In 2009, the United States District Court for the Western District of Pennsylvania made legal history. For the first time, a federal court held that the government lacked the constitutional power to compel individuals who had been arrested and charged with a crime to provide a DNA sample. Today, the Court of Appeals for the Third Circuit (one of the 12 appellate courts that sit one rung below the Supreme Court in the federal judicial system) reversed this ruling. Yet, both courts applied the “totality of the circumstances” standard for ascertaining the reasonableness of searches and seizures. What, then, accounts for the anticlinal outcomes?
Basically, the two courts took very different views of the individual’s Fourth Amendment interests and their role in evaluating the legislation. The following passages from the district court opinion and the opinion of the majority of the court of appeals are illustrative.
- District Court: [T]he search in this instance is one that reveals the most intimate details of an individual’s genetic condition, implicating compelling and fundamental “interests in human dignity and privacy. See Schmerber v. California, 384 U.S. 757, 770 (1966).
- Court of Appeals: Schmerber recognized society’s judgment that blood tests “do not constitute an unduly extensive imposition on an individual’s personal privacy and bodily integrity.”
- District Court: [T]o compare the fingerprinting process and the resulting identification information obtained therefrom with DNA profiling is pure folly. Such oversimplification ignores the complex, comprehensive, inherently private information contained in a DNA sample.
- Court of Appeals: While we acknowledge the seriousness of Mitchell’s concerns about the possible misuse and future use of DNA samples, we conclude that these hypothetical possibilities are unsupported by the record before us and thus do not have any substantial weight in our totality of the circumstances analysis.
The district court was not reassured by the fact that DNA identification profiling currently is little more than a token of personal identity. On the basis of a student law review article, it feared that “DNA samples may reveal private information regarding familial lineage and predisposition to over four thousand types of genetic conditions and diseases; they may also identify genetic markers for traits including aggression, sexual orientation, substance addiction, and criminal tendencies.”
The majority of the en banc court of appeals was less fearful that the government would change its use of the samples to go beyond the current production and trawling of identification profiles. It observed that “[t]he judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear. … At this juncture, … we consider the amount and type of personal information to be contained in the DNA profile to be nominal.”
Thus, the district court saw the retained samples as a potentially rich source of private information about the arrestee that the government might want to exploit some day (although it it did not explain why the government would be interested in performing genetic tests for 4,000 or more medical conditions). The court of appeals was content to uphold the status quo: “As currently structured and implemented . . . the DNA Act’s compulsory profiling of qualified federal offenders can only be described as minimally invasive–both in terms of the bodily intrusion it occasions, and the information it lawfully produces.”
Similar cases are pending before the Second and Ninth Circuits. I predict that both will uphold the federal law — over some vigorous dissents. When will the Supreme Court step in?
United States v. Mitchell, 681 F.Supp.2d 597 (W.D. Pa. 2009)
United States v. Mitchell, No. 02-2859 (3d Cir. Aug. 25, 2011) (en banc)