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Taking DNA samples from criminal defendants on supervised release does not violate their constitutional rights because the government’s interest in building a DNA database outweighs the minimal intrusion into the offender’s diminished expectation of privacy, the 3rd U.S. Circuit Court of Appeals has ruled. In its 57-page opinion in United States v. Sczubelek, the court voted 2-1 to reject a challenge to the DNA Act in which convicted bank robber Paul Sczubelek argued that the compelled extraction of his blood to obtain a DNA sample — without individualized suspicion of any criminal wrongdoing — violates his Fourth Amendment right to be free from unreasonable search and seizure. Writing for the majority, U.S. Circuit Judge Jane R. Roth said she agreed instead with Justice Department lawyers who argued that the government has a compelling interest in the collection of identifying information of criminal offenders. “A DNA database promotes increased accuracy in the investigation and prosecution of criminal cases. It will aid in solving crimes when they occur in the future. Equally important, the DNA samples will help to exculpate individuals who are serving sentences of imprisonment for crimes they did not commit and will help to eliminate individuals from suspect lists when crimes occur,” Roth wrote in an opinion joined by 3rd Circuit Chief Judge Anthony J. Scirica. “In view of the importance of the public interests in the collection of DNA samples from criminal offenders for entry into a national DNA database and the degree to which the DNA Act serves to meet those interests, balanced against the minimal intrusion occasioned by giving a blood sample and the reduced privacy expectations of individuals on supervised release, we conclude that the collection of DNA samples from individuals on supervised release, pursuant to the DNA Act, is not an unreasonable search,” Roth wrote. But in a spirited dissent, U.S. Circuit Judge Theodore A. McKee said he would have struck down the DNA Act as unconstitutional because it contains no requirement of “individualized suspicion.” “The Supreme Court has never struck the Fourth Amendment balance in favor of a law enforcement intrusion that was not based on some level of individualized suspicion,” McKee wrote. According to court papers, Sczubelek was convicted in 1994 of three counts of bank robbery and was sentenced to 87 months in prison and three years of supervised release. At the time of his sentence, the conditions of Sczubelek’s supervised release did not expressly include submitting a DNA sample. Sczubelek was released from prison in August 2000 and placed on home confinement until he began serving his term of supervised release two months later. Soon after, Congress passed the DNA Act, a law that, among other things, required the submission of a DNA sample as a condition of supervised release. When a probation officer informed Sczubelek that he was required to submit to DNA collection, Sczubelek refused. But Chief U.S. District Judge Sue L. Robinson of the District of Delaware ordered Sczubelek to submit to the test, but stayed her order when he appealed. On appeal, Sczubelek argued that the DNA Act conflicts with a long line of Supreme Court decisions that calls for individualized suspicion to support searches, and cannot qualify for the rare exception to that rule known as the “special needs” test. SPLIT ON REASONING Roth found that every federal circuit to address the constitutionality of the DNA Act has upheld the law, but have split on their reasoning. The 4th, 5th and 9th circuits have upheld the law under a “reasonableness” standard articulated in the U.S. Supreme Court’s 2001 decision in United States v. Knights. By contrast, the 2nd, 7th and 10th circuits have upheld the law under the special needs test announced by the U.S. Supreme Court in its 1987 decision in Griffin v. Wisconsin, which held that probation officers have a “special need” to supervise probationers that justifies a departure from the normal warrant and probable cause requirements. Roth sided with the first group, finding that since the collection of DNA “goes well beyond the supervision by the probation office of an individual on supervised release,” it was necessary to examine the reasonableness of DNA testing under the more rigorous Knights standard which calls for a “totality of the circumstances” inquiry. Applying that test, Roth found that the DNA Act passed constitutional muster. “The intrusion of a blood test is minimal,” Roth wrote. “While this slight intrusion into an ordinary citizen’s privacy is unconstitutional, individuals on supervised release, like individuals on probation, do not enjoy the absolute liberty to which every citizen is entitled.” Roth noted that when Sczubelek was arrested, he was photographed and his fingerprints were taken. After his felony conviction, she said, “his identity became a matter of compelling interest to the government, and these marks of identification, the fingerprints and the photographs, became a permanent record.” Likewise, Roth concluded, Sczubelek’s DNA “is a further — and in fact a more reliable — means of identification.” Roth also found that maintaining a DNA database will promote both of the government’s primary goals of probation — rehabilitation and protecting society from future criminal violations — by deterring convicts from committing crimes in the future. Sczubelek’s court-appointed lawyer, Eleni Kousoulis of the Wilmington, Del., office of Federal Public Defender, argued that under the Knights test, the court must declare the DNA Act unconstitutional because it requires the submission of a DNA sample without individualized suspicion of criminal wrongdoing. Roth disagreed, saying Knights “does not establish the constitutional floor below which searches are unconstitutional.” Instead, Roth found that under the totality of the circumstances test announced in Knights, DNA testing compares directly to fingerprinting, which does not require additional individualized suspicion. ‘STANDARDLESS’ ANALYSIS In dissent, McKee argued that Roth’s analysis of the reasonableness inquiry “is simply too amorphous and standardless to have any real Fourth Amendment meaning in the absence of individualized suspicion.” To uphold a coerced DNA test on Sczubelek, McKee said, “we must conclude that it is reasonable to catalogue his DNA even though he has committed no new crimes because of the possibility, however remote or theoretical, that he may one day commit another crime. We must further conclude that the likelihood of his apprehension is so slight that the identifying information inside his DNA will be necessary to his apprehension even though his fingerprints, photograph and other personal information is already in law enforcement files, and even though he has heretofore not demonstrated any particular prowess for avoiding arrest and conviction.” McKee concluded that “the unreasonableness of upholding the DNA Act based upon such a set of assumptions is why it is so important that we not allow such intrusions in the absence of some level of individualized suspicion.” Likewise, McKee rejected the majority’s reliance on rehabilitation. “If we are to conclude that the DNA Act is a reasonable intrusion upon the privacy of an entire population of suspicionless individuals, we must assume that the least likely to reoffend needs the same level of ‘rehabilitation’ as the most likely to reoffend; and we must do so even though the least likely to reoffend will commit no new crimes,” McKee wrote. “This dragnet approach ignores the realities of the recidivism it tries to rely upon. Recidivism rates vary depending largely on the offense of conviction, age at time of first arrest, economic status and countless other demographics too variable to justify a nondiscriminating search of everyone belonging to the class of persons having criminal records,” McKee wrote. Sczubelek, he said, “has all but completed his rehabilitation. Yet, the scarlet letters of his DNA remain embroidered into the government’s database long after he finishes his court supervision and ages out of any statistically significant chance of recidivism.”

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