Appeals Court Declares Federal DNA Act Unconstitutional

Appeals Court Declares Federal DNA Act Unconstitutional

I have to admit that although I like the idea of the DNA tests, the logic of the court is not totally unreasonable. But the distinction I would draw between their USSC rulings and the case at hand is that in the former, the people involved have not been convicted of any crime. In the latter, they have.

I am NOT saying that the fact of being convicted of a crime is a stronger presumption of guilt thus opening the way for loss of privacy. But what I would say is that once you are convicted of a crime, you lose certain rights, as part of your punishment. I don’t see anything sacred about the right to privacy which says that this cannot be forfeited. If Congress passed a law that said that anyone convicted of any crime must wear a duncecap on their head, I would think that is constitutional, even though they could not pass a law requiring all pregnant women, or people pulled over in traffic stops, to wear duncecaps. Same goes for the loss of privacy involved in a DNA test.

So I disagree with this court’s decision, and think it is not supported by the USSC precedents on which it is (apparently) based.

With their record it will probably be overturned again anyway.

Dang. Didn’t mean to hit submit. IMO this is no different than taking fingerprints for purpose of identification. DNA is just more effective.

I fail to see how this is different from fingerprints, which are routinely collected and archived from every prisoner in the country. DNA is just another means of identification, not an improper attempt to collect incriminatory evidence without a warrant.

Have any circuits beside the 9th ruled on this issue?

Good point about fingerprints. I only know about this ruling from the cited article.

I would guess that the court might distinguish fingerprints in either of two ways. Either because fingerprints are less invasive than DNA, and are more analogous to mugshots. Or because fingerprints have a purpose in tracking down the guy for this crime, should he escape or whatnot. The DNA is intended to catch the guy in other crimes for which there is nothing to suggest that he committed.

The court’s argument that DNA fingerprinting is like analyzing a blood sample for illegal drugs is wrong. The DNA sample is not being analyzed for evidence of a crime or evidence of some undesireable trait, it is simply being used for identification purposes in exactly the same way as fingerprints, photos and voice prints.

There is also a clear precedent for curtailing some civil rights of felons, such as gun ownership, for reasons of public safety.

A DNA sample does not have to be invasive. You can collect it from other sourses other than blood.

I agree with WereOtter here – DNA fingerprinting should not be any different than actual fingerprinting. The reason searches are limited is because they run the risk of revealing private or embarassing information about the innocent (or information about criminals which is unrelated to their crime or the ability of the state to prosecute it). This does not pose that problem (or it least it won’t if safeguards are developed).

Of course, the Supreme Court got a similar issue wrong in Kyllo v. U.S. (infrared viewing of heat lamps), so I have no confidence they’ll make the right decision when they consider this case. (Although they always enjoy overruling the 9th Circuit.)


Well, in this case the DNA sampling is invasive. The samples are collected by a blood draw, and that’s a very important point, in the context of the case.

The law is pretty settled that invasive procedures on the body constitute searches for Fourth Amendment (4A) purposes, and that has traditionally included blood draws, regardless of the purpose of the draws. So it’s not really like fingerprinting, because fingerprinting isn’t a “search” of the inside of your body but rather a recording of aspects of the outside of your body – aspects that are out in public for anyone to see, who would look closely enough. Physical searches are not limited only (or even primarily) because of concerns about “the innocent” or anyone other than the person having the right to privacy; they are limited because each of us has a reasonable expectation of privacy regarding the insides of our own bodies. The was no disagreement in the panel regarding whether this is a search or not for 4A purposes; it is.

So the question in this case isn’t whether there was a search, but whether a 4A search can be justified in the absence of individualized suspicion. The Ninth Circuit panel held that it could not be, but that holding conflicts with another, earlier panel decision.

In reaching this decision, the panel effectively overruled a conflicting decision of another Ninth Circuit panel, as the dissent points out. The majority attempts to distinguish the other case and claim it is not overruling it, just explaining why it doesn’t apply, but I agree with the dissent that this explanation doesn’t wash; the other case (Rise, I think) is clearly on point. (The other case is discussed at length in the dissent.) So I’ll be interested to see what happens next; I assume the matter will go before the entire court for consideration.

