 Additionally, the majority analogized DNA analysis to fingerprinting; because individuals have a lower expectation of privacy in their identities upon arrest, the majority claimed DNA collection is not unreasonable.97 Next, the majority considered the degree to which [the search] is needed for the promotion of legitimate governmental interests.98 The majority conceded that governmental interests as applied to arrestees and

Id. Mitchell I, 681 F. Supp. 2d at 602, 610; Mitchell II, 652 F.3d at 403. 89 See generally Mitchell II, 652 F.3d at 406-13. 90 See id. at 406-07. 91 Id. at 404, 407 (quoting Skinner, 489 U.S. at 625). 92 Id. 93 Id. at 404. 94 Id. at 407 (internal citations omitted). 95 Junk DNA refers to non-genic stretches of DNA not presently recognized as being responsible for trait coding. Id. at 400 (quoting United States v. Kincade, 379 F.3d 813, 818 (9th Cir. 2004) (en banc) (plurality opinion)). 96 See Mitchell II, 652 F.3d at 408-12. 97 See id. at 410-13. 98 Id. at 413 (alteration in original) (quoting United States v. Knights, 534 U.S. 112, 119 (2001)).
88

87

455 BAUMAN FINAL (DO NOT DELETE)

4/20/2013 2:13 PM

2012

Warrantless DNA and Strip Searches

467

pretrial detainees are not as great as for those who are on supervised release.99 Nevertheless, because DNA is vital to law enforcement investigations and is an important tool in identifying arrestees, the collection of arrestees and pretrial detainees DNA furthers this legitimate government interest.100 Because the majority concluded that the governmental interests in DNA collection outweighed the intrusion on a pretrial detainees and arrestees right to privacy, it held that the collection and analysis of DNA was not an unreasonable search in violation of the Fourth Amendment.101 The Third Circuit reversed the district courts ruling.102 The dissent, arguing that there is no authority suggesting that arrestees and pretrial detainees have a diminished expectation of privacy in their DNA, stated that the majoritys conclusion lacked any evidentiary basis.103 Similarly, the dissent reasoned that the government lacks any legitimate interest in the collection of a pretrial detainees DNA.104 The dissent concluded that the court should have upheld the district courts ruling.105 ANALYSIS IV. The Defendant Had a Legitimate Expectation of Privacy in His DNA. A. The Collection, Seizure, and Analysis of the Defendants DNA Was Unconstitutional. The majoritys short analysis and classification of the first search, the collection of the DNA sample, as minimally intrusive was incorrect.106 While the Supreme Court, and [the Third Circuit], have held in some circumstances that blood tests or other bodily intrusions constitute a minimal invasion of an individuals privacy interests, this does not end the inquiry.107 The importance of informed, detached[,] and deliberate determinations of the issue of whether or not to invade anothers body in search of evidence of guilt is indisputable and great.108 However minimal

See id. Id. at 413-14. 101 Id. at 415-16. 102 Mitchell II, 652 F.3d at 416. 103 Id. at 427 (Rendell, J., dissenting). 104 Id. 105 Id. at 431. 106 See id. at 420. 107 Id. at 425 (emphasis in original) (internal citation omitted). 108 Mitchell II, 652 F.3d at 425 (Rendell, J., dissenting) (quoting Schmerber v. California, 384 U.S. 757, 770 (1966)).
100

99

455 BAUMAN FINAL (DO NOT DELETE)

4/20/2013 2:13 PM

468

New England Law Review

v. 47 | 455

the intrusion might be, intrusion nevertheless infringes upon an expectation of privacy.109 To conclude that, since a slight intrusion of a blood test on an ordinary citizen is constitutional, other governmental actions involving that blood are similarly constitutional is an erroneous extrapolation.110 While the collection of DNAwhether through blood or salivamay not be classified as intrusive, the analysis and maintenance of the DNA is a serious intrusion on an individuals privacy interests.111 Although arrestees and pretrial detainees do not have the same privacy interests as ordinary citizens, they are not entirely without privacy rights, nor should they share the same classification as convicted criminals.112 Further, while the majority found that there were only two searches conducted in connection with DNA collection,113 there is a third intrusion the seizure of the fluid.114 A seizure took place in this instance because there was an interference with the defendants property interest: his saliva.115 Since the defendant had a reasonable expectation of privacy in his DNA, the seizure of the DNA sample was unconstitutional absent a warrant or probable cause.116 A generalized apprehension regarding potential criminal activity does not, without more, justify seizure of property.117 Rather, a seizure of property in which an individual has a legitimate privacy interest is only constitutional if there is a reasonable suspicion that the property contains evidence of criminal activity.118 Because the defendant had a reasonable expectation of privacy in his DNA, this seizure was unreasonable and the court should have deemed the seizure unconstitutional119 Assuming, arguendo, that the first search was a minimal intrusion,120

