Parolees Cannot Be Forced to Give DNA Samples, Court Rules

Forcing paroled inmates to provide blood samples for a federal DNA databank violates the parolees’ constitutional rights unless there is reasonable suspicion they committed a crime, the U.S. 9th Circuit Court of Appeals ruled Thursday.

Legal experts said the 2-1 decision -- the first detailed ruling by a federal appeals court on the issue -- is certain to be appealed by federal prosecutors and likely to be reviewed either by a larger panel of 9th Circuit judges or by the U.S. Supreme Court.

“Reasonable suspicion must exist before the government may compel parolees to submit to the extraction of blood from their bodies contrary to their wishes,” wrote Judge Stephen Reinhardt.

DNA samples submitted to the FBI’s DNA databank have been used in 9,000 investigations, according to government figures.

Reinhardt acknowledged that DNA testing had led to exoneration of wrongfully convicted people and to solving crimes. But he expressed serious reservations about the creation of massive databanks such as the one in this case.

“However intermingled with good intentions,” statutes requiring DNA testing for databanks represent an “alarming trend whereby the privacy and dignity of our citizens [are] being whittled away by imperceptible steps,” Reinhardt wrote, quoting an opinion by the late Supreme Court Justice William O. Douglas on eavesdropping. “The fact that these statutes currently affect only those individuals most susceptible to state supervision renders this threat no less important,” added Reinhardt.

Judge Diarmuid F. O’Scannlain issued a sharp dissent. He said that Reinhardt, joined by Judge Richard A. Paez, had improperly overruled a 1995 decision by the 9th Circuit permitting the state of Oregon to compel convicted murderers and sex offenders to provide blood for a DNA databank.

In that ruling, the 9th Circuit said the Oregon program did not violate the constitutional guarantee against illegal searches and seizures. The court based its decision on several factors, including the reduced expectation of privacy held by people convicted of those crimes. In addition, the court said requiring blood extraction was a “relatively minimal intrusion into these persons’ privacy interests,” and that the public had an “incontestable interest in preventing recidivism and identifying and prosecuting murderers and sexual offenders.” Finally, the court said it was likely that a DNA databank would advance that interest.

Reinhardt countered in his opinion that the earlier 9th Circuit decision had been effectively overruled by two subsequent U.S. Supreme Court decisions that the 9th Circuit is obliged to follow.

Numerous court precedents have established that extracting blood constitutes a search under the 4th Amendment. Normally, a law enforcement agency needs either probable cause or in some instances individualized suspicion to conduct a search.

In some cases, courts have permitted searches without meeting either of those requirements because the searches serve “special needs” beyond law enforcement. For example, the Supreme Court has permitted urine testing of students seeking to participate on sports teams to prevent injury and drug dependency. That decision emphasized that test results were not turned over to law enforcement.

However, three years ago the high court struck down an Indianapolis highway checkpoint program that authorized blanket searches for the discovery and interdiction of illegal drugs. The Supreme Court said this program did not serve a “special need” because its primary purpose was to detect evidence of ordinary criminal wrongdoing. A year later, the high court applied the same rationale when it struck down a South Carolina state hospital program that tested pregnant women for drug use and made the evidence available to police.

Reinhardt emphasized those rulings in his opinion Thursday, saying that the DNA program’s primary purpose was for law enforcement, not a “special need.”

Reinhardt rejected the government’s contention that the two Supreme Court decisions were distinguishable simply because they dealt with programs affecting “law abiding citizens,” while the DNA law addresses “probationers and felons.”

He also rejected the government’s contention that extracting blood was no different from requiring convicts to be fingerprinted. Reinhardt said that equating fingerprinting to extracting blood “obscures the constitutional difference between invasive procedures of the body that necessitate penetrating the skin, and an examination of or recoding of physical attributes that are generally exposed to public view.”

O’Scannlain countered that “special needs” was not the true issue. Rather, he said that the reasonableness of the testing program had to be judged on the totality of circumstances, and it passed constitutional muster on those grounds.

The current case arose in Los Angeles when Thomas Kincade, released with supervision after serving a sentence for armed robbery, refused a probation officer’s order last year that he provide blood under a federal law enacted in 2000.

The law requires both federal prisoners and parolees to provide blood for a databank whose purpose is to aid in solving past and future crimes.

U.S. District Judge Dickran Tevrizian, in Los Angeles, rejected Kincade’s contention that forcing him to have his blood extracted violated the 4th Amendment. Tevrizian convicted Kincade of a misdemeanor and sentenced him to four months in prison for refusing to give the blood, but stayed his decision pending the appeal.

Federal Public Defender Monica Knox, who represents Kincade, said the 9th Circuit ruling is “exactly the right analysis and the right conclusion.” She acknowledged that the ruling dealt only with people convicted of federal crimes that are on supervised release.

However, she said that if the ruling stands, it could have much broader ramifications because it could be used to challenge compulsory drawing of blood in federal prisons.

Indeed, in a footnote in his majority opinion, Reinhardt wrote that “even a prisoner, who has no legitimate expectation of privacy in his cell ... retains an expectation of privacy in his body unless there is reasonable cause to violate his bodily integrity and a legitimate penological interest in doing so.”

Thom Mrozek, a spokesman for the U.S. attorney’s office in Los Angeles, said the office was studying the decision and would have no immediate comment.

Loyola University law professor Laurie Levenson said she thought the case ultimately would go to the highest court in the land. “The Supreme Court has to clarify as to what rights parolees and probationers have under the 4th Amendment.”

So far, 290 parolees in Southern California have had blood drawn under the federal DNA law, according to federal probation officials in Los Angeles. A spokesman said most of the 5,800 parolees in this area had blood drawn while in prison.