The Constitutional Legality of Mandatory DNA Testing

            In 2005, Illinois resident Jerry Hobbs was charged with the murder of his 8-year-old daughter, Laura Hobbs, and her best friend, 9-year-old Krystal Tobias. Hobbs’ story began when Laura did not come home from playing with her friend when it began to get dark. In what would become the gruesome beginning to a five-year-long nightmare for Jerry, he set out to look for the girls, and soon faced the horror of finding their bodies in a wooded area near the family’s home. After leading police to the young girls, Hobbs was immediately their prime suspect and was charged with both the young girls’ murder. His implication in the crime was made worse because Hobbs had recently been released from a Texas jail, having served time for a parole violation after being arrested for a violent drunken public display. He admitted that he had a drinking problem back then but had gotten help and stopped his alcohol abuse before being arrested on the murder charges in Illinois. Issues surrounding the details of Hobbs’ interrogation, which included sleep deprivation and coercion, were not presented at the trial. Police officers and investigators had prompted Hobbs to sign a confession for his daughter’s and her friend’s murder that was placed in front of him during this extreme questioning session.^[1]  The double murder charges were even upheld when in 2008, forensic investigators recovered DNA evidence from an article of clothing belonging to one of the girls that did not match Jerry Hobbs. This evidence was dismissed by investigators because during the initial investigation, neighbors from the area had explained to police officials that people often had sex in the woods where the girls were found. The authorities speculated that the girls could have come in contact with the DNA evidence previously left in that area and that didn't necessarily identify the man who committed the murders. In June of 2010, more than five years after Jerry Hobbs had been imprisoned and awaiting trial, county authorities learned of a match to that DNA sample from the clothing. That finding prompted an investigation that would eventually exonerate Hobbs. The DNA belonged to Jorge Torrez, a former resident of Zion, Illinois, and the new suspect in the murders of the two little girls. He had been arrested on unrelated rape, abduction, and robbery charges in Virginia, and authorities there collected a DNA sample from Torrez as they do with all incoming prisoners suspected of felony crimes such as rape and murder. His DNA matched that of the sample that had been found on the girls’ clothes years prior. Jerry Hobbs, still grieving over the death of his daughter, had been facing the possibility of the death penalty if he'd been convicted. ^[2]  The legislation that helped Hobbs and his daughter find justice is called the DNA Analysis Backlog Elimination Act of 2000. This law mandates the collection of DNA samples from convicted felons in certain crimes. It allowed the real killer of Krystal and Laura to be caught and spared Jerry Hobbs’ life. All fifty states also currently have statutes requiring the collection of DNA samples from certain criminals that also dictate the terms of storing the information in the DNA databases holding these samples. ^[3]  Many debate the constitutionality of the collection laws. On one side, civil rights advocates claim that the mandatory collection of a person’s DNA violates the Fourth Amendment right to privacy, while others argue that it offers the best chance to exonerate innocent people and arrest the actual criminals responsible for committing the most heinous crimes. This paper will show the process of DNA collection, outline the history the courts’ decisions to uphold the legality of these laws, and discuss the impact of DNA collection on Fourth Amendment rights.

