A Federal Appeals Court Approves the DNA Profiling of Criminals:
Are Innocent People Next?

In the case of United States v. Kincade, the U.S. Court of Appeals for the Ninth Circuit recently upheld the compulsory DNA profiling of certain convicted federal offenders, through mandatory blood sampling.

Although the court's ruling was limited to convicted felons, several dissenters worried that the case would become a precedent for authorizing the government to collect DNA samples from everyone - guilty and innocent alike.

That prospect is indeed worrisome, and while the Ninth Circuit opinions offer grounds for holding the line at felons, unfortunately, the relevant Supreme Court precedents are equivocal.

How Blood Sampling and DNA Analysis Work

How does the blood sampling system at issue in the Kincade case work? Once taken, blood samples are analyzed by the FBI, which identifies and records each individual's "genetic fingerprint."

Such collection, analysis, and reporting are part of a larger regime instituted by federal statute. The statute provides directly for compiling federal offenders' DNA and, in addition, appropriates $170 million to support similar efforts among the 50 states.

After the DNA analysis is complete, resulting records are loaded into the FBI's Combined DNA Index System ("CODIS"). CODIS is an enormous, central database linking, among other things, DNA profiles from federal, state, and territorial DNA collection programs.

The information gathered and recorded in this case comes from so-called "junk DNA" - stretches of DNA not associated with known physical or medical characteristics. But questions remain about whether such DNA truly provides no medical information.

The Kincade Case

Thomas Cameron Kincade pleaded guilty to robbing a bank using a firearm. He was sentenced to imprisonment, followed by supervised release. After his incarceration, Kincade's probation officer asked him to provide a blood sample for DNA profiling. Kincade refused and challenged the statute under which his DNA was to be collected, on the ground that it violated his Fourth Amendment right against unreasonable searches and seizures.

An eleven judge panel of the Ninth Circuit rejected his claims. Finding that people who are incarcerated, or on parole, probation, or supervised release for their crimes, have a diminished expectation of privacy and present an increased likelihood of recidivism, a plurality of judges concluded that collecting such people's blood for DNA profiling -- even in the absence of any individualized suspicion that they have committed further crimes - is a reasonable intrusion.

DNA and the Increasing Irrelevance of Physical Invasiveness

In the Kincade decision, the judges in the majority -- as well as several of the dissenters -- discussed the intrusiveness (or non-intrusiveness) of taking a person's blood against his will. In the end, though, the significance of this case has little to do with physical invasiveness.

Currently, it may be most practical to collect DNA through blood samples. However, the reality, now -- and certainly in the future -- is that DNA may be gathered from virtually any location at which a person has spent time.

As a plurality of judges explained, "unlike fingerprint evidence . . ., there is no simple way to avoid leaving DNA evidence at the scene of a crime. Just as DNA permeates blood, semen, and saliva, it is recoverable from hair and epidermal cells - which even the most sophisticated criminals cannot help but leave behind."

In other words, collecting DNA does not necessarily entail physical intrusion.

And therefore, as dissenting judge Alex Kozinski argues, "it is important to recognize that the Fourth Amendment intrusion here is not primarily the taking of the blood, but seizure of the DNA fingerprint and its inclusion in a searchable database."

Can the Ninth Circuit's Decision Be Limited to Convicts?

For a majority of the eleven-judge appeals panel, the fact that only convicted criminals will suffer these invasions was an extremely important ingredient in the decision to uphold the DNA profiling.

The dissenters, on the other hand, could find no principled way to limit the use of DNA profiling to criminals. Judge Kozinski, for example, says in his dissent that "with only a little waggling, we can shoehorn the rest of us in."

I will therefore address the question that seems to divide the majority and the dissent in this case: how would a general DNA collection regime - one that compiled DNA from everyone in this country - fare under current Supreme Court precedents?

DNA Profiles: What's the Big Deal?

Assume that, as I have suggested, the government may collect your DNA without piercing your skin or doing anything physically objectionable to you.

Assume also - as the plurality does in Kincade - that the portion of your DNA to be analyzed will not reveal your medical and psychological genetic makeup.

On these assumptions, why isn't the creation of a comprehensive DNA databank (like CODIS, but universal) a trivial matter?

Consider what is possible if the government has your DNA (identified as such). Police or other officials can now collect evidence from just about any place and determine whether or not you have ever been there. Say you attended an Alcoholics Anonymous meeting at an office building three blocks from your house. With an identified sample of your DNA and sweepings from the building, the government could tell that you had been there.

Government officials could also figure out that you had spent time in a specific video store or a given doctor's waiting room or a hotel room.

Your DNA leaves a signature wherever you go, and those in possession of your DNA profile are equipped with what they need to decode that signature.

Is DNA Profiling a Search?

The Supreme Court of the United States has provided contradictory signals on what the Fourth Amendment would have to say on the issue of DNA collection.

On the one hand are the tracking and garbage cases. In United States v. Knotts, the Supreme Court held that attaching an electronic monitoring device to a vehicle (which permits the police to track the vehicle's whereabouts) does not invade any legally cognizable Fourth Amendment privacy interest.

