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 20123
(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.