See Skinner v. Ry. Labor Execs. Assn, 489 U.S. 602, 616 (1989). See Mitchell II, 652 F.3d at 425 (Rendell, J., dissenting); United States v. Sczubelek, 402 F.3d 175, 184 (3d Cir. 2005).
110 111 Charles J. Nerko, Assessing Fourth Amendment Challenges to DNA Extraction Statutes After Samson v. California, 77 FORDHAM L. REV. 917, 935 (2008). 112 See In re Welfare of C.T.L., 722 N.W.2d 484, 491-92 (Minn. Ct. App. 2006). 113 Mitchell II, 652 F.3d at 406. 114 Id. at 422 (Rendell, J., dissenting); see Sczubelek, 402 F.3d at 182 (holding that a collection of an individuals DNA is deemed a search and seizure for Fourth Amendment purposes).

109

See 68 AM. JUR. 2D Searches and Seizures 19 (2010). See id. 117 See Warrantless Searches and Seizures, supra note 64, at 39-40. 118 Id. at 57. 119 See Skinner v. Ry. Labor Execs. Assn, 489 U.S. 602, 616 (1989); Mitchell I, 681 F. Supp. 2d 597, 608 (W.D. Pa. 2009), revd Mitchell II, 652 F.3d 387 (3d Cir. 2011), cert. denied 132 S. Ct. 1741 (2012). 120 See, e.g., Mitchell II, 652 F.3d at 406-07 (determining that the intrusive aspect of collecting a DNA sample is minimal); see Skinner, 489 U.S. at 625 (holding that a blood test is a
116

115

455 BAUMAN FINAL (DO NOT DELETE)

4/20/2013 2:13 PM

2012

Warrantless DNA and Strip Searches

469

and therefore reasonable, the search involving the analysis of the DNA itself was not reasonable.121 While pretrial detainees have a diminished expectation of privacy in their identities,122 they are not without Fourth Amendment protections.123 The real issue in this case was whether arrestees and pretrial detainees have a diminished expectation of privacy in their DNA.124 In the U.S. court system, where individuals are innocent until proven guilty, it is counterintuitive that arrestees and pretrial detainees have a diminished expectation of privacy different than those whose charges were dropped or those who were acquitted from criminal liability.125 Thus, the majority erred in holding that the extraction, seizure, and analysis of the defendants DNA were constitutional.126 B. The Government Does Not Use DNA Solely for Identification Purposes. While the majority claimed the collection of the defendants DNA was solely for the purposes of identification,127 the government uses DNA profiles to aid criminal prosecutions and to solve past and future crimes.128 The statute itself orders FBI administration of the database and orders the storage of information so that criminal justice agencies may access it.129 Further, the applicable section of the statute is entitled Index to facilitate law enforcement exchange of DNA identification information.130 Accordingly, had the Court objectively analyzed the statutory language and proper jurisprudence, it would have deemed the DNA Act

minimal intrusion); United States v. Sczubelek, 402 F.3d 175, 184 (3d Cir. 2005) (reasoning that a blood test involves minimal intrusion). 121 Mitchell I, 681 F. Supp. 2d at 608-09. 122 Mitchell II, 652 F.3d at 412 ([A]rrestees possess a diminished expectation of privacy in their own identity, which has traditionally justified taking their fingerprints and photographs.). See In re Welfare of C.T.L., 722 N.W.2d 484, 491-92 (Minn. Ct. App. 2006). See Mitchell II, 652 F.3d at 422 (Rendell, J., dissenting). 125 See In re Welfare of C.T.L., 722 N.W.2d at 491-92. 126 See supra text accompanying notes 104-24. 127 Mitchell II, 652 F.3d at 391, 415-16. 128 See id. at 422-23 (Rendell, J., dissenting). 129 42 U.S.C. 14132(a)-(b) (2006); Defendants Motion in Opposition to Pre-Trial DNA Collection at 20, United States v. Mitchell, 681 F. Supp. 2d 597 (W.D. Pa. 2009) (No. 2:09-cr00105) [hereinafter Defendants Motion in Opposition to DNA Collection] (citing 42 U.S.C. 14132(a)-(b)(3)(A)).
124 123

42 U.S.C. 14132 (2006). See also Almendarez-Torres v. United States, 523 U.S. 224, 234 (1998) (noting that the title of a statute and the heading of a section are used to resolve doubt regarding the meaning of the statute or section).

