Courts in Unsettled Territory turn to the Map Available: United States v. Mitchell

We recently covered the Ninth Circuit’s split decision in Haskell v. Harris,1 which found DNA Fingerprinting of arrestees pursuant to California’s Prop 69 to be constitutionally sound. We also reported the Minnesota Supreme Court findings in In re Welfare of M.L.M. and State v. Johnson, rejecting challenges of DNA Fingerprinting based on 4th Amendment and Equal Protection grounds.

An Update from Colorado. An ongoing prosecution, United States v. Fricosu,2 became the most recent constitutional challenge to DNA fingerprinting upon arrest. The defendant, Ramona Fricosu, had her DNA sampled as part of her arrest pursuant to the DNA Fingerprinting Act of 2005, 42 U.S.C. §14135(a). She filed a motion challenging the constitutionality of the practice, requesting that the court order her DNA sample and CODIS profile be destroyed. Fricosu challenged the constitutionality of the practice on Fourth Amendment grounds. On February 22, 2012, Colorado District Judge Blackburn denied the motion (pdf).

Specifically, Judge Blackburn noted that only two federal appellate courts have considered the constitutionality of the DNA Fingerprinting Act as it applies to arrestees: the Ninth Circuit ruling of United States v. Pool3 and the Third Circuit ruling of United States v. Mitchell.4 As we noted previously, the Ninth Circuit opinion in United States v. Pool has no precedential value, the opinion having been vacated. Judge Blackburn followed the road map set out by the Third Circuit without any notable deviations. Like the Third Circuit, Judge Blackburn applied a totality-of-the-circumstances analysis and considered two separate searches: the DNA sampling and the subsequent creation of the CODIS profile. Quickly dismissing the first search as minimally invasive, Judge Blackburn’s opinion focused on the nature of the second search.

As has become commonplace in these opinions on DNA fingerprinting, the Judge focused on “junk DNA” and what “junk DNA” can tell us about “physical and medical characteristics.” Judge Blackburn, agreeing with the Third Circuit, reasoned that there is a significant difference in the “amounts of private information” included in a DNA sample and a CODIS profile, the latter of “which at present reveals only identity.” Judge Blackburn was not persuaded by the “potentially nefarious uses to which this information might be put,” citing a lack of evidence that “such hypothetical abuses are either likely or imminent.” Balancing the privacy interests against the government’s legitimate interests in the information, Judge Blackburn found there are sufficient safeguards in the statutes that limit law enforcement uses of the DNA sample to identification purposes and that deter and penalize abuse of law enforcement discretion or misuse of the DNA profiles.

Mitchell Not Moving on Up. On March 19, 2012, the U.S. Supreme Court denied (pdf) the petition of certiorari in United States v. Mitchell, the Third Circuit opinion upon which the Colorado District Court relied in Fricosu the previous month. Justice Kagan did not take part in the consideration or decision. It seems likely that the Justices are content to let the constitutionality of DNA fingerprinting upon arrest percolate a while longer at the lower court level and will not grant certiorari unless a clear divide among the federal circuits becomes apparent.
1Haskell v. Harris, — F.3d — (9th Cir. (Cal) 2012)
2 United States v. Fricosu, — F.Supp.2d – (2012), 2012 WL 592322
3United States v. Pool, 2009 WL 2152029 (E.D. Cal, 2009), affirmed by 621 F.3d 1213 (9th Cir. (Cal.) 2010), rehearing en banc granted by 646 F.3d 659 (9th Cir. 2011), opinion vacated as moot by 659 F.3d 761 (9th Cir. 2011)
4United States v. Mitchell, 652 F.3d 387 (3rd Cir. 2011) (en banc), pet. for cert. filed (Nov. 22, 2011)(No. 11-7603, 11A384), cert. denied – S.Ct. – (Mar. 19, 2012).