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A fiercely divided 9th Circuit en banc panel upheld the federal government’s DNA databank Wednesday, saying the high-tech tool doesn’t violate the Fourth Amendment’s protection against unreasonable searches. A convicted bank robber named Thomas Kincade had challenged the constitutionality of collecting identifying genetic material, but the court said law enforcement interests outweigh privacy concerns. Federal authorities, like officials in California and 48 other states, collect certain convicts’ DNA as a crime-fighting tool. “The interests furthered by the federal DNA Act are undeniably compelling. By establishing a means of identification that can be used to link conditional releasees to crimes committed while they are at large, compulsory DNA profiling serves society’s ‘overwhelming interest,’” wrote 9th U.S. Circuit Court of Appeals Judge Diarmuid O’Scannlain for the plurality. He was joined by Chief Judge Mary Schroeder and Judges Barry Silverman, Richard Clifton and Consuelo Callahan. Judge Ronald Gould wrote a separate concurrence. Five dissenters issued an Orwellian warning — “1984 arrives twenty years later than predicted” — but O’Scannlain and other judges used a “totality of circumstances” test in siding with the government. The decision flabbergasted defense attorneys, but prosecutors were pleased. “The continued use of this program, which affects only violent felons, will help us solve more crimes and prosecute more criminals,” said Thom Mrozek, spokesman for the Central District of California U.S. Attorney’s Office. Kincade’s appeal directly challenged the collection of DNA for the federal databank, which was established by the 2000 DNA Act and expanded with the USA Patriot Act in 2001. Besides collecting from certain federal convicts, the program also provides money for state DNA collection. Most states also forward their genetic profiles to the federal databank. California Attorney General Bill Lockyer led a coalition of states filing amicus curiae briefs in support of the feds. He welcomed the decision and said the ruling lined up with other courts. “Had the Ninth Circuit ruled contrary to other federal and state courts, the successful California program � could have been subject to unnecessary constitutional questions and challenges,” Lockyer said in a statement. Kincade’s attorney, Los Angeles Supervising Deputy Federal Public Defender Monica Knox, warned that if the decision stands, the government would continue to broaden DNA collection, jeopardizing not just prisoners’ rights but everyone’s. “I’m going to ask the Supreme Court for review,” Knox said. In Gould’s concurrence, the judge reasoned that DNA collection qualified as a “special need.” That argument allows the Fourth Amendment to be circumvented for non-law enforcement purposes, such as random drug testing of high schoolers. “Stated succinctly, the DNA program is likely to deter future crime of the supervised releasee because it increases the chance that a person on supervised release will be caught if he or she commits a new crime,” Gould wrote. “This special need � looks forward to crime in the future while the felon is on supervised release.” The opinion contains a good deal of sniping among the judges, especially in the footnotes. Some of the most colorful language comes from dissenters, who repeat warnings by U.S. Constitution framers about the importance of guarding against “corruption and tyranny.” The dissents also mention former FBI Director J. Edgar Hoover and George Orwell, author of the dystopian novel “1984.” “Even governments with benign intentions have proven unable to regulate or use wisely vast stores of information they collect regarding their citizens. The problem with allowing the government to collect and maintain private information about the intimate details of our lives is that the bureaucracy most often in charge of the information ‘is poorly regulated and susceptible to abuse,’” Judge Stephen Reinhardt wrote. He was joined by Judges Harry Pregerson, Alex Kozinski and Kim Wardlaw. Kozinski wrote a separate dissent, as did Judge Michael Daly Hawkins. Kincade was convicted of bank robbery in 1993. After he got out of prison, he was required to submit blood to the government as part of his supervised release. He fought first in front of Central District Judge Dickran Tevrizian, who ruled against him. His decision was overturned by a three-judge 9th Circuit panel — Reinhardt and Judge Richard Paez in the majority, O’Scannlain dissenting — last fall. Knox, of the L.A. federal defender’s office, said she had a sense of which way the 11-member en banc panel was going to go during oral arguments, “but I always held out hope because I’m so incredibly right.” She said the U.S. Supreme Court has never agreed that a totality of circumstances argument overrides the Fourth Amendment’s requirement of “reasonable suspicion” before a search. The decision in United States v. Kincade, 04 C.D.O.S. 7542, relies on another 9th Circuit case that went to the U.S. Supreme Court, United States v. Knights, 534 U.S. 112, which was argued by the Northern District federal public defender’s office. That case involved the search of a probationer in connection with arson at a PG&E facility. Although the defender’s office lost 9-0, Chief Assistant Geoffrey Hansen said the decision had a silver lining — probationers could only be searched if there were some level of “founded suspicion.” Wednesday’s decision, Hansen said, throws that requirement out the window. He said he hopes that will encourage Supreme Court justices to take up Kincade. “I think they’ve got to,” he said. The federal databank has profiles from 1.6 million people and 78,000 crime scenes. California’s DNA databank contains the profiles of 245,000 convicted felons. Proposition 69, which will appear on the state’s November ballot, would greatly expand that by requiring anyone arrested for a felony to submit DNA.

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