Collecting DNA samples from people who have been convicted of felony crimes to aid in forensic investigations has been upheld by the courts with the reasoning that those failing under those statuses have less expectation to individual privacy due to the nature of their actions and their entry into the criminal justice system. Police work and government interests trump individual privacy in accordance with reasonable search and seizure measures, as well as the special needs doctrine as afforded by the Fourth Amendment to the United States Constitution. The federal government and the states have laws in place that mandate that certain convicted persons provide samples of their DNA to the government to be included in the national database. Some states, namely Louisiana, Mississippi, Kentucky, Texas, and California allow samples to be collected from persons arrested for some specified crimes such as rape and murder. For the case of sex offenders, the stipulations for collection of DNA is spelled out under U.S. Code 18, section 3561(d) which states that an offender must submit a sample under the conditions of the DNA Analysis Backlog Elimination Act of 2000.^[4]  The Constitutionality of the collection of DNA and its entry into national databases has been debated back and forth in the courts. Generally, the issue has been determined to be a reasonable search and seizure under the special needs exception to the Fourth Amendment's warrant requirement because the desire to build a DNA database goes beyond the ordinary law enforcement needs. The expectation of privacy for convicts and suspects being held for certain crimes is less than for members of the general population.The statutory provisions of the DNA Analysis Backlog Elimination Act were updated in the Sentencing Guidelines in November 2002 and make the collection of DNA samples a mandatory condition of supervised release.^[5]  However, the legality of the Act is still contested. Two recent cases have reached different conclusions about whether the collection of samples under the DNA Act actually violates the Fourth Amendment. The courts in both United States v. Miles and United States v. Reynard agreed that the DNA sample extractions mandated by the Act are warrantless searches without probable cause, and would only be constitutional if they fell under the "special needs" exception to the warrant requirement. The exception asserts that the government is allowed conduct a warrantless search without probable cause when special needs make the warrant and probable-cause requirement unfeasible.  Both courts further agreed that the Court's decisions in City of Indianapolis v. Edmond and Ferguson v. City of Charleston should be the guidelines for a special needs inquiry.^[6]  Where the Courts disagreed was in the outcomes: the Miles decision struck down the DNA Act searches, while Reynard upheld them. The Miles and Reynard courts applied the special needs test in their analyses and the government argued that the primary purpose of the searches was to create a more accurate DNA database, which would aid law enforcement in solving past and future crimes and in so doing ensure a more accurate criminal justice system. The Miles court concluded that this justification was "indistinguishable from the government's basic interest in enforcing the law," since the evidence was being used to solve and prosecute crimes. The Reynard court, in contrast, found that "the creation of a more accurate criminal justice system" was a reason that went beyond "the normal need for law enforcement."^[7]  The inconsistency in the Miles and Reynard courts’ decisions over the constitutionality of the DNA Act searches amount to a semantic disagreement over the meaning of ’law enforcement purposes.’ While the special needs conditions of the DNA Analysis Backlog Elimination Act continue to be debated in the courts, the holding remains that the Act is in and of itself constitutional. The constitutionality of the DNA testing has also been upheld more recently by the 9th Circuit Court in United States v. Kincade. Here, the defendant had challenged the DNA Analysis Backlog Elimination Act of 2000, which required him to provide a sample of his blood for DNA profiling as a condition of his parole. The court sustained the lower court’s decision to detain him in prison for his refusal to submit to the test. Because persons placed on conditional releases such as parole have a reduced expectation of privacy, the minimally invasive blood sample and the “the overwhelming societal interests so clearly furthered by the collection of DNA information from convicted offenders,” the court concluded that the law is valid and reasonable under the given circumstances.^[8]  State courts have also upheld the constitutionality of DNA collection, such as in the case of Anderson v. Commonwealth of Virginia. Angel Anderson was found guilty of rape, robbery, and sodomy when a DNA sample that was collected from him during an unrelated felony arrest matched evidence from an unsolved case. The Commonwealth of Virginia ruled there was no violation of Anderson’s Fourth Amendment rights because the DNA sample was given during the routine booking process and was similar to standard fingerprinting procedures.^[9]  The Federal Courts have also favored DNA collection from felony arrests only when the circumstances of the case meet the conditions of the DNA Act collection. The Court in United States v. Kimler held that the condition of supervised release requiring the defendant to cooperate in the collection of a sample of his DNA is not reasonably related to his offenses because “his offenses are not qualifying offenses under the DNA Analysis Backlog Elimination Act of 2000 (DNA Act), 42 U.S.C. 14135a, because they did not involve the sexual abuse or exploitation of children” and it is in this case that DNA Act violates the Fourth Amendment's prohibition against unreasonable searches and seizures.^[10]  In United States v. Pool, the court ruled in favor of upholding the Bail Reform Act, which requires DNA to be provided for pretrial release, and the DNA Fingerprinting Act, which requires DNA testing of all arrestees. The constitutionality of these laws was affirmed such that as probable cause was found to arrest someone, an arrestee’s “liberty could be greatly restricted and even denied.” Since the felony probable cause requirement was fulfilled, there was no Fourth Amendment violation. What that means is that if there is enough evidence to arrest someone due to law enforcement and government interests, their expected right to privacy is waived. The court also declared that “the minimal invasiveness of the DNA testing” does not violate the Fourth Amendment right to privacy.^[11]

