U.S. Appeals Court: OK to check DNA of those arrested

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A closely divided 3rd U.S. Circuit Court of Appeals has found that the collection of DNA samples from people arrested -- but not yet convicted -- of crimes is constitutional, in an opinion released today.

In a precedent-setting ruling, the appeals court rejected U.S. District Judge David S. Cercone's 2009 order finding that law enforcement could not collect DNA from Ruben Mitchell, who faces a federal charge of attempting to possess and distribute five kilograms or more of cocaine. Judge Cercone had found that requiring pre-trial detainees to submit DNA samples, which is done under the DNA Analysis Backlog Elimination Act of 2000, violates the 4th Amendment's search and seizure rules.

In an 8-6 ruling, the circuit judges found that people who are arrested have "a diminished expectation of privacy in their identities." Outweighing their privacy, they found, is the importance to law enforcement of correctly identifying people who are charged with crimes, determining their criminal history, potentially linking them to unsolved crimes and promptly ruling out involvement in a crime in cases in which the DNA does not match that found at the scene.

The majority opinion, by Judge Julio M. Fuentes, said that DNA matching "promptly clears thousands of potential suspects."

"In sum, under the totality of the circumstances, given arrestees' and pretrial detainees' diminished expectations of privacy in their identities and the Government's legitimate interests in the collection of DNA from these individuals, we conclude that such collection is reasonable and does not violate the Fourth Amendment," Judge Fuentes wrote.

Judge Marjorie O. Rendell wrote for six dissenting judges who found that the DNA Analysis Backlog Elimination Act of 2000 overreached.

"The privacy interests of arrestees, while diminished in certain, very circumscribed situations, are not so weak as to permit the Government to intrude into their bodies and extract the highly sensitive information coded in their genes," Judge Rendell wrote. "Moreover, the Government's asserted interest in this case -- the law enforcement objective of obtaining evidence to assist in the prosecution of past and future crimes -- presents precisely the potential for abuse the Fourth Amendment was designed to guard against."


Rich Lord: rlord@post-gazette.com or 412-263-1542.


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