Metropolitan News-Enterprise


Tuesday, January 6, 2004


Page 1


Ninth Circuit to Decide En Banc Whether Parolees Can Be Forced to Submit to DNA Testing


By a MetNews Staff Writer


The Ninth U.S. Circuit Court of Appeals will decide en banc whether the Fourth Amendment prohibits forced extraction of parolees’ blood for DNA testing absent individualized suspicion that the extraction will produce evidence of a crime, the court said yesterday.

In a brief order signed by the chief judge, the court announced that a majority of its active judges had voted to grant the expanded review in United States v. Kincade, 02-50380. A divided panel ruled Oct. 1 that parolees and probationers cannot be forced to give samples under the DNA Analysis Backlog Elimination Act of 2000.

The statute, which mandates collection of samples for the FBI’s national DNA index—known as CODIS—from all persons serving sentences for specified federal crimes, including those on probation and parole as well as those who are incarcerated.

Judge Stephen Reinhardt, author of the panel’s majority opinion, said that while parolees have a lesser expectation of privacy than persons not under criminal justice system supervision, they are entitled to freedom from seizure of their bodily fluids for law enforcement purposes in the absence of reasonable suspicion.

Judge Richard A. Paez concurred. Judge Diarmuid F. O’Scannlain dissented, saying a 1995 ruling upholding a similar testing program in Oregon is binding on the court and that Reinhardt was in error in saying that decision was overruled by subsequent Supreme Court authority.

The former inmate who challenged the order, Thomas Cameron Kincade, was sentenced to eight years in prison, followed by three years of supervised release, in 1994. He was freed on the basis of good conduct credits in 2000 and instructed by his parole officer to give the sample, but refused.

Refusing to give a sample is a misdemeanor, and Kincade was charged with violating the terms of his release by refusing a parole officer’s instruction and by violating a statute. At a hearing before U.S. District Judge Dickran Tevrizian of the Central District of California, he said he had served “the incarceration period” and felt that the law was unconstitutional.

The judge disagreed, and Kincade persisted in his refusal even after it was explained that the sample would be taken by force once he was in custody. Tevrizian sentenced him to four months’ imprisonment, followed by two more years of supervised release, but stayed the sentence pending appeal.

Reinhardt said the forced extraction of blood constitutes a search, rejecting the government’s position that the procedure for taking the sample is akin to taking fingerprints. The Constitution, Reinhardt said, distinguishes “between invasive procedures of the body that necessitate penetrating the skin, and an examination or recording of physical attributes that are generally exposed to public view.”

The judge also noted that police cannot, without probable cause, force an individual to give fingerprints in furtherance of a criminal investigation.

Reinhardt also rejected the government’s claim that samples may be taken from persons convicted of violent crimes under the “special needs” doctrine, which holds that suspicionless searches are permitted in limited circumstances that go “beyond the normal need for law enforcement.”

The Supreme Court, Reinhardt said, has only applied the doctrine to searches whose “immediate purpose” was other than to aid law enforcement. He cited decisions upholding drug testing of student athletes and workers in safety-sensitive positions, highway checkpoints established for the safety of motorists, routine border searches, and administrative searches of closely regulated businesses.

O’Scannlain, dissenting, cited Rise v. Oregon, 59 F.3d 1556 (9th Cir. 1995), which upheld compulsory taking of blood samples for DNA data bank purposes from persons convicted of murder or of certain sex crimes. The court held in that case that certain factors, including a reduced expectation of privacy on the part of persons who commit those crimes, and the public interest in preventing those persons from repeating their crimes and in prosecuting serious crimes, supported the law.

In a footnote, Reinhardt maintained that Rise was no longer good law because of two later high court decisions, one holding that police could not institute a highway checkpoint for random drug searches of automobiles and another holding that a state hospital could not compel pregnant patients to submit to drug testing under conditions in which positive results were turned over to law enforcement.

But O’Scannlain distinguished those cases, saying the Rise court relied on the traditional “totality of the circumstances” approach, not the special needs doctrine, to reach its holding and that the 1995 decision remains binding because his colleagues “cannot legitimately contend” that the Supreme Court has overruled it.

Attorneys on appeal were Deputy Federal Public Defenders Monica Knox and Michael Tanaka for the defendant and Assistant U.S. Attorney John B. Owens for the prosecution.

Prosecutors said the panel’s original ruling threatened hundreds of criminal cases, in addition to state laws demanding DNA samples. Blood samples taken from federal prisoners and those on supervised release have been used to convict hundreds of people, on crimes such as murder and rape.

CODIS holds roughly 1.4 million genetic profiles.


Copyright 2004, Metropolitan News Company