Constitutional law - diminished expectations of privacy and the human genome: circuits align on mandatory DNA profiling of convicted felons.

Author:Ehrenpreis, Noah

Constitutional Law--Diminished Expectations of Privacy and the Human Genome: Circuits Align on Mandatory DNA Profiling of Convicted Felons--United States v. Weikert, 504 F.3d 1 (1st Cir. 2007)

Pursuant to congressional mandate, individuals convicted of certain predicate offenses must submit to mandatory deoxyribonucleic acid (DNA) extraction. (1) Such an intrusion on personal autonomy implicates the Fourth Amendment, which affords all citizens the right to be free from "unreasonable searches and seizures." (2) In United States v. Weikert, (3) the United States Court of Appeals for the First Circuit, in a case of first impression, considered whether a forced DNA submission violates the Fourth Amendment. (4) In reversing the district court's decision to grant the defendant's motion for preliminary injunction, the court joined eleven circuits and concluded that extracting and retaining DNA profiles of supervised releasees during their supervised terms did not violate the Fourth Amendment. (5)

In 1990, Leo Weikert pled guilty to conspiracy in the United States District Court for the Western District of Texas. (6) After serving four years of the sentence, he escaped from prison but was apprehended and reincarcerated in Massachusetts five years later. (7) After serving his original sentence for the conspiracy count and an additional eight-month term for escaping custody, Weikert began a court-ordered 24-month supervised release program. (8)

The probation office informed Weikert of its intention to secure a blood sample, pursuant to the DNA Analysis Backlog Elimination Act of 2000 (Act). (9) In turn, Weikert filed a motion in the United States District Court for the District of Massachusetts to enjoin the extraction. (10) The district court recognized at the outset of its opinion that eleven other circuits have concluded that some form of forced DNA submission is constitutional. (11) Despite the persuasive authority of eleven sister circuits, the district court reached a contrary conclusion by declaring the Act unconstitutional. (12)

The district court aptly recognized the circuit split over the applicable standard. (13) After adopting a "special needs" approach, the lower court determined that DNA profiling serves merely to enhance general crime-solving ability. (14) Consequently, the lower court issued the injunction, concluding that the Act fails to serve a requisite special need beyond the general needs of law enforcement. (15) On appeal, however, the First Circuit reversed and remanded the case after concluding, based on a different standard, that a forced extraction of DNA from supervised releasees complies with the Fourth Amendment. (16)

DNA profiling involves examining thirteen predetermined locations (loci) inherent to every DNA molecule. (17) The probability of two different DNA molecules displaying identical traits at these thirteen points is less than one in one trillion. (18) Although an entire DNA molecule can provide extensive personal genetic information, these specific loci are allegedly void of such information, thereby warranting the title "junk DNA." (19) Debate exists, however, as to the legitimacy of that characterization. (20) Since DNA evidence reportedly entered the criminal justice system in 1987, the federal government and all fifty states now require some form of forced DNA extraction for certain criminal offenders. (21) The collected samples are stored in centralized databases, thereby enabling law enforcement to take DNA evidence recovered from crime scenes and run electronic comparative searches against all collected DNA profiles in the country. (22)

Circuits addressing the constitutionality of DNA profiling of convicted offenders disagree over the applicable evaluative standard, yet unanimously align over the end result. (23) While the Supreme Court has yet to approach this precise issue, it has provided guidance within the general umbrella of search and seizure jurisprudence. (24) Recently, in Samson v. California, (25) the Court upheld a parole scheme allowing random searches of parolees at any time without individualized suspicion. (26) Post-Samson, suspicionless searches of parolees necessitate a traditional Fourth Amendment balancing test, rather than a more exacting "special needs" test. (27) Samson, coupled with congruous inter-circuit precedent, is prompting at least one state to test the limits of its newly validated constitutional authority. (28)

An individual's status as a criminal offender directly impacts any corresponding expectations of privacy because criminal offenders generally receive less Fourth Amendment protection than law-abiding citizens. (29) Further, within the broad ambit of "criminal offenders," some offenders are entitled to greater privacy expectations than others, depending on the nature of the underlying crime and the subsequent punishment imposed. (30) In theory, punishment schemes that are more "akin to imprisonment"--e.g., parole--beget fewer privacy expectations than others farther removed from imprisonment--e.g., probation. (31) Notably, in 1984, Congress set out to abolish most forms of parole in favor of supervised release--a new type of post-incarceration monitoring system overseen by the sentencing court rather than the Parole Commission. (32)

In United States v. Weikert, the First Circuit aligned itself with all sister circuits by validating the constitutionality of forced DNA submissions of supervised releasees. (33) In addition to considering the other circuits' jurisprudence, the First Circuit benefited from the additional guidance provided by the Supreme Court in Samson. (34) Furthermore, the Weikert court explained that federal courts generally do not "distinguish[ ] between parolees, probationers, and supervised releasees for Fourth Amendment purposes." (35) Accordingly, the First Circuit concluded Samson controls the standard, despite Weikert's distinguishing status as a supervised releasee. (36) In a dissenting opinion, however, Judge Stahl disagreed, interpreting Samson as limiting the application of a traditional Fourth Amendment balancing test to three specific situations, none of which he considered applicable to this case: "(1) programmatic searches; (2) special needs searches; and (3) searches conducted as part of a state's conditional release program." (37)

The majority found salient Weikert's status as a supervised releasee, due to the inherent limitations the status imposes upon expectations of privacy. (38) The First Circuit rejected Weikert's proposition that supervised releasees are entitled to greater substantive protection than parolees, standing by its earlier refusal to distinguish between punishment schemes for Fourth Amendment purposes. (39) The court also disposed of Weikert's argument that drawing blood, by itself, constitutes an unreasonable intrusion, explaining that such medical procedures are "commonplace" and otherwise "[in]significant." (40) Regarding Weikert's remaining privacy argument--that the retention of his DNA profile exceeds constitutional bounds--the court interpreted it as invoking two distinct concerns: (1) the potential for misuse of information; and (2) the possibility that future scientific discoveries will enable the government to obtain infinite personal information. (41) The court held that the first argument warrants little consideration in a general balancing test because it fails to consider "present circumstances." (42) As to the second concern, the court stated that it would reconsider the issue if new genetic discoveries enhance the value of junk DNA; consequently, Weikert's privacy interests garnered scant weight. (43)

In contrast, the First Circuit gave significant credence to the government's asserted interests. (44) For example, the court explained that the governmental need to monitor, rehabilitate, and prevent recidivism of parolees collectively represents important interests already deemed "substantial" by the Supreme Court in Samson. (45) Additionally, the court stressed that DNA profiling--as opposed to fingerprinting or photography--enables the government to solve crimes with unparalleled accuracy and efficiency. (46) Balancing these considerations in light of the Fourth Amendment, the First Circuit concluded that the governmental interests outweigh Weikert's privacy expectation. (47) The court, however, significantly limited its holding by recognizing that Weikert's privacy interests...

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