While the courts have generally upheld the constitutionality of DNA collection, many individuals argue against it. There are two sides to the debate, both with legislative support to maintain their case. On the side in support of DNA testing, the case has been made for the protection it offers those with inadequate counsel and/or limited resources. If a defendant does not get proper counsel in their first trial, obtaining DNA testing is usually not possible. For post conviction appeals, many states do not even allow for the appointment of legal counsel for inmates seeking case review.^[12]  This can be problematic if the accused is denied the opportunity to exonerate himself at his first trial and cannot afford to appeal a conviction. If DNA collection were mandatory, there would be question whether an innocent person could be cleared of a crime simply because he did not have the means or the aid of adequate counsel. Many inmates currently sitting on death row do not have to means to pay for private DNA testing, but several states are improving access to DNA testing for accused and for currant inmates. While privacy concerns are certainly legitimate, many advocates feel that these fears are outweighed by the need to prevent the risk of convicting and possibly executing the innocent, a view increasingly shared by federal and state governments. Many recent federal laws provide for mandatory DNA testing of all federal inmates, including those on parole.^[13]  Once the DNA samples are collected and entered in the Combined DNA Index System ("CODIS") federal database, cases can be cross-referenced with known samples which can reduce the time and resources used in a typical criminal investigation.

Although the benefits of freeing the innocent, reducing investigation costs, and the prevention of wasting valuable time in the investigation process are numerous, there are still some concerns with mandatory DNA testing. Privacy has always been a closely guarded right of the American people, and many feel that collecting something as personal as our DNA violates that right even for those convicted or accused of serious crimes. It is important to realize that the type of DNA sample that are collected by criminal justice professionals are not the same as those used for medical purposes. Forensic DNA testing is not similar to predictive genetic testing. The crime labs where DNA samples are processed do have the same kinds of personnel, training, or other lab resources to parse DNA samples for predictive health tests as such that are used by medical professionals. Even if forensic labs were able to conduct detailed testing, federal and state laws are in place to prohibit and penalize any misuse of genetic data.^[14]  DNA profiles stored in CODIS include little more than the DNA sequence and the referring police agency of a collection.

Those that argue against DNA collection have a variety of privacy related fears. The Fourth Amendment provides the right of an individual “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Two questions that arise in every Fourth Amendment challenge brought before the courts are: 1) does the challenged action constitute a search or seizure by federal or local government and thus invoke the Fourth Amendment right and 2) if so, is the search or seizure reasonable? The courts have uniformly held that any compulsory DNA collection and analysis constitutes a search and thereby triggers the guarantee of the protection of a person’s Fourth Amendment rights. In the related case of DNA collection upon an arrest, the answer remains ambiguous regarding whether a special need, apart from basic law enforcement interests, must exist before a court may apply the reasonableness standard.^[15]  While there is a gray area regarding whether the diminished expectations of privacy that come with a conviction also apply during an arrest, the courts generally approve of this interpretation due to the expectation that there is sufficient evidence to support arresting someone for a certain crime.

Some opponents of the DNA Act of 2000 have more concerns with the maintenance of databases by the government that store the very private and personal DNA information of felons and arrestees. The security of the databases that store the DNA information that is collected presents a whole other problem for opponents of mandatory DNA collection. Civil libertarians are troubled about the effectiveness of security protocols used to ensure that there is no unauthorized or unwanted access to the government’s DNA databases.^[16]  Although the government has taken maximum precautions to prevent this information from unauthorized disclosure, breaches to other government databases in the past show that there is a valid concern for data integrity. Fears also surround the reliability of complex DNA evidence and misuse of the DNA information that is collected for genetic discrimination.  Others who contest DNA databases question whether the Constitution allows the government to even establish DNA databases at all.^[17]

The Supreme Court has even gone back and forth about the constitutionality of forcing those convicted of crimes to provide a DNA sample to be recorded. The court in the case of United States v. Miles court dismissed the notion that DNA databases provide the advantage that an accurate DNA database has to exonerate the innocent, noting that "[i]f a convicted felon wants to be exonerated of a crime for which he is wrongly accused, he will presumably submit voluntarily to a DNA test."^[18]  However, what the Court failed to address in Miles was the possibility of a wrongfully accused person being eliminated as a suspect not by ruling that person out, but by incriminating someone else whose DNA had been collected and stored. Kravis uses an example where two or more individuals commit a crime, but only one leaves DNA at the scene. If one person’s DNA does not match that evidence, it does not eliminate that person as a suspect. But if that evidence has a match in the CODIS DNA database that incriminates another person who that first suspect has no relation or connection to, that person has “received an important collateral benefit from the suspicionless search regime necessary to implement the CODIS.”^[19]

