A Fourth Amendment Privacy Analysis of the Department of Defense's DNA Repository for the Identification of Human Remains: The Law of Fingerprints Can Show Us the Way

• Author: The Identification Of Human Remains
• Pages: 03

2004] FOURTH AMENDMENT & DOD DNA REPOSITORY 69

A FOURTH AMENDMENT PRIVACY ANALYSIS OF THE DEPARTMENT OF DEFENSE'S DNA REPOSITORY FOR

THE IDENTIFICATION OF HUMAN REMAINS: THE LAW OF FINGERPRINTS CAN SHOW US THE WAY

MAJOR STEVEN C. HENRICKS1

1. Introduction

   The Department of Defense (DOD), through the Armed Forces Institute of Pathology (AFIP), collects deoxyribonucleic acid (DNA) via blood samples from all service members.2 The DOD collects the DNA samples for the sole purpose of identifying remains should a service member die while serving his or her country.3 The AFIP stores the collected samples at a single site in the Washington, D.C. area.4 From time to time, state, federal, and military law enforcement will seek to match DNA found at a crime scene or taken from a victim with the DNA samples stored at the AFIP site. Historically, the AFIP and the DOD honor such requests only when the request meets certain conditions, including that a "proper judicial order" accompanies the request.5 This article reviews whether the Fourth Amendment6 and recently enacted federal law7 require a warrant or search

   1. Judge Advocate, U.S. Army. Presently assigned as the Group Judge Advocate, Fifth Special Forces Group, Fort Campbell, Kentucky. LL.M., 2003, The Judge Advocate General's Legal Center and School, U.S. Army, Charlottesville, Virginia; J.D., 1991, University of Kansas; B.A., 1988, Bethany College, Lindsborg, Kansas. Previous assignments include: Fort Monmouth, New Jersey, 1993-1996 (Legal Assistance Attorney, Administrative Law Attorney, Special Assistant U.S. Attorney, Trial Counsel, and Chief, Legal Assistance and Claims), Fort Riley, Kansas, 1996-1999 (Defense Counsel and Senior Defense Counsel), and Fort Hood, Texas, 2000-2002 (Chief, Legal Assistance, III Corps and Chief of Military Justice, 1st Cavalry Division). Member of the Kansas and Missouri bars.

   2. See U.S. DEP'T OF DEFENSE, DIR. 5154.24, ARMED FORCES INSTITUTE OF PATHOLOGY

   4 (20 Oct. 1996) [hereinafter DOD DIR. 5154.24].

   3. See id.

   4. See Interview with Mr. David Boyer, Director of Operations, Armed Forces Repository of Specimen Samples for the Identification of Human Remains, in Gaithersburg, Md. (Nov. 8, 2002) [hereinafter Boyer Interview].

   5. See DOD DIR. 5154.24, supra note 2, at 6.

   6. U.S. CONST amend. IV.

   7. 10 U.S.C.S. § 1565a (LEXIS 2004).

   authorization8 before the AFIP provides part of a service member's DNA sample to law enforcement.

   1. Hypotheticals

      To help understand the issues present in this topic, consider the following hypothetical scenarios.

      1. Hypothetical 1

      An unknown individual sneaks into barracks located on a large United States Army (Army) installation, home to over forty thousand troops. Once inside the barracks, the individual observes a female soldier enter her barracks room, notes the soldier does not have a roommate, and sees that she fails to lock her door. The individual checks that no one noticed him, dons a mask, and enters the female Soldier's barracks room. Once inside, the individual threatens the female with a knife, brutally rapes and sodomizes her, and then leaves the barracks unobserved.

      Shortly thereafter, the female Soldier reports to military authorities that someone she could not identify raped her. Military health care officials immediately perform a rape kit analysis, which produces a semen sample from the unknown individual. When the military investigation does not immediately produce a suspect, the victim demands that the Army check its "DNA database" against DNA from the semen sample for a possible match. The Army responds that there is no way to know a Soldier committed this crime,9 and assuming a Soldier did rape the victim, Soldiers have a reasonable expectation of privacy in their respective DNA samples kept by the AFIP to identify human remains. A warrant or search authorization must therefore support any search done of an AFIP blood sample for a law enforcement purpose.

      The victim, satisfied with neither that response nor the military investigation's progress, contacts local state law enforcement authorities and

      8. A search authorization is the military equivalent of a warrant. A search authorization must be based on probable cause and can only be issued by a military judge, military magistrate, or a commander. See MANUAL FOR COURTS-MARTIAL, UNITED STATES, MIL. R.

      EVID. 315 (2002) [hereinafter MCM].