Why? Because the police could have collected the exact same information simply by following the suspect's car. The monitoring device, in other words, only made more efficient the collection of information available by simple visual observation on the public roadways.

The Court also held in California v. Greenwood that once a person puts her garbage out on the curb, the police may rummage through that garbage, without implicating any Fourth Amendment privacy interests.

Why? Because by leaving a bag of garbage for collection by a third party, a person divests herself of any personal interest in what happens to that garbage. Therefore, law enforcement need not have either the former owner's permission or a good reason to look through the garbage.

As the police know, of course, most people have a hard time avoiding the very revealing nature of their garbage. That may be one reason that snoops see it as a gold mine for finding out personal information.

On the basis of Knotts, it would appear that surreptitiously collecting a person's DNA from discarded matter would not implicate the person's Fourth Amendment rights.

For this reason, in his dissent in Kincade, Judge Kozinski recognizes that collecting materials for DNA might not be a "search" at all, for Fourth Amendment purposes. "By glomming onto blood already extracted for other purposes, the government would have eliminated what the plurality identifies as the most serious negative factor - the piercing of the skin."

Based on Greenwood, moreover, it would seem that using DNA to track a person's whereabouts might also have no Fourth Amendment consequences, as long as police did not unlawfully enter any premises from which DNA would subsequently be taken.

Yet many people may think that both Knotts and Greenwood were wrongly decided. When we discard items, we may not retain an ownership interest, but we do have an expectation that the items will remain secret until any link to us has been severed.

We might also think that following people is very intrusive (and that stalking laws reflect as much).

Yet Knotts and Greenwood are the law of the land. And they suggest that collecting and storing convicted criminals' DNA is not only "reasonable" for Fourth Amendment purposes; it has no Fourth Amendment implications at all, even when directed at perfectly innocent people against whom there is no legitimate concern about future crime.

Fortunately, Knotts and Greenwood are not the only relevant Supreme Court precedents.

Another Line of Cases: Recognizing Privacy Violations Without Physical Invasions

The Supreme Court has also decided some cases, more recently, that suggest a different approach. Historically, a privacy invasion would have seemed greatest when a physically invasive observation took place. For example, rummaging through someone's house and private papers and probing his person would appear to embody the "search" that invades a reasonable expectation of privacy for Fourth Amendment purposes.

Given that paradigm, it would follow that going through garbage or tracking a vehicle outdoors would fail even to trigger the relevant constitutional interests.

But with the rise of new technologies, the Supreme Court has begun to understand that one's privacy can be effectively invaded without physical intrusion, simply by collecting what has ostensibly been discarded. In Kyllo v. United States, the Supreme Court said that collecting and recording heat that emanates from a person's home represents a Fourth Amendment search of that home and thus requires a warrant.

The heat in question was discarded (and thus, like garbage, not owned by the resident). Furthermore, its collection entailed no physical entry onto anyone's premises. Nonetheless, the Court recognized that the pattern of the heat revealed information about the inside of the home that was private - and that the privacy of such information must be protected by the Fourth Amendment.

In Ferguson v. City of Charleston, another recent case, the Supreme Court held that cocaine-testing urine collected from women giving birth in a public hospital implicated the women's Fourth Amendment rights.

Once again, urine, like thermal emissions from a home, is garbage that a person has eliminated and disseminated to third parties. And the women in Ferguson had voluntarily surrendered their urine to medical personnel for some testing. Still, the Court said, performing an additional test on that urine to find out other information constituted a Fourth Amendment search.

Though it has not explicitly questioned Knotts or Greenwood, then, the Court has come to see that however easy it is to collect something (and however available that thing is for collection out in the world), the fact that private information may be gleaned from it imbues the collection itself with constitutional significance.

Universal DNA Collection: What Will the Supreme Court Say?

So where does that leave us? On the question of people convicted of crimes, I suspect that the Supreme Court will agree with almost every court that has addressed the question and approve DNA compilation.

The reasoning is that once a person commits a crime, that person's privacy interest diminishes and society's interest in keeping tabs on his conduct simultaneously grows. For most judges, and most people, the difference between a convict (or even an ex-convict, whose DNA will remain permanently searchable) and a law-abiding citizen is one of great significance.

Nonetheless, the Ninth Circuit majority does not appear poised to allow more general DNA collection. Though the dissenting judges may not like it, the distinction between convicts and everyone else strikes most people as a compelling one.

For that reason, it is heartening that none of the opinions from the Ninth Circuit court of appeals embraces the argument that seems eminently available in light of Supreme Court precedents: that compiling DNA - apart from the particular method in question here, drawing blood - is not a Fourth Amendment search at all and neither are the later investigations that police will perform using that collected information.

It seems that relying on the logic of Greenwood and Knotts to defend DNA data collection - however broad - poses an unappealing prospect to the judges. And that, in turn, bodes well for the issue's ultimate resolution in the United States Supreme Court.