Thursday, March 10, 2011

Circuit Split Watch: Book 'Em (and Collect DNA?)

This article first appeared in the March 9, 2011, issue of the National Law Journal's Supreme Court Insider.

Every day, throughout the country, police arrest and book suspects. They take fingerprints and mug shots. A growing question that could reach the Supreme Court in the months ahead is whether police can also routinely collect DNA from suspects, either at booking or otherwise before conviction. 

Courts have reached different conclusions, illustrated by two pending federal appellate cases.

In Haskell v. Brown, argued last summer and still pending before the U.S. Court of Appeals for the 9th Circuit, Judge Charles Breyer of the U.S. District Court for the Northern District of California refused to preliminarily enjoin routine DNA collection from arrestees, permitted by California law.

“An individual might wear gloves,” Judge Breyer, the brother of Justice Stephen Breyer, explained, “thwarting fingerprint identification, or wear a mask, thwarting the use of photographs. The more ways the government has to identify [a person], the better chance it has of doing so accurately.” The court also noted DNA’s ability to crack cold cases (think of last week’s “East Coast rapist” arrest, based on a DNA link to a dozen unsolved assaults, dating back to 1997).

Across the country, Judge David Cercone of the U.S. District Court for the Western District of Pennsylvania reached a different result—this time reviewing federal law. 

DNA collection from arrestees, without a warrant, is an unreasonable search under the Fourth Amendment, Judge Cercone concluded in United States v. Mitchell. It is “pure folly” to compare DNA with fingerprints, in terms of “identification information obtained.” DNA “may reveal private information regarding familial lineage and predisposition to over four thousand types of genetic conditions and diseases.”

On appeal, the 3rd Circuit heard oral argument in March 2010. However, before ruling, the court sua sponte ordered rehearing en banc, held last month. A decision is pending.

The deep conflict highlighted in these cases—essentially powerful crime-solving tools versus extensive privacy invasion—may help explain why the 3rd and 9th Circuits have not ruled quickly (and why the 3rd Circuit reheard Mitchell).

This conflict, along with the nationwide, constitutional implications of routine DNA collection, is likely to keep the challenges coming, increasing the chances of a circuit split and Supreme Court intervention.

The Supreme Court has already shown interest in DNA-related questions, just this week deciding Skinner v. Switzer. In Skinner, a different strand of the DNA debate, a convicted prisoner, not the government, wanted to utilize DNA to assist his case. The Court held that he can bring a §1983 action “seeking DNA testing of crime-scene evidence.”