130

455 BAUMAN FINAL (DO NOT DELETE)

4/20/2013 2:13 PM

470

New England Law Review

v. 47 | 455

unconstitutional.131 Although arrestees and pretrial detainees do not share the same rights as ordinary citizens,132 they do enjoy greater protections than individuals who were tried and convicted of the offenses with which they were charged.133 The critical distinction is that a jury has not found an arrestee or pretrial detainee guilty beyond a reasonable doubt.134 Since an impartial jury has not determined innocence or guilt, arrestees and pretrial detainees are entitled to one of the greatest protections that the U.S. Constitution affords arrestees: the presumption of innocence.135 An individual does not automatically forfeit his or her Fourth Amendment rights upon arrest (with the exception of a search incident to lawful arrest).136 While arrestees have a diminished expectation of privacy in their identities, compar[ing] the fingerprinting process and the resulting identification information obtained therefrom with DNA profiling is pure folly.137 The practical uses of fingerprints and DNA are different: the purpose of fingerprinting is to identify an individual,138 and the sole purpose of collecting DNA is for criminal investigations.139 Fingerprinting does not intrude on a persons privacy or thoughts in a way that constitutes an interrogation or a search.140 DNA, however, intrudes upon an individuals private life, revealing familial lineage, genetic conditions and traits, sexual orientation, and criminal tendencies.141 In Mitchell II, the

131 See Tracey Maclin, Is Obtaining an Arrestees DNA a Valid Special Needs Search Under the Fourth Amendment? What Should (and Will) the Supreme Court Do?, 34 J.L. MED. & ETHICS 165, 181 (2006).

See Mitchell I, 681 F. Supp. 2d at 607-08. Id. at 606 n.6 (citing Friedman v. Boucher, 580 F.3d 847, 856-57 (9th Cir. 2009)). 134 Mitchell II, 652 F.3d at 421 (Rendell, J., dissenting). 135 Id. at 422. 136 Id. Searches incident to arrest are both an exception to the warrant requirement of the Fourth Amendment and are reasonable under the same. United States v. Robinson, 414 U.S. 218, 235 (1973). The search incident to arrest exception, however, is not without limitationit places spatial and temporal restrictions on searches incident to arrest; excuses the warrant requirement only when the search is substantially contemporaneous with the arrest; and operates only when the search is confined to the immediate vicinity of the arrest. 6A C.J.S. Arrest 64 (2011).
133

132

Mitchell I, 681 F. Supp. 2d at 608. John Edgar Hoover, Fingerprint Everybody? YesSays John Edgar Hoover, THE ROTARIAN, Jan. 1937, at 16.
138

137

Mitchell I, 681 F. Supp. 2d at 610. RON C. MICHAELIS ET AL., A LITIGATORS GUIDE TO DNA: FROM THE LABORATORY TO THE COURTROOM 265 (2008) (quoting Davis v. Mississippi, 394 U.S. 721, 727 (1969)). 141 Mitchell I, 681 F. Supp. 2d at 608 (citing Leigh M. Harlan, When Privacy Fails: Invoking a Property Paradigm to Mandate the Destruction of DNA Samples, 54 DUKE L.J. 179, 188-89 (2004)).
140

139

455 BAUMAN FINAL (DO NOT DELETE)

4/20/2013 2:13 PM

2012

Warrantless DNA and Strip Searches

471

majoritys reasoning regarding DNA is flawed because DNA is not always a better indicator of an individuals identity.142 In fact, fingerprinting may be a more accurate identification tool because every individuals set of fingerprints is distinct.143 For example, while monozygotic twins share the same DNA, and so cannot be distinguished on that basis, their fingerprints may distinguish their identities.144 Because fingerprints can sufficiently identify an individual, requiring a DNA sample to serve the same purpose is superfluous.145 DNA is a tool that applies far beyond confirmation of an individuals identity;146 it is a tool that law enforcement can use to prevent and deter future conduct, and use as evidence of past crimes.147 Further, the legislative history of the DNA Act reveals that the government does not use DNA merely for identification purposes.148 Congress, in the course of developing the DNA Act, discussed the extensive quantity of information that the collection of DNA yields.149 Similarly, the Department of Justice acknowledged that there is information in DNA that fingerprints alone cannot reveal.150 More alarming is that the analysis of DNA reveals not only information pertaining to the individual tested, but also to anyone who shares that bloodline.151 Additionally, in instances where there is no DNA match, the FBI can use the collected DNA to identify individual[s] who [are] demonstrably innocent of the crime . . . in the hope of finding new leads to the identity of the actual perpetrator.152 Further, the governments collection of junk DNA could easily be misused or abused in the future.153 Junk DNA has become an archaic term because it is now known that this type of DNA is filled rife with

