Finding that DNA profiling samples are “fingerprints for the 21st century,” a sharply divided federal appeals court has ruled that the government has the right to routinely collect DNA samples from anyone who is arrested for inclusion in a national database.

“DNA profiling is simply a more precise method of ascertaining identity and is thus akin to fingerprinting, which has long been accepted as part of routine booking procedures,” U.S. Circuit Judge Julio M. Fuentes wrote in United States v. Mitchell .

On an 8-6 vote, the 3rd U.S. Circuit Court of Appeals en banc rejected a challenge to the constitutionality of the DNA Act of 2005 and reversed a lower court’s decision that struck down the law.

“Because DNA profiles developed pursuant to the DNA Act function as ‘genetic fingerprints’ used only for identification purposes, arrestees and pretrial detainees have reduced privacy interests in the information derived from a DNA sample,” Fuentes wrote for the majority.

The six dissenters, led by U.S. Circuit Judge Marjorie O. Rendell, complained that “collecting and analyzing DNA is much more intrusive than either fingerprinting or photographing.”

Rendell said she believes the privacy rights of arrestees “are not so weak as to permit the government to intrude into their bodies and extract the highly sensitive information coded in their genes.”

But Fuentes found that the DNA Act calls for samples that are designed only for identification purposes, using a relatively small number of genetic markers — none of which reveals physical or medical traits — so that the sample “yields precise information about identity but little or no other personal information.”

Fuentes also found that DNA is superior to fingerprints and photographs.

“The government’s ability to accurately identify a person through their DNA profile cannot be entirely substituted by other means of identification, such as fingerprints or photographs. DNA analysis enables the government to identify a person who has changed their appearance, either permanently or temporarily,” Fuentes wrote.

Fuentes was joined by Judges Dolores K. Sloviter, Anthony J. Scirica, D. Brooks Smith, D. Michael Fisher, Michael A. Chagares, Kent A. Jordan and Thomas M. Hardiman.

Rendell was joined in her dissent by Chief Judge Theodore A. McKee and Judges Maryanne Trump Barry, Thomas L. Ambro, Joseph A. Greenaway Jr. and Thomas I. Vanaskie.

The ruling overturns a November 2009 decision by U.S. District Judge David S. Cercone of the Western District of Pennsylvania that said prosecutors cannot, without a warrant, routinely collect DNA samples from arrestees for inclusion in a national database.

Cercone held that DNA sampling of arrestees violates the Fourth Amendment, rejecting the government’s argument 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.

DNA testing prior to any conviction goes too far, Cercone found, 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.”

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 a defendant’s “compelling and fundamental interests in human dignity and privacy” related to his or her DNA.

Now the 3rd Circuit has ruled that Cercone’s analysis was flawed and failed to account for the diminished privacy expectations of those who have been arrested.

Fuentes said Cercone “concluded that the presumption of innocence outweighed this diminished expectation of privacy because of the ‘complex, comprehensive, inherently private information contained in a DNA sample.’ … However, this conclusion is based on a flawed premise.”

Although DNA “samples” may reveal private information about familial lineage and thousands of genetic conditions, Fuentes found that DNA “profiles” are much simpler and “reveal only identity, in which arrestees have a diminished expectation of privacy.”

Assistant U.S. Attorney Laura Schleich Irwin argued the appeal for the government.

Assistant Federal Defender Elisa S. Long argued for Mitchell.

(Copies of the 95-page opinion in United States v. Mitchell , PICS No. 11-3751, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information. Some cases are not available until 1 p.m.) •