Police can forcibly take DNA samples during arrests, judge rules
In the first case of its type, a federal judge in California has ruled that police can forcibly take DNA samples, including drawing blood with a needle, from Americans who have been arrested but not convicted of a crime.
U.S. Magistrate Judge Gregory Hollows ruled on Thursday that a federal law allowing DNA samples upon arrest for a felony was constitutional and did not violate the Fourth Amendment's prohibition of "unreasonable searches and seizures."
Hollows, who was appointed by President George H.W. Bush, said the procedure was no more invasive or worrisome than fingerprinting or a photograph. "The court agrees that DNA sampling is analogous to taking fingerprints as part of the routine booking process upon arrest," he wrote, calling it "a law enforcement tool that is a technological progression from photographs and fingerprints."
Lawrence Brown, acting U.S. attorney for the Eastern District of California, says he's "gratified" by the ruling
(Credit: U.S. Department of Justice)"The invasiveness of DNA testing is minimal," Hollows wrote (PDF). "The DNA can be taken by an oral swab, and even blood tests have been held to be a minimal intrusion."
"We are very gratified with the ruling," Lawrence Brown, acting U.S. attorney for the Eastern District of California, said in a statement. It also said that the U.S. Department of Justice "exercised its authority under the statute earlier this year and issued direction to various federal agencies to begin collecting the DNA of individuals who are arrested or facing charges, as has historically been the case with the collection of fingerprints."
A bill that President Bush signed in January 2006 said any federal police agency could "collect DNA samples from individuals who are arrested." Anyone who fails to cooperate is, under federal law, guilty of an additional crime.
In addition, federal law and subsequent regulations from the Department of Justice authorize any means "reasonably necessary to detain, restrain, and collect a DNA sample from an individual who refuses to cooperate in the collection of the sample." The cheek swab or blood tests can be outsourced to "private entities."
While other courts have ruled on the constitutionality of DNA sampling after conviction, this is the first case to deal with defendants who have only been accused of a crime. (The 9th Circuit, in U.S. v. Kincade (PDF), ruled that mandatory DNA testing of violent convicted felons on supervised release was constitutional; a dissent by Judge Alex Kozinski said that same logic could lead to mandatory testing of every American citizen: "The more DNA samples are included in the database, the better off we are: More guilty parties will be found, more innocents will be cleared and more unknown crime victims will be identified...")
The defendant in the current case in California, Jerry Albert Pool, is accused of possessing child pornography in the form of illegal images of minors on his computer, a felony. He has no prior criminal record and has pleaded not guilty.
Hollows ruled that in the case of felony charges lodged against a defendant by a judge or a grand jury--resulting in a formal finding of probable cause--mandatory DNA sampling was reasonable. He noted that he took no position on whether or not DNA sampling for misdemeanor offenses was reasonable and constitutional.
The list of possible federal felony charges includes ones you might expect, including counterfeiting and kidnapping. But it also includes some forms of peer-to-peer piracy, circumventing e-book protection, or using innocent words like "Barbie" on a sexually-explicit Web site.
"In utilizing the totality of the circumstances, the decision to impose the DNA testing requirement on pre-trial detainees or releasees seems clearly warranted, if not compelling," Hollows wrote. "An arrestee's identity obviously becomes a matter of legitimate state interest...While fears of a 'Big Brother' style government harassing or persecuting individuals based on genetic characteristics is always theoretically possible, that is not the purpose of the amendments before the court, nor is it at all likely."
Declan McCullagh is a contributor to CNET News and a correspondent for CBSNews.com who has covered the intersection of politics and technology for over a decade. Declan writes a regular feature called Taking Liberties, focused on individual and economic rights; you can bookmark his CBS News Taking Liberties site, or subscribe to the RSS feed. You can e-mail Declan at declan@cbsnews.com. 
Burn the Constitution; we have no use for it anymore.
For us to assume that we're safe because big brother has drawn some arbitrary line somewhere we hope we never get caught crossing someday is naive.
I hate the Californian legislature with such a passion (citizen speaking) that the only thing keeping me here is the summer and the Laker's.
I got a match and some expensive gasoline, now where's that Constitution?
- Simon
That is positively Orwellian. If knocking down one's door and entering one's house to extract evidence is "intrusive," then how much more intrusive is sticking a needle into one's body and extracting a sample?
Whoever "held" that forced blood samples were "minimally intrusive" should be impeached, disbarred, and never allowed within 500 feet of a courtroom.
Extracting from someone is about as intrusive as it gets!
I hate what I see America becoming...
Majority doesen't rule here, elected officials that the majority elects do. Read the constitution.
Afterall, if you have not committed a crime before this arrest then your DNA should return zero hits against you, but if you have committed a felony before and not been caught, then guess what, two cases solved for the price of one.
Also if you have served in the armed forces then you have already submitted DNA.
For example, if your DNA indicates a higher risk for some diseases, you might not get government-funded health insurance. If your DNA indicates middle-eastern ancestry, you might get a free trip to a Cuban summer camp. If you have genetic markers indicating possible violent tendencies, you could start getting military recruiting mail.
And if you have any genetic markers that correlate with voting behavior, good luck trying to get your voter registration accepted if the wrong party is in power.
The possibilities are exhilarating.
Police already have WAY too much power as it is. Right now they can legally execute you with a taser, deemed a torture device by the UN, and say "oh, he was resisting".
Besides, isn't forcing someone to give DNA w/o a warrant akin to making them testify against themselves?
In your dreams, you'll win. In reality though, you're going to be sore in the hospital for a few weeks - if you're lucky!
If this is where our country is going, we are well on the way to becoming a police state. But, the linked articles are old and the one on peer-to-peer even said the NET law was not being enforced. Has that changed? Are they starting to arrest people on these sorts of computer/internet things? Are they beginning to prosecute copyright infringement vigorously like child porn? (At least in the mainstream newspapers, I still don't hear it, as child porn stories are dime-a-dozen, but I don't see copyright or DMCA issues unless the perpetrator is selling the copied goods.)
You have your radar detector in your car, right? Well get Tor for your computer (www.torproject.org)
So many people are arguing that we are turning into a police state, yet you still keep voting in same politicians as before, as a testament to some form of sick battered wife syndrome with politics.
"Those who would trade freedom for safety and security are entitled to neither." [Benjamin Franklin]
Maybe shooting someone with a gun would be analogous to a spanking?
So much for innocent until proven guilty. So much for "the land of the free".
- by jlees May 29, 2009 10:27 PM PDT
- Quit whining and join the NRA and any political group that has a voice Like moveon.org its the only way you can get the Politicians attention, remember they were bought and paid for by the super rich but they were voted in by us.
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