      9. Assume the installation is an "open post," meaning that civilians can freely enter and leave the installation without any identification check.

      inquires if they will investigate her rape. Local law enforcement decides to open an investigation into the rape after determining the crime occurred on concurrent federal and state jurisdiction.10 A local detective then submits a request, signed by the state agency head of law enforcement, to the AFIP requesting that they attempt a blind match of the suspect's DNA sample with the DNA samples under the AFIP's control. The AFIP's position remains unchanged, and a few months later the person who committed the rape, in fact a Soldier, kills a local civilian. The investigation of the killing conclusively establishes the Soldier as the rapist and the killer.

      2. Hypothetical 2

      Same facts as Hypothetical 1, but now military and state investigators both reasonably believe that the suspect is an unknown male Soldier who lives in some nearby barracks. There are approximately three hundred male soldiers who live in that barracks. The AFIP refuses to do a blind search of the three hundred Soldiers' DNA samples, in part because of no individualized probable cause.

      3. Hypothetical 3

      Same facts as Hypothetical 1, but now military and state investigators reasonably believe that the rapist is one of ten Soldiers seen around the barracks at the time of the rape. The investigation is in its early stages, and there has not yet been time to eliminate any of the ten Soldiers from suspicion. The AFIP's response is the same as in Hypothetical 2.

   2. Article Overview

      This article analyzes whether the DOD correctly requires a warrant or search authorization before releasing part of a service member's DNA or blood sample to law enforcement. First, the article reviews the DNA molecule, the DNA molecule's relationship to the human genome, and forensic testing of the DNA molecule. Second, the article discusses the AFIP's

      10. Either the state or federal government has jurisdiction to prosecute crimes occur-ring in this area. There are four types of jurisdiction on military posts: exclusive federal legislative jurisdiction, concurrent legislative jurisdiction, partial jurisdiction, and proprietary federal interest. See U.S. DEP'T OF ARMY, REG. 405-20, FEDERAL LEGISLATIVE JURISDICTION 1 (1 Aug. 1973).

      DNA sample collection protocol and then compares that process with the Federal Combined DNA Index System (CODIS) and fingerprint data-banks. Within this section, the article addresses specific rules adopted by the DOD applicable to the release of the AFIP DNA samples.

      Third, the article reviews federal statutory schemes that generally address whether and how federal executive agencies release information contained in records they possess. Fourth, the article examines whether service members have a reasonable expectation of privacy under the Fourth Amendment in the DNA samples they must give to the AFIP. Fifth, the article reviews and critiques recently enacted federal legislation that addresses the release of DNA samples to law enforcement. Sixth, based on the preceding review and analysis, the article addresses whether the AFIP's position in each hypothetical is correct.

      The article then concludes that DNA's unique nature creates a reasonable expectation of privacy held by the service member in his AFIP DNA sample, which in almost all cases may be overcome only with consent to search or a search warrant or authorization. Moreover, the DOD's self-imposed rules concerning how and why the DOD and the AFIP collect service members' DNA separately creates a reasonable expectation of privacy by service members in their AFIP DNA sample, which again may only be overcome with consent or a search warrant or authorization.

2. DNA and the Human Genome

   Most are by now familiar with three general DNA concepts: DNA is the building block of life; the double helix staircase model used to represent a DNA molecule; and matching DNA samples provide almost irrefutable identification of an individual. Any privacy analysis of an individual's DNA, however, must go deeper than this cursory knowledge. To know what privacy interests are at stake, one must understand what DNA is, what DNA can tell us about an individual, and what DNA may, in the future, tell us about that same individual.

   1. The DNA Molecule

      Deoxyribonucleic acid is present in every human cell.11 Within each cell, DNA is a molecule made up of two strands of nucleotide acid.12

      Nucleotide acid subparts, called nucleotides, form the strands of the double

      helix.13 Nucleotides, in turn, are made up of three components: a nitrogen base, a phosphate molecule, and a sugar molecule.14 The nitrogen base is further broken down to one of four organic bases: adenine (A), guanine

      (G), thymine (T), or cytosine (C).15 These nitrogen bases arrange themselves in two ways. First, on either strand of the double helix the nitrogen bases form linear, non-overlapping sequences known as the DNA sequence (for example, ATTCCGGA).16 Second, the nitrogen bases form base pairs between the two strands on the double helix.17 Adenine-thymine (AT) is one base pair, while GC (guanine-cytosine) forms the other base pair.18 Chemical bonds between these base pairs cause the nucleotide acid strands to come together as the double helix.19

      The DNA sequence provides the code to life. Scientists have determined that the four nitrogen bases described in the preceding paragraph form code words, usually in groups of three letters.20 Similar to a telegraph, a code phrase or message will...