Article Of Interest - A Better Balancing: Reconsidering Pre-Conviction DNA Extraction from Federal Arrestees, By Kevin Lapp & Joy Radice

In 2000, the federal DNA Analysis Backlog Elimination Act authorized for the first time compulsory extraction of DNA from federal offenders, covering those convicted of a “qualifying Federal offense” and who were still in custody or under post-conviction supervision. Federal law initially prohibited DNA profiles of arrestees from being placed in CODIS. In 2006, Congress significantly expanded DNA collection, authorizing the Attorney General to promulgate regulations for collecting DNA from individuals "arrested, facing charges, or convicted." The Department of Justice issued a final rule in 2008 that directs federal agencies to collect DNA samples from individuals who are arrested, facing charges, or convicted, regardless of the underlying charge or offense. Kevin Lapp & Joy Radice, A Better Balancing: Reconsidering Pre-Conviction DNA Extraction from Federal Arrestees, North Carolina Law Review Addendum, Vol. 90, p. 157 (2012).

In A Better Balancing, Lapp and Radice, Acting Assistant Professors of Lawyering at the New York University School of Law, take issue with this federal law in large part through deconstructing the analogy that courts have drawn between compulsory DNA collection and compulsory fingerprint collection. I thoroughly agree with their deconstruction and think that an analogy can be drawn between the progression from suspicionless, warrantless fingerprint collection to suspicionless, warrantless DNA collection and the progression from suspicionless, warrantless visual surveillance to suspicionless, warrantless GPS surveillance, a practice that was recently halted by the Supreme Court in United States v. Jones. In both cases, to say that we are dealing with an apples-to-apples comparison only makes sense if the the latter apple is the fruit of the poisonous tree.

In their artcle, Lapp and Radice note that

Supporters of compulsory DNA collection frequently begin their defense of the practice by analogizing DNA profiling to fingerprinting. According to the analogy, the uniqueness of the thirteen STR loci of the DNA profile is akin to the distinctive arches, loops, and whorls of fingerprints. The intentional selection of this so-called "junk DNA" for the DNA profile means that, like a fingerprint, a DNA profile provides "precise information about identity but little or no other personal information." Completing the analogy, DNA profiles are stored in a database, just like fingerprints, and are run against a database to search for matches to evidence from unsolved crimes, just like fingerprints.

The use of the fingerprint analogy goes back to the early promoters of DNA identification methods, who called the new technique “DNA fingerprinting” in an intentional attempt to “piggyback on the tremendous power that fingerprinting was known to have.” Their efforts to fix the metaphor have been successful. The DNA profiling-fingerprint analogy plays a prominent role in DNA case law. For example, in upholding DNA extraction from those convicted of nonviolent crimes and sentenced to only probation, the Second Circuit stated that "the governmental justification for this form of identification...relies on no argument different in kind from that traditionally advanced for taking fingerprints and photographs." In endorsing the analogy, the Third Circuit Mitchell majority concluded that "a DNA profile is used solely as an accurate, unique, identifying marker— in other words, as fingerprints for the twenty-first century."

The analogy of DNA profiling to fingerprinting allows courts to cite case law upholding the constitutionality of warrantless fingerprinting of arrestees for identification purposes as part of a routine booking process, as both the Mitchell majority and the vacated Pool panel did. Yet neither court mentioned that fingerprinting was considered routine long before Katz v. United States made "a reasonable expectation of privacy" the touchstone of the Fourth Amendment and before the "totality of the circumstances" test was announced in Illinois v. Gates. Rather, the pre-conviction DNA cases combine the unquestioned constitutionality of fingerprinting at booking with their depiction of DNA profiling as a twenty-first century fingerprint to conclude that the Fourth Amendment does not forbid warrantless pre-conviction DNA extraction at arrest.

Lapp and Radice declare this analogy a straw man by claiming that courts erroneously assert that the goals of fingerprinting and DNA profiling are the same: investigation. According to the authors, in upholding suspicionless, warrantless DNA profiling, "[c]ourts give great weight to the government’s interest in accurately establishing the accused’s identity and an arrestee’s diminished expectation of privacy in her identity that follows arrest and detention."

The authors disagree, first claiming, inter alia, that

this reduction of the privacy interest to only encompass identity...depends on an "uncommonly capacious definition of identification" that includes within it "what the person has done (whether the individual has a criminal record, whether he is the same person who committed an as-yet unsolved crime across town, etc.)."

Simply put, this definition conflates identification and investigation. It uses "identify" not in the sense of identifying the individual before the court, but in the sense of identifying the person who committed the crime. For example, the Mitchell majority highlights that "DNA may permit identification in cases without fingerprint or eyewitness evidence." But there is a difference between verifying the identity of an individual who says he is or is not O.J. Simpson, and identifying the person whose DNA was found at the murder scene of Nicole Brown and Ronald Goldman. The former is properly construed as identification, while the latter constitutes law enforcement investigation. In fact, DNA profiling can only confirm the identity of an arrestee if the arrestee’s DNA profile is already in CODIS as a known profile. Any match of an arrestee’s DNA profile to unknown crime scene DNA profiles does not identify the arrested individual. At the most, it provides evidence for an unrelated crime. Therefore, to the extent that DNA collection facilitates the determination of who did something— which is the vast extent of what DNA profiling is meant to do—it is beyond the normal, booking-related understanding of "identification."

Second, they argue that

Including the seizure of the DNA sample and its indefinite retention in the reasonableness analysis, rather than only considering the DNA profile, also breaks down the analogy to fingerprints. When the government takes a fingerprint of an arrestee, all the government gets is a fingerprint. It does not retain a biological sample that contains markers for traits including aggression, sexual orientation, and substance addiction. When the government takes a DNA sample, which contains the entire human genome, it has all of this data and can identify individuals related to the arrestee. Fingerprints, on the other hand, "only identify the person who left them."

