3rd. Circuit OKs DNA Collection on Arrest

Referring to DNA profiling samples are "fingerprints for the 21st century," a sharply divided 3^rd Circuit Court of Appeals ruled that the government has the right to routinely collect DNA samples from anyone who is arrested for inclusion in a national database., yesterday.

The case had been a challenge to the constitutionality of federal statute enacted as part of the DNA Analysis Backlog Elimination Act of 2000, amended in 2006 to permit the collection of DNA samples from individuals who are arrested, facing charges, or convicted [ 42 U.S.C. § 14135a(a)(1)(A) and implementing regulation @ 28 CFR §28.12 ]

An article in The Legal Intelligencer this morning reported that the ruling overturns a November 2009 decision by U.S. District Judge David S. Cercone of the Western District of Pennsylvania that held prosecutors cannot, without a warrant, routinely collect DNA samples from arrestees for inclusion in a national database. Other courts – along with the 3^rd. Circuit -- have already held that those convicted of certain crimes may be subjected to DNA sampling, but 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." ( District Court holding )

Writing for the 3^rd. Circuit this time around, though, Circuit Court Judge Julio Fuentes’ majority opinion said “"DNA profiling is simply a more precise method of ascertaining identity and is thus akin to fingerprinting, which has long been accepted as part of routine booking procedures… Because they developed pursuant to the DNA Act function as 'genetic fingerprints' used only for identification purposes, arrestees and pretrial detainees have reduced privacy interests in the information derived from a DNA sample," ( 3^rd. Circuit’s holding )

Circuit Judge Marjorie O. Rendell, writing in dissent, complained that "collecting and analyzing DNA is much more intrusive than either fingerprinting or photographing, and believes the privacy rights of arrestees ‘are not so weak as to permit the government to intrude into their bodies and extract the highly sensitive information coded in their genes.’”