Compulsory DNA Collection Before the Court

By

Bhakta David Nollmeyer

Jerry Arbert Pool was indicted for receiving and possessing child pornography on January 8, 2009. Pool entered a plea of not guilty at his arraignment. Pool had no prior record, the magistrate judge ordered that Pool could be on a $25,000 bond conditional that he obey all pre-trial conditions. This was inclusive of submitting a DNA sample. The Bail Reform Act, 18 U.S.C. §§ 3142(b) and (c)(1)(A), require a defendant to cooperate by providing a DNA sample as a condition of pre-trial release. Pool refused, and challenged the constitutionality of these two amendments (Epic).

The statute permits the Attorney General to collect the samples by cheek swab or blood test. After a DNA sample is taken by either a cheek swab or blood test, this data is provided to the FBI. The agency analyzes the DNA and develops a profile in it's national Combined DNA Index System (“CODIS”). CODIS links federal, state and local law enforcement, and forensics laboratories to compare DNA profiles. The profiles then may be used to assist crime scene investigations (Epic).

Pool has gathered significant interest that mandatory DNA sampling and profiling was a violation of his Fourth Amendment rights. This is based on the grounds the collection represents an unlawful search and seizure. The government had no warrant or probable cause to collect and enter DNA into a database.

Pool's claim based on the facts is not centered on the physical collection of a DNA sample. He argues the intrusive nature of the information contained in DNA reveals more than identification. The government claim on this issue is that the DNA will not be used for other purposes.

The FBI analyzes for the presence of alleles at 13 markers, loci on the DNA specimen. The STR loci are also present on non genetic stretches of DNA that does not code traits. There are observed group variances located on the STR. These may yield probabilistic evidence of the submitter's race or sex. The DNA profiles are highly individual. The likelihood of two randomly chosen individuals to share the same profile are infinitesimal (United States v. Pool 2010).

The magistrate judge denied Pool’s request for a hearing on the DNA collection. The court ruled that requiring the DNA did not violate Pool’s rights.

On Sept. 14, 2010, the Ninth Circuit Court upheld the legality of mandatory collection of DNA before the beginning of a trial.The court upheld the federal Bail Reform Act that requires the submission of a sample as a pre-condition of release provided that after a being charged with a federal felony and after a finding of probable cause my a judge. The Ninth Circuit held in a split decision that the Bail Reform Act was does not violate a pretrial detainee's Fourth Amendment or other rights (American Bar Association 2010).

Anna Henning argues that in the United States v. Pool and in United States v. Mitchell, the U.S. District Court for the Western District opposite conclusions were reached. She posits future DNA cases regarding pre conviction may occur whether the status of the defendant unduly impacted the judgment. What is the scope of the State's interest in identifying a defendant? Is newer science revealing that the type of DNA used contains greater information and therefore a larger privacy intrusion (Henning 2010)?

The Mitchell court in it's criticism of Pool stated that it is “loath to elevate a finding of probable cause” – i.e., the standard which must be met for an indictment or an arrest – to match the higher, “reasonable doubt” standard required for a conviction. Here this court rejected the diminished standard of privacy argued for indicted persons before the court (Henning 2010).

As seen the emergence of newer technology and the classic battleground between the state and individual has impacted forensic science and the interest of the two previously stated parties. The perception of right and privacy issues run deep. It appears the nature of the positive identification qualities of DNA strengthen the government versus persons indicted for serious felonies. In remains to be seen if a misuse of DNA database information will transform case law.

Case Brief

United States of America v. Jerry Pool No. 09-10303 D.C. No. 2:09-cr-00015-EJG-1

Facts: Pool was charged in the Eastern District of California on January 8, 2009 by indictment with possessing and receiving child pornography under federal code of 18 U.S.C. §§ 2252(a)(2) and 2253. Pool was arrested, appeared in court for his arraignment on January 23, 2009. Pool had no prior criminal record. He pleaded not guilty.

The magistrate judge ordered Pool released on a $25,000 bond on compliance of pre-trial conditions. Pool contested providing a DNA sample. The court stayed the DNA collection so the litigants could brief the issue. Pool challenges the constitutionality of amendments to the Bail Reform Act, 18 U.S.C. § 3142(b) and (c)(1)(A).

The government defines DNA as a double-helix shaped nucleic acid held together by hydrogen bonds and composed of base pairings of Adenine and Thymine, and Cytosine and Guanine, which repeat along the double-helix at different regions (referred by short-tandem-repeat loci, or STR loci).

Pool objected primarily under the Fourth Amendment. He challenged the law as unconstitutional under the Eighth Amendment, the Due Process Clause and in violation of the separation of powers doctrine.