See id. at 608-09 (comparing the use of fingerprints and DNA for identification purposes and discussing the major differences).
143 Simon A. Cole, Grandfathering Evidence: Fingerprint Admissibility Rulings from Jennings to Llera Plaza and Back Again, 41 AM. CRIM. L. REV. 1189, 1198 (2004). 144 Mitchell I, 681 F. Supp. 2d at 608 (citing C.H. Lin et al., Fingerprint Comparison. I: Similarity of Fingerprints, 27 J. FORENSIC SCI. 290 (1982)); accord United States v. Sczubelek, 402 F.3d 175, 181 n.2 (3d Cir. 2005); see also Cole, supra note 143.

142

Mitchell I, 681 F. Supp. 2d at 608-09. Mitchell II, 652 F.3d 387, 420-21 (3d Cir. 2011) (Rendell, J., dissenting). 147 Brief for the United States at 42, Mitchell II, 652 F.3d 387 (No. 09-4718). 148 See Mitchell II, 652 F.3d at 413-15. 149 H.R. REP. NO. 106-900, pt. 1, at 53 (2000). 150 DNA-Sample Collection and Biological Evidence Preservation in the Federal Jurisdiction, 73 Fed. Reg. 74932, 74933 (Dec. 10, 2008) (codified at 28 C.F.R. 28 (2008)). 151 H.R. REP. NO. 106-900, at 53 (minority views). 152 Brief for Appellee at 36, United States v. Mitchell, 652 F.3d 387 (3d Cir. 2011) (No. 094718) (emphasis in original).
146 153

145

Mitchell II, 652 F.3d at 424 (Rendell, J., dissenting).

455 BAUMAN FINAL (DO NOT DELETE)

4/20/2013 2:13 PM

472

New England Law Review

v. 47 | 455

information.154 What scientists used to call junk DNA actually contains information about what builds organisms, among other things.155 The term junk merely refers to the fact that this DNA may not cause physical traits; however, the DNA still contains information regarding an individuals genetic structure.156 The evolution and potential abuse of junk DNA should have been a factor in the majoritys totality-of-thecircumstances balancing test.157 Even though an acquittal or a nolle prosequi158 results in DNA record expungement,159 these records remain in the DNA database if there is a real interest in maintaining records of arrestees identities.160 This alone serves as an admission that the fact of conviction, not of mere arrest, justifies a finding that an individual has a diminished expectation of privacy in his DNA.161 Similarly, arrests based on mistaken identity are too common, and the subjects of these erroneous arrests would be subject to a search of their DNA before standing trial.162 Although their DNA would be expunged, pursuant to the DNA Act, the government may retain the sample indefinitely.163 C. A Finding of Probable Cause for One Crime Does Not Validate a Search for Evidence of Other Crimes. The majority in Mitchell II concluded that the collection of the

154 See Clive Cookson, Regulatory Genes Found in Junk DNA, FIN. TIMES (London), June 4, 2004, at 11 (reporting that junk DNA actually contains essential functions which scientists are just discovering); Justin Gillis, Genetic Code of Mouse Published; Comparison with Human Genome Indicates Junk DNA May Be Vital, WASH. POST, Dec. 5, 2002, at A1 (reporting that scientists may have to abandon the term junk DNA because of new discoveries concerning the utility of these stretches of genetic material); Joe Palca, Dont Throw It Out: Junk DNA Essential in Evolution (NPR radio broadcast Aug. 19, 2011) [hereinafter Dont Throw It Out], available at http://www.npr.org/2011/08/19/139757702/dont-throw-it-out-junk-dna-essential-inevolution. 155 Faye Flam, Hints of a Language in Junk DNA, 266 SCIENCE 1320, 1320 (1994) (stating that science has been making strides in analyzing junk DNA and in the future more uses will likely be discovered); see also HENNING, supra note 47, at 13; Dont Throw It Out, supra note 153.

Simon A. Cole, Is the Junk DNA Designation Bunk?, 102 NW. U. L. REV. COLLOQUY 54, 56-57 (2007), available at http://www.law.northwestern.edu/lawreview/colloquy/2007/23/. 157 Mitchell II, 652 F.3d at 424 (Rendell, J., dissenting). 158 Nolle prosequi refers to dropping the charges or abandoning a suit against a defendant. BLACKS LAW DICTIONARY 1147 (9th ed. 2009).
159 160 161 162 163

156

Mitchell II, 652 F.3d at 399 (majority opinion). Id. at 423 (Rendell, J., dissenting). Id. (emphasis in original). Id. at 420. Id. at 420-21; see also HENNING, supra note 47, at 14.

455 BAUMAN FINAL (DO NOT DELETE)

4/20/2013 2:13 PM

2012

Warrantless DNA and Strip Searches

473

defendants DNA was reasonable because a grand jury indicted the defendant.164 This conclusion is misguided because a grand-jury indictment does not justify the collection of DNA for use in connection with other crimes for which there is no finding of probable cause.165 Other than situations in which law enforcement needs the sample for evidentiary purposes related directly to a criminal investigation,166 a grand-jury indictment would not justify a pretrial collection of DNA absent exigency167 since [i]t has been observed that a Grand Jury can indict anyone or anythingeven a ham sandwich.168 Probable cause for one crime does not provide the probable cause sufficient to sustain a search for a separate crime.169 Absent a search warrant, there is no probable cause to search an area outside of an individuals immediate control during an arrest.170 The collection of DNA for identification purposes is akin to searching a home; what it really does is collect substantial amounts of information law enforcement may use for criminal investigations to solve past or future crimes.171 Neither probable cause nor reasonable suspicion would justify a warrantless search of an individuals home for the purposes of obtaining fingerprint identification.172 Since fingerprinting is not analogous to DNA collection, and neither reasonable suspicion nor probable cause exists in Mitchell II, the majoritys conclusion that arrestees have a diminished expectation of privacy in their DNA is unreasonable.173 The majoritys application of the totality-of-the-circumstances test was misguided, and therefore the extraction of the defendants DNA constituted an illegal search under the Fourth Amendment.174

Mitchell II, 652 F.3d at 412 n.22 (majority opinion). Id. at 427 (Rendell, J., dissenting). 166 See 36 AM. JUR. PROOF OF FACTS 3d 12 (1996) (providing an example where a DNA sample would be needed for evidentiary purposes).
165 167 Cf. State v. Madplume, 150 P.3d 956, 959 (Mont. 2007) (providing an example where warrantless collection of a victims DNA on an arrestees fingertips was held constitutional because there was an exigency present, namely, the arrestee could easily have disposed of the evidence).

164

People v. Carter, 566 N.E.2d 119, 124 (N.Y. 1990) (Titone, J., dissenting) (emphasis in original) (internal citations omitted). 169 See Mitchell II, 652 F.3d at 427 (Rendell, J., dissenting). 170 See Chimel v. California, 395 U.S. 752, 763 (1969). 171 Mitchell II, 652 F.3d at 423 (Rendell, J., dissenting) (quoting United States v. Kincade, 379 F.3d 813, 857 n.16 (9th Cir. 2004) (en banc) (Reinhardt, J., dissenting)).
172 173 174

168

See Hayes v. Florida, 470 U.S. 811, 817 (1985). See Mitchell II, 652 F.3d at 425-27 (Rendell, J., dissenting). See supra Part IV; infra Part V.

455 BAUMAN FINAL (DO NOT DELETE)

4/20/2013 2:13 PM

474

New England Law Review

v. 47 | 455

V. The Governments Interests Do Not Outweigh the Defendants Expectation of Privacy. While the DNA Act authorizes law enforcement to collect DNA in an effort to search for evidence of crimes unrelated to that for which an individual was arrested without a judicial determination of probable cause,175 [n]ever once in over two hundred years of history has the Supreme Court approved of a suspicionless search designed to produce ordinary evidence of criminal wrongdoing for use by the police.176 In fact, the Supreme Court has regarded law enforcement interests as an inherently suspect type of government interest for Fourth Amendment purposes.177 The Framers of our Constitution knew that blanket searches and seizures for investigative and law enforcement purposes would subject innocent persons to harassment and privacy invasions.178 This kind of government conduct fueled writs of assistance cases and formed the basis for the Fourth Amendment.179 [I]n light of the Fourth Amendment text and the Supreme Courts guidance in interpreting it, the Governments interest in evidence-gathering and crime-solving deserves little or no weight in . . . Fourth Amendment review.180 While it is true that the mandatory collection of DNA may exculpate innocent persons of the crimes for which they have been charged,181 an innocent individual will volunteer his or her DNA for testing absent a government mandate.182 The occasional exculpation of innocent individuals cannot justify the DNA Acts intrusiveness.183 Where rights secured by the Constitution are involved, there can be no rule making or legislation which would abrogate them.184 Under the majoritys application of the totality-of-the-circumstances test, anyone who experiences a diminished expectation of privacy is

175 People v. Buza, 129 Cal. Rptr. 3d 753, 755 (Cal. Ct. App.)., review granted, 262 P.3d 854 (Cal. 2011).

Kincade, 379 F.3d at 854 (Reinhardt, J., dissenting). Mitchell II, 652 F.3d at 428 (Rendell, J., dissenting) (citing City of Indianopolis v. Edmond, 531 U.S. 32, 42 (2000)). 178 Kincade, 379 F.3d at 851-52 (Reinhardt, J., dissenting) (quoting Davis v. Mississippi, 394 U.S. 721, 726 (1969)).
177 179 180 181 182 183 184

176

See SMITH, supra note Error! Bookmark not defined., at 2-5. Mitchell II, 652 F.3d at 429 (Rendell, J., dissenting). Id. at 404 (majority opinion). See United States v. Sczubelek, 402 F.3d 175, 199 (3d Cir. 2005) (McKee, C.J., dissenting). See id. Miranda v. Arizona, 384 U.S. 436, 491 (1966).

455 BAUMAN FINAL (DO NOT DELETE)

4/20/2013 2:13 PM

2012

Warrantless DNA and Strip Searches

475

susceptible to DNA collection, analysis, and CODIS cataloguing.185 This could include, among other persons, public school students who participate in extracurricular activities, and drivers and automobile passengers.186 Allowing such searches would undermine the principles underlying the Fourth Amendment and provide a perverse justification for finding routine searches of arrestees homes constitutional so as to further the governments crime-solving and evidence-gathering objectives.187 Therefore, the majority wrongly decided that the governments interest in pretrial collection of the defendants DNA outweighs the defendants expectation of privacy in his DNA.188
The makers of our Constitution undertook . . . . to protect Americans in their beliefs, their thoughts, their emotions[,] and their sensations. They conferred, as against the government, the right to be let alonethe most comprehensive of rights and the right most valued by civilized men. To protect, that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.189

CONCLUSION The Fourth Amendment sets forth the guarantee that people have a right to be secure in their persons . . . against unreasonable searches and seizures.190 In an attempt to obtain evidence of other crimes, the DNA Act overlooks this right and subjects arrested individuals to warrantless and suspicionless searches and seizures. As such, the Third Circuit erred in holding the DNA Act constitutional under the Fourth Amendment. Further, analogizing DNA profiling to fingerprinting is dangerous folly. While arrestees and pretrial detainees have a diminished expectation of privacy in their identity as compared to an ordinary citizen, they have greater privacy rights than those who have been tried and convicted. The government cannot justify the collection and analysis of arrestees and pretrial detainees DNA absent a warrant or probable cause. Even though the government has a legitimate interest in law enforcement objectives, including criminal investigations, the Supreme Court has never upheld a warrantless search absent a warrant or probable cause. The Framers

185 See United States v. Kincade, 379 F.3d 813, 844 (9th Cir. 2004) (en banc) (Reinhardt, J., dissenting). 186 187 188 189 190

Mitchell II, 652 F.3d at 429 (Rendell, J., dissenting). Id. See supra notes 174-86 and accompanying text. Olmstead v. United States, 277 U.S. 438, 478 (1928). U.S. CONST. amend. IV.

455 BAUMAN FINAL (DO NOT DELETE)

4/20/2013 2:13 PM

476

New England Law Review

v. 47 | 455

designed the Fourth Amendment to protect against these types of suspicionless searches. The court failed to follow Supreme Court precedent when it upheld the constitutionality of the DNA Act. Because no exigency justified the collection of Mitchells DNA before his conviction, the Third Circuit should have upheld the district courts judgment and ruled the DNA Act unconstitutional.