Metropolitan News-Enterprise


Wednesday, June 24, 2009


Page 1


Court Rules Forcible Taking of DNA Unconstitutional


By Sherri M. Okamoto, Staff Writer


Shackling a pre-trial detainee, chaining him to a bench and forcibly opening his jaw to extract a DNA sample without a warrant, court order, reasonable suspicion or concern about facility security was a violation of the detainee’s clearly established Fourth Amendment rights, the Ninth U.S. Circuit Court of Appeals ruled yesterday.

A divided panel revived Kenneth Friedman’s civil rights suit against the Clark County prosecutor who ordered the buccal swab and the Las Vegas police detective who obtained it, reversing a grant of summary judgment based on qualified immunity by U.S. District Court Judge James C. Mahan of the District of Nevada.

Friedman pled guilty to sexual intercourse without consent in the District Court of the Fourth Judicial District of the State of Montana in 1980. He was released from Montana’s supervision in 2001, and he moved to Las Vegas.

He was subsequently arrested and charged with indecent exposure and gross and lewd conduct. While a pre-trial detainee at the Clark County Jail, he said Las Vegas Metropolitan Police Detective Dolphus Boucher asked him to provide a DNA sample.

Although Boucher did not have a warrant or a court order authorizing him to take the sample, and Friedman was not under any suspicion of a crime for which a DNA sample might be justified, the detective allegedly told Friedman that Clark County Deputy District Attorney Elissa Luzaich had authorized him to obtain a sample by force if necessary.

Luzaich later represented to a Nevada Justice Court that she had ordered Boucher to obtain Friedman’s DNA so that it could be entered in a data bank for use in the investigation of cold cases.

But Friedman was not a suspect in any of those cases and his DNA—which he claimed Boucher forcibly obtained by prying his mouth open and swabbing his cheek while he was seated on a bench in shackles and chained to a metal bar on the bench—apparently was never used in the resolution of any cold case. 

Friedman filed suit against Boucher and Luzaich pursuant to 42 U.S.C. § 1983, alleging that they had  violated his Fourth Amendment right to be free from unreasonable searches by forcibly taking his DNA.

Both Boucher and Luzaich moved to dismiss the complaint, arguing that they were entitled to qualified immunity, and the district judge agreed.

Writing for the appellate court, however, visiting Senior Judge Jane R. Roth of the Third Circuit explained that invasions of the body are searches entitled to the protections of the Fourth Amendment, so the swabbing of Friedman’s mouth was unquestionably a warrantless search.

The extraction of Friedman’s DNA fell outside the “special needs” exception to the warrant requirement, Roth said, because the exception is limited to “important non-law enforcement purposes” and the only asserted interest in taking Friedman’s DNA was to use the data in solving cases.

Roth also rejected the argument that Boucher and Luzaich were permitted to take the buccal swab by Montana Code Annotated Section 44-6-103, as a sister state’s laws cannot apply extraterritorially.

Even if the Montana law could constitutionally apply in Nevada, Roth explained,  the plain language of the Montana statute did not authorize any law enforcement official, either within or outside the state, to extract a DNA sample by force and was inapplicable to Friedman as he was no longer under Montana’s supervision.

The Nevada officials also failed to meet the requirements of the Montana law, which specifies that DNA samples must be provided to a person or entity designated by the county sheriff, and only authorizes the collection of DNA for placement in the Montana Department of Justice DNA identification index, Roth added.

In the alternative, Boucher and Luzaich contended that the extraction of Friedman’s DNA was a reasonable search given a pre-trial detainee’s limited privacy rights, but Roth emphasized that pre-trial detainees retain greater privacy interests than do persons who are incarcerated pursuant to a valid conviction.

Absent any controlling precedent at the time of the search providing that law enforcement officers could conduct suspicionless searches on pretrial detainees for reasons other than prison security, Roth, joined by Judge Sidney R. Thomas, concluded that the extraction of Friedman’s DNA was unconstitutional.

As the rule that a search violates the Fourth Amendment if it is not supported by either probable cause and a warrant or a recognized exception to the warrant requirement has long been clearly established, Roth went on to say, no detective or prosecutor could have thought that they could forcibly take a DNA sample from Friedman without violating his Fourth Amendment rights.

But Judge Consuelo M. Callahan, dissenting, argued that the swab was a minimally invasive and reasonable search of an incarcerated repeat sex offender.

“Fourth Amendment rights for inmates—whether they are convicted or pretrial detainees—fall on the lowest end of the expectation of privacy spectrum,” she opined.

Once Friedman was lawfully arrested based upon probable cause, “his identification becomes a matter of legitimate state interest, and he cannot claim privacy in it,” Callahan said, adding that the state has “a significant interest” in monitoring sex offenders and solving crimes.

She concluded that repeat sex offenders do not have a Fourth Amendment right to prevent state authorities from obtaining DNA samples and disagreed with the majority’s suggestion that gathering DNA for use in a databank was not in itself a sufficient reason to allow authorities to extract DNA from individuals legally in state custody.

Noting her own disagreement with the majority as to the reasonableness of the search at issue, Callahan urged that Friedman’s privacy rights were not clearly established and that Boucher and Luzaich should therefore have been entitled to qualified immunity.

The case is Friedman v. Boucher, 05-15675.


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