DNA collection challenges privacy

When a federal judge in Pittsburgh ruled that prosecutors cannot, without a warrant, routinely collect DNA samples from arrestees for inclusion in a national database, he sparked an appeal now set to be argued before all 14 judges on the 3rd U.S. Circuit Court of Appeals.

At issue in United States v. Mitchell is one of the most important privacy rights issues facing the courts: whether routine DNA sampling should be considered no different from fingerprinting or photographing, or whether the government ought to be required to get a warrant, or wait for a conviction, before taking a genetic sample.

The Justice Department's appeal in Mitchell was initially argued before a three-judge panel in April. But the court has taken the rare step of slating the case for en banc re-argument without releasing a decision from the three judges.

In November 2009, U.S. District Judge David S. Cercone of the Western District of Pennsylvania ruled against the government, and held that DNA sampling of arrestees violates the Fourth Amendment.

Defendant Ruben Mitchell, indicted in March 2009, had been charged with possession with intent to distribute cocaine. Mr. Mitchell, of California, lost track of more than 41 pounds of cocaine, which was stored in his luggage but lost on a Southwest Airlines flight to Pittsburgh. At his first court appearance, Mr. Mitchell objected to the collection of his DNA pre-conviction, and U.S. Magistrate Judge Lisa Pupo Lenihan issued an order blocking the collection until a decision by the district court.

In the federal case, prosecutors argued that Congress authorized such DNA sampling of arrestees, and that it serves the compelling government interest of identifying a suspect more accurately than fingerprints or photographs can.

But Judge Cercone reasoned that DNA testing goes too far because a genetic sample can reveal much more than a suspect's identity. Although arrestees have a "diminished expectation of privacy," Judge Cercone concluded that the practice of routinely obtaining genetic samples from all arrestees must be struck down as unconstitutional.

Courts, including the 3rd Circuit, have already held that those convicted of certain crimes may be subjected to DNA sampling, but Judge Cercone said that he found "no compelling reason to unduly burden a legitimate expectation of privacy and extend these warrantless, suspicionless searches to those members of society who have not been convicted, are presumed innocent, but have been arrested and are awaiting proper trial." Instead, he concluded that Mr. Mitchell had "the highest expectation of privacy" in his genetic code, and that this was not outweighed by any governmental interest in collecting the information.

On appeal, Assistant U.S. Attorney Laura Schleich Irwin argued that Judge Cercone's ruling should be reversed because his analysis "relied largely on the notion that the presumption of innocence alters the Fourth Amendment calculus and gives arrestees and pretrial detainees greater privacy rights in their identifying information than those convicted of a crime."

That logic, Ms. Irwin argued, "is flatly inconsistent with decisions holding that the presumption is a trial right and has no bearing on an assessment of privacy interests for Fourth Amendment purposes." She also argued that the judge's concerns about DNA's broader privacy issues were a "red herring" because Congress included safeguards in the law to prevent any use beyond identification.

But Assistant Federal Public Defender Elisa A. Long urged the appellate court to uphold the ruling, arguing in her brief that the government cannot "forcibly extract" a DNA sample from her client based solely on his status as an arrestee and pretrial detainee, without a warrant and without reasonable suspicion to believe that it will produce evidence of a crime.

In April, Ms. Irwin and Ms. Long argued the appeal before 3rd Circuit Judges Marjorie O. Rendell and Julio M. Fuentes and U.S. District Judge Robert B. Kugler of the District of New Jersey, sitting on the 3rd Circuit by invitation.

Ms. Irwin faced a barrage of questions from Judges Rendell and Fuentes on the issue of whether DNA testing is more intrusive than fingerprinting.

Shannon P. Duffy: sduffy@alm.com or 215-880-3700. To read more articles like this, visit www.thelegalintelligencer.com

First published on November 1, 2010 at 12:00 am