DNA collection challenges privacy
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When a federal judge in Pittsburgh ruled that prosecutors cannot, without a warrant, routinely collect DNA samples from arrestees for inclusion in a national database, he sparked an appeal now set to be argued before all 14 judges on the 3rd U.S. Circuit Court of Appeals.
At issue in United States v. Mitchell is one of the most important privacy rights issues facing the courts: whether routine DNA sampling should be considered no different from fingerprinting or photographing, or whether the government ought to be required to get a warrant, or wait for a conviction, before taking a genetic sample.
The Justice Department's appeal in Mitchell was initially argued before a three-judge panel in April. But the court has taken the rare step of slating the case for en banc re-argument without releasing a decision from the three judges.
In November 2009, U.S. District Judge David S. Cercone of the Western District of Pennsylvania ruled against the government, and held that DNA sampling of arrestees violates the Fourth Amendment.
Defendant Ruben Mitchell, indicted in March 2009, had been charged with possession with intent to distribute cocaine. Mr. Mitchell, of California, lost track of more than 41 pounds of cocaine, which was stored in his luggage but lost on a Southwest Airlines flight to Pittsburgh. At his first court appearance, Mr. Mitchell objected to the collection of his DNA pre-conviction, and U.S. Magistrate Judge Lisa Pupo Lenihan issued an order blocking the collection until a decision by the district court.
In the federal case, prosecutors argued that Congress authorized such DNA sampling of arrestees, and that it serves the compelling government interest of identifying a suspect more accurately than fingerprints or photographs can.
But Judge Cercone reasoned that DNA testing goes too far because a genetic sample can reveal much more than a suspect's identity. Although arrestees have a "diminished expectation of privacy," Judge Cercone concluded that the practice of routinely obtaining genetic samples from all arrestees must be struck down as unconstitutional.
Courts, including the 3rd Circuit, have already held that those convicted of certain crimes may be subjected to DNA sampling, but Judge 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, he concluded that Mr. 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.
First Published November 1, 2010 12:00 am
