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The 1st U.S. Circuit Court of Appeals has ruled that the U.S. government doesn’t violate the Fourth Amendment by keeping a DNA profile and sample of a former probationer over his objections. On Aug. 11, a panel of the 1st Circuit ruled unanimously in Boroian v. Mueller that the government’s retention and matching of Martin Boroian’s lawfully obtained profile against other profiles in the FBI’s DNA database “does not constitute a search within the meaning of the Fourth Amendment.” The opinion, authored by Judge Kermit Lipez, also ruled that Boroian could not argue for the first time on appeal that the government’s retention of his DNA is “a continuing suspicionless seizure” under the Fourth Amendment. Noting cases from the D.C. Circuit and the 6th Circuit, Lipez wrote that the 1st Circuit judges “join the other courts to have addressed the issue in holding that the government’s retention and matching of Boroian’s profile against other profiles in [the FBI database] does not violate an expectation of privacy that society is prepared to recognize as reasonable, and thus does not constitute a separate search under the Fourth Amendment.” Lipez then clarified where the 1st Circuit falls on the spectrum of rulings. “We do not hold, as some courts have suggested, that once a DNA sample is lawfully extracted from an individual and a DNA profile lawfully created, the individual necessarily loses a reasonable expectation of privacy with respect to any subsequent use of that profile,” Lipez wrote. “Instead, we narrowly hold that once a qualified federal offender’s profile has been lawfully created and entered into [the FBI database] under the DNA Act, the FBI’s retention and periodic matching of the profile against other profiles in [the database] for the purpose of identification is not an intrusion on the offender’s legitimate expectation of privacy and thus does not constitute a separate Fourth Amendment search.” Lipez also noted that Boroian answered a question left open by the 1st Circuit’s 2007 ruling in the U.S. v. Weikert. Weikert held the government’s requirement for a probationer to give a DNA sample as a precondition for supervised release did not violate the Fourth Amendment. Weikert did not address whether it was constitutional for the government to keep, and use in DNA matching searches, a lawfully obtained DNA sample after the end of the probationary term or supervised release of the person who submitted the sample. Judith Mizner, the chief of the appeals unit at the Federal Public Defender’s Office in Boston and Boroian’s lawyer on the appeal, did not return a call for comment. At the June 10 oral argument of the case, Mizner told the court, “the issue is: DNA is more invasive than fingerprints.” The judges and Mizner had then discussed the implications of current DNA matching technology. A partial match of crime scene DNA with a DNA on the database could implicate relatives of the person whose DNA is stored by the FBI. “It’s an example of the intrusiveness and the potential scope,” of DNA retention, Mizner said. The U.S. Department of Justice represented the government defendants. In an e-mailed statement, spokesman Charles Miller said “the department is reviewing the circuit’s ruling at this time.” A Vermont federal court convicted Boroian in 2004 for making a false statement to the government. He was sentenced to one year of probation and a $100 special assessment. Boroian’s probation office ordered him to have his blood drawn for DNA. The office relied on the authority of the 2004 amendments to the DNA Analysis Backlog Elimination Act of 2000. Boroian’s June 2005 lawsuit against the FBI and the U.S. Probation Office asked the District of Massachusetts to deny or dismiss the blood draw order. Later the same month, Boroian submitted to the DNA collection to avoid “severe consequences.” His filed an amended complaint in March 2008, asking the court to order the U.S. Probation Office in the District of Massachusetts to destroy his DNA sample and expunge his records. He claimed the government’s retention of his DNA record after his conditional release violated his reasonable expectation of privacy. In March 2009, the District of Massachusetts dismissed his lawsuit, prompting his appeal to the 1st Circuit.

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