Of course, these are just a few of the arguments raised by Lapp and Radice in their article, which I highly recommend to readers. The article led me to think about compulsory DNA collection in a different way and gave me hope that courts might have a similar reaction. And if the Supreme Court's recent decision in United States v. Jones is a bellwether, that might just be the case.

Jones dealt with the suspcionless, warrantless placement of a GPS device on a Jeep by officers so that they could track the movements of the defendant. For the last several years, the government defended this practice by claiming that a defendant can neither reasonably expect privacy in the publicly accessible exterior of his or her vehicle, nor in the location of his or her vehicle on public streets. In support of this position, the government argued that placing a GPS device of a car was no different than driving behind a suspect's vehicle and conducting visual surveillance or using a beeper to track a suspect, a practice that was upheld in both United States v. Karo, 468 U.S. 705 (1984), and United States v. Knotts, 460 U.S. 276 (1983).

Many courts agreed with the government, but there were some strident critics, such as the Supreme Court of Washington in State v. Jackson, 76 P.3d 217 (Wash. 2003), which found that a warrant was required for such GPS surveillance, noting, inter alia, that it perceived

a difference between the kind of uninterrupted, 24-hour a day surveillance possible through use of a GPS device, which does not depend upon whether an officer could in fact have maintained visual contact over the tracking period, and an officer's use of binoculars or a flashlight to augment his or her senses...[T]he intrusion into private affairs made possible with a GPS device is quite extensive as the information obtained can disclose a great deal about an individual's life.

In Jones, the United States Supreme Court agreed with the Washington Supreme Court, with Justice Scalia's majority opinion deconstructing each of the analogies that the government tried to draw between suspicionless, warantless GPS surveillance and prior police practices. In Karo and Knotts, police planted the beepers before the defendants came into possession of the subject property being tracked, meaning that "Jones, who possessed the Jeep at the time the Government trespassorily inserted the information-gathering device, [wa]s on much different footing."

Moreover, the Court noted that

The Government also points to our exposition in New York v. Class, 475 U.S. 106, 106 S.Ct. 960, 89 L.Ed.2d 81 (1986), that "[t]he exterior of a car...is thrust into the public eye, and thus to examine it does not constitute a 'search.'"...That statement is of marginal relevance here since, as the Government acknowledges, "the officers in this case did more than conduct a visual inspection of respondent's vehicle."...By attaching the device to the Jeep, officers encroached on a protected area. In Class itself we suggested that this would make a difference, for we concluded that an officer's momentary reaching into the interior of a vehicle did constitute a search.

Meanwhile, in his opinion concurring in the judgment, Justice Alito explicitly relied upon the Jackson rationale to reject the government's analogy to visual surveillance, finding that a

relatively short-term monitoring of a person's movements on public streets accords with expectations of privacy that our society has recognized as reasonable. See Knotts, 460 U.S., at 281–282, 103 S.Ct. 1081. But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. For such offenses, society's expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual's car for a very long period. In this case, for four weeks, law enforcement agents tracked every movement that respondent made in the vehicle he was driving. We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the 4–week mark. Other cases may present more difficult questions. But where uncertainty exists with respect to whether a certain period of GPS surveil lance is long enough to constitute a Fourth Amendment search, the police may always seek a warrant. We also need not consider whether prolonged GPS monitoring in the context of investigations involving extraordinary offenses would similarly intrude on a constitutionally protected sphere of privacy. In such cases, long-term tracking might have been mounted using previously available techniques.

The point of all of the Justices in Jones seems to be the same: Suspicionless, warantless visual (or beeper) surveillenace and suspicionless, warantless GPS tracking is not an apples-to-apples comparison, unless the GPS apple is the fruit of the poisonous tree. And this is the case because the government undersold both the nature of its intrusion and the privacy interest of the suspect.

This is the exact same point made by Lapp and Radice in A Better Balancing, and that's why they argue for a better balancing of the interests of the government and individuals in deciding when DNA collection can be justified. The hope would be that courts see the Jones-parallel and take the authors upon their proposal.

I asked the authors what led them to write the article, and Lapp responded that

it was the result of two things coming together: curriculum development and scholarly interests. A year and a half ago, Joy and I were tasked with developing a brief writing/oral argument exercise for our first-year Lawyering students. Because we both share an interest in the collateral consequences of a person's contact with the criminal justice system, we became really excited about creating a problem for our students that required them to tackle the constitutionality of pre-conviction DNA collection.  We were frankly surprised that the federal law is so expansive (mandating collection from anyone arrested), and that the case law is so decidedly supportive of the practice.  We were particularly struck by how courts have incrementally permitted more expansive DNA collection - first from certain dangerous and violent convicted felons, then to all people with a conviction, and now to mere arrestees - each time promising that the next step was a tough one, but then failing to acknowledge the toughness or adjusting the balancing when they got there.

Mindful that DNA collection from arrestees is an issue that seems likely to reach the Supreme Court in the near future, we wanted to bring attention to this incremental expansion of DNA collection that has taken courts to places many of them insisted in earlier opinions that they were not going (or would see very differently if they got there).  We also feel that courts are miscalculating the privacy interest at stake, ignoring the weight that should be given to the initial seizure and indefinite retention of the DNA sample (whatever statutory protections are in place regarding use of the seized sample), focusing instead solely on the DNA profile, in their totality of the circumstances balancing test.  

-CM