The case at issue is not fully identified in the article: it is U.S. v. Kincade, (9th Cir. No. 02-50380, Oct. 2, 2003). Here’s a link to the decision: Link

This sounds like a rationalization to me, Jodi. Putting to the side for the moment that the DNA database is actually created by blood draws, it seems like it’d be a hell of a lot easier (not cheaper but easier) to get a DNA fingerprint of a guy just by following him until he sheds a hair. Indeed, I think you’d be hard-pressed to call that a search at all (plain view doctrine). IMO, the only reasons we viscerally think of fingerprints as trivially invasive but DNA typing as very invasive are 1) the long history of fingerprinting and 2) the needle. The second problem can be avoided by changing the procedures, the first is irrational and we just have to get over it.

IMO, the 4th Amendment exists to protect people from invasions of their privacy for no particularly good reason. Again, assuming that procedures were changed to avoid the needle, I don’t see any privacy interest here at all. Who cares what your DNA says? (OK, I know that actually a lot of people – like your insurance company and employer – will care because your genome can predict future health somewhat, but let’s rewrite the statute so that this type of information is illegal to disclose, or even for the state to study.) The fact that some strand of my genome is GATTCC is about as meaningless (except as a form of identification) as the fact that there’s a whorl on my left pinkie.

I will admit that my view of the 4th A. is not necessarily the majority one.



But they don’t; that’s the point. Blood draws are always searches; they’re invasive procedures. I have no idea whether the court would have reached the same decision under different facts.

Well, I may be wrong, but I’m pretty sure you have to actually be able to “view” something for it to be in plain view and that plain view doesn’t require extraordinary testing. How would you determine DNA without testing?

This isn’t a legal argument, but it seems to me common sense dictates that being stuck with a needle is more invasion, and not just “trivially” so, than having ink rubbed on your fingertips. If they changed the procedures so that blood was not being drawn, maybe the answer would be different, but that’s not the fact situatiion the court was presented with. And the panel was not “rationalizing” to deal with the case before them, instead of some other case that wasn’t.

You don’t have to come up with a practical “reason” not to have your privacy invaded; the “reason” is that you have a constitutional right to privacy. To say that your view of the 4th Amendment is not the majority one is an understatement.

I don’t believe there’s even much argument about whether a blood draw is a 4A seaach, in any of the courts. It is, because we all have a reasonable expectation of privacy within our own bodies. What place, what thing, could be more private than that? I absolutely agree with this: to compel a person to involuntarily disclose blood type, sugar levels, DNA, digestive history, or anything else they might be able to divine from extracting bodily fluids is clearly a search, IMO. The answer might be different if you’re talking about things the person has left behind, like saliva or hair or even shed blood, but that is not what we’re talking about here.

Prison inmates are already subjected invasive procedures such as strip searches, body cavity searches, cell searches, phone call monitoring and AIDS testing. Admittedly, these are mainly for the purpose of safe administration of the prison, but in such a context, I think it’s a stretch to call a DNA sample unreasonably invasive.

And if it’s not OK to take a blood sample from a convicted criminal, why is it OK for a corporation to demand a urine sample from me as part of my job application? Why does an employer have an even greater power to invade my body than law enforcement does? I’m not even suspected of a crime, never have been convicted of a crime, but private enterprise can search my urine for evidence of criminal activity and deny me access to employment if I don’t consent to this search. Ironic isn’t it?


The question isn’t whether the needle stick is “unreasonably invasive;” having determined that it is invasive, and having determined that the defendant had a reasonable expectation of privacy, the question becomes whether the end to be achieved justifies the invasion. The court held that merely compiling a database, with no reason to believe this particular parolee committed any other particular crime, did not justify the invasive procedure.

Body cavity searches, cell searches, strip searches, and invasive blood work are all still 4A searches even when done on prisoners – but they are acceptable because (a) the scope of the right to privacy enjoyed by a prisoner is much more limited than that enjoyed by a non-prisoner, and (b) there are legitimate penological reasons for the searches that have been held to justify them. So in those cases, you have a weak expectation of privacy, and strong reason to search. In this case, in constrast, the defendant was a parolee – not a prisoner – and the court held that he had a greater right to privacy (and a greater expectation of privacy) than a prisoner would. And, of course, all the penological justifications for invading the privacy of prisoners do not apply outside the prison anyway.

Not terribly ironic, no. The 4th Amendment, like much of the Constitution, restrains government action, not private action. Generally speaking, if you are applying for a job with a private corporation, they can ask you to waive your right to privacy as a condition of employment. You don’t have to do it, of course; you can choose not to work there, instead. So the corporation has power to invade your privacy because you give it to them, and the government does not generally have that power (in the absence of a sufficient reason) because it (the government) is restrained by 4A.

