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The 2d U.S. Circuit Court of Appeals has ruled that New York’s statute authorizing the collection of DNA samples from certain classes of convicted felons does not violate the Fourth Amendment prohibition against unreasonable searches and seizures. Nicholas v. Goord, No. 04-3887-pr. Writing on behalf of the court, Chief Judge John M. Walker Jr. upheld the finding of Judge Kevin Duffy of the Southern District of New York that the DNA-database statute was constitutional, albeit on different grounds. Duffy had agreed with a report and recommendation made by Magistrate Judge Gabriel W. Gorenstein that the case brought by several convicted felons who submitted DNA samples to the state database should be dismissed. Duffy applied a traditional Fourth Amendment balancing test, finding that the state’s significant interest in “having information readily available to aid criminal investigations” outweighed the plaintiffs’ minimal interest in not having to contribute their DNA to indexing. N.Y. Executive Law � 995 et seq., specifies that DNA samples taken for the database are analyzed only for markers “having value for law enforcement identification purposes.” The U.S. Supreme Court, according to Walker, has recognized that suspicionless search has to serve “some special need distinct from normal law-enforcement.” Therefore, searches conducted in the absence of individualized suspicion are subject to the special-needs test. The key here, said Walker, is that the DNA-indexing statute serves a special need outside of normal law enforcement. “Because the state’s purpose in conducting DNA indexing is distinct from the ordinary ‘crime detection’ activities associated with normal law-enforcement concerns, it meets the special-needs threshold,” he wrote. While the DNA samples might eventually help police identify the perpetrator of a crime, at the time of collection, he said, the samples do not provide evidence in themselves that a crime has been committed. The physical intrusion required to take a DNA sample “is far outweighed by the government’s strong interests in obtaining from plaintiffs the uniquely effective identifying information that DNA provides,” he said. Also, “the intrusion into plaintiffs’ privacy resulting from state’s practice of analyzing and maintaining DNA records does not outweigh the government’s strong interests,” he said. The statute as written, he said, “does not provide for sensitive information to be analyzed or kept in its database,” he said. “Rather, it provides only for the analysis of identifying markers.” A key point for the court was that the samples taken are of “junk DNA,” which has “no known function, except to accurately and uniquely establish identity.” Walker added, “Although science may some day be able to unearth much more information about us through our junk DNA, that capability does not yet exist, and, more importantly, the New York statute prohibits such analysis.” The collection and maintenance of DNA information “plays the same role as fingerprinting,” he said. “Given that the state likely already has a plethora of information about plaintiffs, in light of their status as convicted felons…the additional intrusion effected by the DNA statute is insufficient to outweigh the state’s strong interest in maintaining a DNA index.”

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