When a federal judge in Pittsburgh ruled that prosecutors cannot, without a warrant, routinely collect DNA samples from arrestees for inclusion in a national database, he sparked an appeal that is now set to be argued before all 14 judges on the 3rd U.S. Circuit Court of Appeals.
At issue in United States v. Mitchell is perhaps one of the most important privacy rights issues facing the courts: whether routine DNA sampling should be considered no different from fingerprinting or photographing, or whether the government ought to be required to get a warrant or wait for a conviction before taking a genetic sample.
The Justice Department's appeal in Mitchell was initially argued before a three-judge panel in April. But the court last week took the rare step of slating the case for en banc reargument without releasing a decision from the three judges.
One possible explanation for the court's latest action is that one of the three judges may have written a persuasive dissent that caught the attention of the other judges during the period when the decision was being internally circulated.
An audio recording of the April argument yields a slew of clues but nothing conclusive about how the three judges were viewing the case because they asked tough questions of both sides.
To understand the appellate argument, it's necessary to understand the lower court ruling that set the stage for the appeal.
In November 2009, U.S. District Judge David S. Cercone of the Western District of Pennsylvania ruled against the government and held that DNA sampling of arrestees violates the Fourth Amendment.
Prosecutors argued that Congress authorized such DNA sampling of arrestees and that it serves the compelling government interest of identifying a suspect even better than fingerprints or photographs.
But Cercone reasoned that DNA testing goes too far because a genetic sample can reveal much more than a suspect's identity.
Although arrestees have a "diminished expectation of privacy," Cercone concluded that the practice of routinely obtaining genetic samples from all arrestees must be struck down as unconstitutional.
"To compare the fingerprinting process and the resulting identification information obtained therefrom with DNA profiling is pure folly," Cercone wrote.
"Such oversimplification ignores the complex, comprehensive, inherently private information contained in a DNA sample," Cercone wrote.
DNA samples, Cercone said, "may reveal private information regarding familial lineage and predisposition to more than 4,000 types of genetic conditions and diseases; they may also identify genetic markers for traits including aggression, sexual orientation, substance addiction and criminal tendencies."
Cercone said he agreed that the government "has a compelling interest in accurate criminal investigations and prosecutions, but only in proper sequence."
Courts, including the 3rd Circuit, have already held that those convicted of certain crimes may be subjected to DNA sampling, but Cercone said that he found "no compelling reason to unduly burden a legitimate expectation of privacy and extend these warrantless, suspicionless searches to those members of society who have not been convicted, are presumed innocent, but have been arrested and are awaiting proper trial."
Instead, Cercone concluded that defendant Ruben Mitchell had "the highest expectation of privacy" in his genetic code, and that this was not outweighed by any governmental interest in collecting the information.
Cercone ruled that the presumption of innocence -- which he described as the "moral polestar of our criminal justice system" -- requires a determination of guilt beyond a reasonable doubt to overcome defendants' "compelling and fundamental interests in human dignity and privacy" related to their DNA.
On appeal, Assistant U.S. Attorney Laura Schleich Irwin argued that Cercone should be reversed because his analysis "relied largely on the notion that the presumption of innocence alters the Fourth Amendment calculus and gives arrestees and pretrial detainees greater privacy rights in their identifying information than those convicted of a crime."
That logic, Irwin argued, "is flatly inconsistent with decisions holding that the presumption is a trial right and has no bearing on an assessment of privacy interests for Fourth Amendment purposes."
Irwin also argued that Cercone's concerns about DNA's broader privacy issues were a "red herring" because Congress included safeguards in the law to prevent any use beyond identification.
But Assistant Federal Public Defender Elisa A. Long urged the appellate court to uphold Cercone's ruling, arguing in her brief that the government cannot "forcibly extract" a DNA sample from her client based solely on his status as an arrestee and pretrial detainee, without a warrant and without reasonable suspicion to believe that it will produce evidence of a crime.
Long argued that Cercone was correct in holding that the government's interest in accurately investigating and prosecuting crime "does not outweigh a defendant's expectation of privacy in his DNA and the vast amount of personal and private data contained in a DNA sample."
In April, Irwin and Long argued the appeal before 3rd Circuit Judges Marjorie O. Rendell and Julio M. Fuentes and U.S. District Judge Robert B. Kugler of the District of New Jersey, sitting on the 3rd Circuit by invitation.
As Irwin began her argument, Rendell interrupted to press the prosecutor on the threshold issue of whether the appellate court should hear the appeal at all. Irwin insisted that Cercone's ruling would qualify as a collateral order that ought to be reviewed now because it involves important questions that are completely separate from the criminal charges and cannot be reviewed later.
Irwin swiftly faced a barrage of questions from Rendell and Fuentes on the issue of whether DNA testing is more intrusive than fingerprinting.
Fuentes wondered why the government wasn't willing to wait until it had secured a conviction before taking a DNA sample.
Fuentes also asked about the possibility that DNA would reveal much more than a defendant's identity, but Irwin insisted that Congress authorized only testing for identification purposes.
Kugler suggested that he shared the concerns, saying, "The science isn't there yet, but what if it changes?"
Rendell asked: "Isn't the real issue here whether you have a reasonable expectation of privacy in your bodily integrity?"
But Irwin insisted that DNA testing, which involves a swab of the inside of the mouth, is less intrusive than blood tests.
Long was also pressed with tough questions from Fuentes and Kugler on the issue of a defendant's expectation of privacy.
Kugler noted that, as a detainee who is being held without bail, Mitchell has already been subjected to the lowered privacy standards of prison inmates, and asked how he could maintain any greater expectation of privacy just because he has not yet been convicted.
Long urged the judges to look past the government's arguments about using DNA to identify the defendant and to recognize that the real purpose of the law is to expand the DNA database in order to investigate other crimes and to link suspects to evidence in unsolved cases.