While both sides to the debate over the constitutionality of DNA testing have valid arguments, the overwhelming benefits appears to fall on the side of freeing the innocent and wrongfully convicted victims of a system that does not see the importance of mandatory DNA testing. So both the mandatory collection of DNA and the maintenance of CODIS-type databases have detractors who are concerned about Fourth Amendment rights. But these actions are clearly law-enforcement related and serve just as much to arrest people who have committed crimes as to exonerate innocent persons. That benefit simply cannot be realized without mandating that each and every convicted felon and some arrestees submit mandatory DNA samples. If the government had to obtain a warrant every time they needed to conduct a DNA Act collection, the CODIS database would not be very effective or worse, it would simply fail. It would not be possible for federal, state, and local law enforcement to establish probable cause for the great majority of the searches. The warrantless searches mandated by the DNA Act of 2000 are a necessary prerequisite to the maintenance of a DNA database, which has an important value to innocent persons.^[20]  The Fourth Amendment right to individual privacy is not compromised when forensic DNA is collected, but rather the opportunity is provided to retain the right and the freedom of citizens to not be imprisoned for crimes they did not commit. The DNA Analysis Backlog Elimination Act of 2000 falls within the special needs exception of the Fourth Amendment and is therefore a legal and Constitutional law enforcement tool that benefits each component of the criminal justice system.

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^[1] See Kristyn Hartman, Mike Puccinelli, & Susan Carlson, Zion Father Released 5 Years after Murders, http://cbs2chicago.com/local/jerry.hobbs.zion.2.1841384.html.
^[2] Id.
^[3] See Jean Coleman Blackerby, Life after Death Row: Preventing Wrongful Capital Convictions and Restoring Innocence after Exoneration, 56 Vand. L. Rev. 1179 (2003).
^[4] See 18 USCS § 3561(d): “The court shall order, as an explicit condition of supervised release for a person required to register under the Sex Offender Registration and Notification Act, that the person comply with the requirements of that Act. The court shall order, as an explicit condition of supervised release, that the defendant cooperate in the collection of a DNA sample from the defendant, if the collection of such a sample is authorized pursuant to section 3 of the DNA Analysis Backlog Elimination Act of 2000 [42 USCS § 14135a].”
^[5] Id.
^[6] See City of Indianapolis v. Edmond, 531 U.S. 32, 148 L. Ed. 2d 333, 121 S. Ct. 447 (2000)
and Ferguson v. City of Charleston, 532 U.S. 67, 149 L. Ed. 2d 205, 121 S. Ct. 1281 (2001).
^[7] See Jonathan Kravis, A Better Interpretation of “Special Needs” Doctrine after Edmond and Ferguson, 112 Yale L. J. 2591 (2003).
^[8] United States v. Kincade, 379 F.3d 813, 821 n. 15 (9th Cir. 2004).
^[9] Anderson v. Commonwealth, 274 Va. 469, 650 S.E.2d 702 (2007).
^[10] United States v. Kimler, 335 F.3d 1132, 2003 U.S. App. LEXIS 13586 (10th Cir. Kan., 2003).
^[11] United States v. Pool, 645 F. Supp. 2d 903 (2009).
^[12] Id. Blackerby
^[13] Id.
^[14] See DNA Resource, Forensic DNA Testing; Fingerprints of the 21st Century, http://www.dnaresource.com/documents/reasonsforexpansion.pdf.
^[15] See Anna Henning, Compulsory DNA Collection: A Fourth Amendment Analysis, Congressional Research Service, November 26, 2008.
^[16] See Aaron Stevens, Arresting Crime: Expanding the Scope of DNA Databases in America, 79 Tex. L. Rev. 921 (2001).
^[17] Id.
^[18] United States v. Miles, 228 F. Supp. 2d 1130 (E.D. Cal. 2002).
^[19] Jonathan Kravis, A Better Interpretation of “Special Needs” Doctrine after Edmond and Ferguson, 112 Yale L. J. 2591 (2003).
^[20] Id.