Tag Archives: Ninth Circuit

Ninth Circuit Upholds Indefinite Retention of DNA Samples: Kriesel III

Thomas Kriesel wants his blood back. The federal government forced him to give a sample for the FBI’s national DNA databank while he was on probation following his imprisonment for conspiring to possess methamphetamine with the intent to distribute it. After completing his sentence, Kriesel sued the government. He demanded that it remove his identifying profile from the federal database and return his blood sample.

The district court held that he was not entitled to expungement of the profile. On appeal, he dropped that part of his claim, but continued to argue for the return of the blood sample. Over a clamorous dissent, the Ninth Circuit upheld the indefinite retention of the sample. Comments on the opinions are on the FSSL blog.

The Newest from the Ninth Circuit on Arrestee DNA Databases

As of today, the Ninth Circuit Court of Appeals has twice upheld the constitutionality of DNA collection before conviction (DNA-BC). The first opinion came in United States v. Pool, 621 F.3d 1213 (9th Cir. 2010). There, the panel applied a totality-of-the-circumstances balancing test to uphold the federal arrestee law. However, the full court promptly agreed to rehear the case en banc (thus vacating the opinion in Pool).

At that point, another challenge to DNA-BC was pending. Haskell v. Brown, 677 F.Supp.2d 1187 (N.D. Cal. 2009), was a class action brought to enjoin enforcement of the California Proposition that initiated DNA arrestee sampling in that state. Determining that this law was, on balance, constitutionally reasonable, District Judge Charles Breyer, denied the request for a preliminary injunction. Plaintiffs appealed this ruling.

With eleven Ninth Circuit judges stirring the pot in Pool, Haskell moved to the back burner. But then Pool pled guilty, and the en banc court dropped his case as moot. Pool, 659 F.3d 761 (9th Cir. 2011) (en banc). Hence, the Haskell panel returned to work.

Today the case boiled over with the release of the panel’s opinion. As in Pool, the court split 2-1 in favor of DNA-BC. The two judges in Haskell to side with the state were Milan D. Smith, Jr., and James Dale Todd, a senior district judge for the Western District of Kentucky. Judge William A. Fletcher wrote a sharp dissent. Judge Smith devoted much of his majority opinion to refuting Judge Fletcher’s dissent. As a preliminary matter, they disagreed over whether Friedman v. Boucher, 580 F.3d 847 (9th Cir. 2009), a previous Ninth Circuit case not even involving a DNA database forced the court’s hand here. Judge Smith correctly wrote that “very broad dicta” in the case did not compel any particular result in Haskell.

With the path cleared, Judge Smith asked whether the “totality of the circumstances” were such that DNA-DB under California law was “reasonable” within the meaning of the Fourth Amendment. Judge Fletcher disputed the use of this amorphous standard. On this issue, neither opinion is convincing. Time after time, in case after case, the Supreme Court has repeated an important mantra–full fledged searches and seizures intended to produce evidence of criminal conduct are per se unreasonable, regardless of the other circumstances, when they are undertaken without a warrant and when they do not fall within a categorical exception to this warrant requirement. E.g., Kentucky v. King, 131 S.Ct. 1849 (2011); City of Ontario v. Quon, 130 S.Ct. 2619 (2010); Katz v. United States, 389 U.S. 347, 357 (1967). Therefore, it will not do to state, as Judge Smith blandly did, that totality-of-the-circumstances balancing is the norm in Fourth Amendment cases. To the contrary, it is an anomaly that has been used only in two Supreme Court cases (involving probationers). Upholding DNA-BC therefore requires showing that the program falls within an established exception–or recognizing a new exception to accommodate the acquisition of fingerprints, photographs, and now, DNA profiles for use in databases. The former move is possible but takes considerable effort. The latter would be the more candid and convincing mode of analysis.

But just as the Haskell majority’s leap to totality balancing is largely unjustified, the dissent’s theory of why DNA-BC is unconstitutional is groundless. According to dissenting Judge Fletcher, the Supreme Court held in Hayes v. Florida, 470 U.S. 811 (1985), and Davis v. Mississippi, 394 U.S. 721 (1969), that identifying information (fingerprints, in those cases) “may not be taken from an arrestee solely for an investigative purpose, absent a warrant or reasonable suspicion that the [information] would help solve the crime for which he was taken into custody.” This characterization overlooks the most critical facts in the cases and the explicit reasoning of the opinions. Justice White’s majority opinion in Hayes could not have been clearer in explaining that the cases simply hold “that transportation to and investigative detention at the station house without probable cause or judicial authorization together violate the Fourth Amendment.” 470 U.S. at 815. That the fingerprints were used for investigative purposes and not just to establish the true identities of the arrested suspects had nothing to do with the constitutional infirmity. “[T]he fingerprints … were the inadmissible fruits of an illegal detention” (id. at 813) because “the police at that time were without probable cause for an arrest, there was no warrant, and [the suspects] had not consented to being taken to the station house.” Id. at 313-14. Not a single Justice dissented from this understanding of the issue. Yet, Judge Fletcher transformed the simple and unremarkable result in Hayes and Davis into a condemnation of all forms of DNA-BC. Judge Smith was kind to call this aggressive reading of the cases a “novel interpretation.”

The Haskell court also split on the outcome of the balancing test. The majority was quick to accept the state’s litany of interests in DNA-BC as weighty, whereas the dissent demanded more rigorous proof. Conversely, the dissent was quick to accept nonscientific speculations about the dangers of DNA profiles and the risks of misuse of retained DNA samples, whereas the majority was loath to invalidate today’s laws on the grounds that they might be misused or changed.