Pool appealed the magistrates order. The US District Court for the Eastern District of California affirmed the magistrate judge’s ruling. Pool appealed to the Ninth Circuit Court of Appeals. Pool cited scientific studies demonstrating that DNA data in CODIS profiles disclose genetic traits and conditions.

The Ninth Circuit ruled against Pool.

Main issue: Does the Bail Reform Act, 18 U.S.C. § 3142(b) and (c)(1)(A), which permit the Attorney General to procure a DNA sample as condition of pre-trial release violative of Constitutional Rights? No.

Court’s decision: Affirmed. The district court’s was correct to order Pool to provide a DNA sample to obtain pre-trial release. The magistrate was correct in the finding of probable cause is a watershed event. This permits the totality of the circumstances exception to the Fourth Amendment.

The government’s interest in determining Pool’s identity outweighs his privacy interest. The government’s use of the DNA is limited to identification purposes. This is it's only legal use.

There is no merit in Pool’s claims that the mandatory DNA collection provision of 42 U.S.C. § 3142(b) and (c)(1)(A) is unlawful as (1) violating rights to due process (2) violate rights in the Bail Clause - Eighth Amendment (3) violates separation of powers (4) is an illegal extension of federal power.

A. Pool did not demonstrate that requiring him to provide DNA violates rights to due process.

Pool states that he was denied due process because the district court would not address his specific situation in relating to require a DNA sample. See Court’s opinion in Connecticut Department of Public Safety v. Doe, 538 U.S.1, 4 (2003). The Supreme Court held the state’s decision to require registration as a sex offender on the basis of a prior conviction rather than the person’s dangerousness was not a violation of due process. The State does not have to prove a fact that is not material to the State's scheme.

Congress’s legislation to require a DNA sample as a condition of pre-trial release after the district court has made a probable cause determination does not infringe procedural due process.

B. Pool has not demonstrated requiring him to provide a DNA sample violates the Bail Clause of the Eight Amendment.

Pool argues that requiring him to provide a DNA sample as a condition for pre-trial release constitutes excessive bail under the Eighth Amendment because DNA testing and profiling is not relevant issues to be addressed by pretrial conditions of release: assuring his appearance and providing for the safety of the people.

In Salerno, the Supreme Court held the substantive limitation in the Bail Clause requires Government’s proposed conditions of release may not be excessive in light of perceived evil.481 U.S. at 754.

C. Pool has not demonstrated that requiring him to provide a DNA sample violates the doctrine of separation of powers.

Pool asserts United States v. Klein, 80 U.S. 128, 146-47 (1871), Congress violated the separation of powers doctrine with the Bail Reform Act because it prescribes a rule for courts without allowing courts to exercise judicial power.

In Chapman v. United States, 500 U.S. 453 (1991), the Supreme Court held Congress has the authority to define criminal punishments. The courts may not have any sentencing discretion and sentencing schemes for individualized sentences rests on public policy enacted into statutes.

D. Pool’s fails to argue providing a DNA sample is an illegal extension of federal power.

Pool lacks merit to argue that § 14135a is unconstitutional on grounds it extends broadly to all individuals who are arrested, facing charges, or convicted. This without regard to whether they are within a federal criminal jurisdiction.

Pool’s claim is limited to a person who has been charged with a federal felony. In United States v. Reynard, 473 F.3d 1008, 1021 (9th Cir. 2007), an argument that claimed a statute was unconstitutional as the federal government lacks jurisdiction under the Commerce Clause to order a federal offender to provide a DNA sample as a condition of his supervised release was not held.

Holding: When a court has ruled that there is probable cause that a defendant is guilty of a felony, the state's interest in positively determining the defendant's identity is greater than the individual's privacy interest in supplying a DNA sample as condition of release pre-trial where the government has no given no indication to use the sample other than identification.

My Thoughts: I believe the constitutional issues of the state versus the individual are played out in this case. I usually agree with the totality of circumstances test. The need to identify persons who are under custody of the government is great. If all felons are to be forced to submit DNA samples this is indeed intrusive.

As much as I am in doubt of the government's honesty in only using the information for identification, DNA is a positive identification tool. Pool and similar sex offenders should provide DNA.

Works Cited

Brief: United states v. pool. (2010) American Bar Association. Retrieved November 22, 2011: http://www2.americanbar.org/SCFJI/Lists/New%20Case%20Summaries/DispForm.aspx?ID=229

Henning, A. (2010). Compulsory dna collection: A fourth amendment analysis. Congressional Research Service. Retrieved November 22, 2011: http://www.fas.org/sgp/crs/misc/R40077.pdf

Compulsory dna. Epic.org. Retrieved November 22, 2011: http://epic.org/amicus/pool/default.html

United States of America v. Jerry Pool No. 09-10303 D.C. No. 2:09-cr-00015-EJG-1.Ninth Circuit Court of Appeals. Retrieved November 22, 2011: