DNA

US Court Considering Whether Forced DNA Collection for Arrests May Be Unconstitutional

Jul 28, 2011

The Electronic Frontier Foundation, The Center for Constitutional Rights, the National Immigration Project of the National Lawyers Guild, and Generations Ahead filed an amicus brief Monday stating DNA collection violates the 4th Amendment.

DNA US Court Considering Whether Forced DNA Collection for Arrests May Be Unconstitutional

Under current federal law, felony arrestees are required to supply authorities with a DNA sample as a condition for bail. The Electronic Frontier Foundation, The Center for Constitutional Rights, the National Immigration Project of the National Lawyers Guild, and Generations Ahead filed an amicus brief Monday stating DNA collection violates the 4th Amendment right to privacy.

The EFF press release states:

The FBI receives the DNA samples, conducts an analysis, and places a profile into CODIS, a national database. Those who are not eventually convicted of a crime must make a request if they want their information removed from the FBI’s system, while the data collected without cause from other individuals remains permanently.

The 9th Circuit affirmed the federal DNA Fingerprint Act in the case the United States of America vs. Jerry Albert Pool, ruling that was constitutional to collect DNA from those “arrested, facing charges, or convicted” of federal offenses, with U.S. District Court Judge Gregory G. Hollows stating, “The court holds that after a judicial or grand jury determination of probable cause has been made for felony criminal charges against a defendant, no Fourth Amendment or other Constitutional violation is caused.”

The amicus brief, which was filed with the 9th Circuit Court of Appeals, argues:

In this case, the government defends the warrantless, suspicionless search and seizure of a person’s most private and personal information—his DNA. The government bears a heavy burden to show the collection and unending retention of DNA from a person merely arrested for a crime falls into one of the limited exceptions to the Fourth Amendment’s warrant requirement. The government has not met its burden.

Following the 9th Circuit’s ruling, Michael Risher—staff attorney with the ACLU of Northern California—stated, “This gives the police an enormous incentive if they are interested in somebody to simply arrest that person on pre-textual charges in order to get a DNA sample from them.”

The 9th Circuit certainly seems to have made a gross error on their ruling: the government should have to prove exactly why DNA samples must be taken in order to procure the warrant. Otherwise, the DNA Fingerprint ACT is in direct violation of the 4th Amendment protection against unwarranted search and seizures.

To read the EFF’s full amicus brief, head over to EFF.org.

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