Further developments are likely in the Ninth Circuit. Of the six judges to vote in Haskell and Pool (three per case), two of them came from outside the circuit and sat by designation. Counting only the Ninth Circuit noses, the vote to uphold DNA-DB has been 2-2 — not exactly a stable alignment. Obviously, there is considerable turmoil among the Ninth Circuit judges, and an en banc order in Haskell seems probable.

Acknowledgments: Thanks to Jen Wagner for sending me a copy of today’s slip opinion in Haskell.

Cross-posted to Forensic Science, Statistics, and the Law.

Junk Science in United States v. Pool

Having granted en banc review in United States v. Pool, 621 F.3d 1213 (9th Cir. 2010), the U.S. Court of Appeals for the Ninth Judicial Circuit could well produce as wild a set of conflicting opinions on DNA databases as it did in United States v. Kincade, 379 F.3d 813 (9th Cir. 2004).

The panel that heard the Pool case divided 2-1. Judge Callahan wrote an opinion upholding the federal law on taking DNA after an arrest but before a conviction that visiting Judge Lucero (of the Tenth Circuit) joined. Judge Lucero also wrote a separate opinion. Judge Schroeder dissented.

The briefs that informed these three opinions left something to be desired. Here, I’ll focus on one of my pet peeves–disingenuous or inane claims about the CODIS STR loci as a threat to privacy.

Appellant’s Opening brief (available from a link on EPIC’s website, along with a one-sided list of vaguely related articles) claims that “DNA profiles derived by STR may yield probabilistic evidence of the contributor’s race or sex.” [1] Probabilistic evidence of sex from autosomal STRs? The arresting officers or jailers need a genetic test for that?

Then the brief cites Simon Cole’s writing to support its sweeping statement that “scientific studies have debunked the notion that these regions of the genetic code are devoid of any biological function.” Yet, the brief cites no study that “debunks” the notion that the length polymorphisms of the CODIS tetranucleotide STRs lack “biological function.” The concurring opinion of Judge Lucero recognizes that Cole rejects the claim of functionality (for the moment). [2] However, a group in France has a theory and some data for a mechanism through which one such STR locus could regulate the expression of an enzyme. [3]

Finally, the brief proposes that the “specter of discrimination and stigma could arise where one or more STRs is found to correlate with another genetic marker whose function is known, so that the presence of the seemingly innocuous STR serves as a ‘flag’ for that genetic predisposition or trait.” [4] As an example of this flag theory, an accompanying footnote states that: “A study in England from 2000 found that one of the markers used in DNA identification is closely related to the gene that codes for insulin, which itself relates to diabetes.” [5]

The accused STR is TH01. It has been used in many studies investigating the association between (a) SNPs, VNTRs, and this STR in a complex of genes and (b) a large number of diseases. Unsurprisingly, associations have been observed. Some of the reported associations were spurious and were not replicated. Other associations probably are real. This does not mean that TH01, by itself, is a useful predictor of any of these diseases in a given population. In fact, one forensic biologist used the 2000 paper cited in Pool’s brief to show that “such associations [between forensic STRs and disease-causing alleles in genes] are so ridiculously weak that serious protest could never form.” [6] His explanation follows:

This is illustrated well by the possible association between certain alleles of an STR named TH01 and diabetes type 1 (Bennett and Todd, 1996; Stead et al., 2000). TH01 alleles are used routinely in DNA typing, and for a minute, the manufacturers of genetic fingerprint kits started to feel the heat over the possible association between an exonic illness and an intronic allele. Fortunately, it takes just a pen and a piece of paper to brush off possible concerns: four out of 1000 Europeans will eventually get diabetes type 1. If you carry one of the ‘risk’ alleles in the intronic TH01 region, your chances of getting diabetes type 1 is 0.13 out of 1000. If I find out that you are carrying the alleged risk allele in my laboratory during DNA typing, I could–but I am not allowed to–calculate your total risk for diabetes as 0.4 � 1.3 = 0.52%. In plain language: in the worst case scenario, one allele of your possible genetic fingerprint might tell me that your general risk of getting diabetes type 1 is increased from 0.4 to 0.52%. All other alleles will not tell me anything about you, or your potential risk for illnesses. Abuse of such information is impossible because it simply has no practical predictive value.

I do not want to “brush off possible concerns,” and I understand the pressures and temptations of advocacy. Still, I wonder whether the Sacramento Federal Defender consulted the scientific literature on TH01 before citing an old study. Or whether he knew that the claims in the law review essay cited in the brief were the subject of an extensive rejoinder in the same journal. [7] If he did, he choose not to share this fact with the court. To my mind, that is not good advocacy.


1. Brief at 12 (quoting from a plurality opinion in Kincade).
2. 621 F.3d at 1230.
3. See Rolando Meloni, Post-genomic Era and Gene Discovery for Psychiatric Diseases: There Is a New Art of the Trade? The Example of the HUMTH01 Microsatellite in the Tyrosine Hydroxylase Gene, 26 Molecular Neurobiology 389 (2001).
4. Brief at 12
5. Id. at 12 n.8.
6. Mark Benecke, Coding orNon-coding?, That Is the Question, 3 European Molecular Biology Organization Reports 498 (2002).
7. David H. Kaye, Please, Let’s Bury the Junk: The CODIS Loci and the Revelation of Private Information, 102 Nw. U. L. Rev. Colloquy 70 (2007).