Haven’t the courts determined that my rights to privacy also protect me from unreasonable invasions by other individuals and businesses? For example, my neighbor or my supervisor can’t bug my phones or place cameras in my bathroom?

I don’t want to go OT, here, but I’m trying to put this issue in a reasonable perspective, from my layman’s POV. A convict shouldn’t have more protection under the law than I do, regardless of who’s doing the invading. imho anyway.

I can see the distinction you’re making between inmates and parolees. Though I’m pretty sure parolees are somtimes subjected to drug testing and electronic monitoring.

The police already have database records on these individuals, the DNA is just a new type of identification that is added to the criminal’s record.

And it’s no more invasive than innoculations that school children are required to get.

And it’s every bit as necessary for the public safety. Repeat offenders are responsible for a disproportiate share of the crimes committed in this country, are charged for only a fraction of the crimes they actually commit, and actually serve time for an even smaller fraction. It’s the whole reason for the 3-strikes sentencing rules, which have been a major factor in the reduction of crimes rates in the last decade.

I’ll concede for the time being that the Court’s ruling was not incorrect upon the facts as presented (namely, the blood draw aspect). I’m more interested in the policy argument.

You misread me. I don’t say that a person is required to present a reason before he is allowed to refuse a state invasion of his privacy. My position is that the 4th A. protects privacy as a baseline but that the government can nonetheless invade said privacy if it has a good reason to do so (a/k/a probable cause).

The purpose of the Amendment is to protect legal activity which the person being searched would wish to keep private and it does so by establishing a threshold for searches which the gov’t must meet before it may engage in them. The Amendment does not offer any protection for illegal activity, which is why the police are allowed to search you if they can demonstrate that you’re probably engaged in illegal activity. Therefore, for something to be a search, it must have the potential to reveal information about the subject other than mere evidence of criminal activity. The genome simply isn’t interesting information – absent the considerations I note above, the content thereof is a meaningless string of digits. The only thing it is useful for is in that it provides a clue to identity, which is a form of evidence of criminal activity. The long history of fingerprinting shows that evidence of identity, without more, is not a search, because there is simply nothing interesting going on in the shape of your fingerprints.


Well, if you go there, Cliffy, there’s a whole lot more “interesting” stuff going on with your DNA than with your fingerprints. For example, the police could discover that you are XXY, and therefore most probably infertile. This is very private information of the sort that is not available via fingerprints.

As I noted above, ENugent, I believe this can be overcome by strict controls on the use of the DNA information, but maybe not.


as anyone who knows my posting history knows, I’m extremely liberal regarding fairness towards prisoners. But I think that, while perhaps unconstitutional, blood collection in order to establish a DNA database for future reference is okay by me. Even were I falsely convicted of a crime, I would not think this would be all that above the punishment of confinement to impose. After all, there is a much lower chance that this will again be falsely used against me than in other examples of evidence collection.


That’s generally based on statutes. Meaning, you have a right to privacy from other private citizens because the legislature of your state (assuming you’re an American) or in some cases Congress (like regarding health records and education records) have created that right of privacy for you. (Note that some state constitutions also have an explicit right to privacy, which the federal constitution does not.) There is no federal constitutional reason your neighbor can’t bug your phone, because the constituiton generally constrains government action only.

He doesn’t. The government can’t take your blood without a warrant and a compelling reason, either. Nor, for that matter, can any private citizen unless you agree to it. Can they coerce you into agreeing, like by making employment contingent on it? Sure, so long as your local laws allow that.

Yes, they are. Electronic monitoring is not as invasive, and drug testing (even if involving a blood draw) would probably be okay because it involves the penological interests of the state in supervising the particular parolee and in making sure he doesn’t break parole. That’s different from merely compiling a database that is entirely unrelated to the crime the parolee is serving time for, or with the administration of his parole.

It’s not the database that’s the problem, it’s the needle stick, and the question of whether the database alone justifies the needle stick. The court held it didn’t. This is not a slam dunk opinion, by the way; the court could easily have held the opposite.

And it’s no more invasive than innoculations that school children are required to get.

:confused: How could putting something into a body, as opposed to taking something out, invade a person’s privacy?

Yeah, well, here you’re just arguing they made the wrong decision, because the reason they held was insufficient for the invasion is IYO sufficient. And I have no quarrel with that; I think it’s a toss-up and I’m just trying to explain that the court’s decision was not as easy – or as idiotic – as it might at first appear.