As most readers of this blog are aware, S.L. 2010-94 creates a new statute, G.S. 15A-266.3A, which provides for the collection of a DNA sample from anyone arrested for a laundry list of offenses, most but not all of which are felonies, and most but not all of which are violent crimes. Under some circumstances, such as if the defendant is acquitted or charges are dismissed, the DNA sample and the record thereof must be destroyed.
I’ve posted previously — here and here — about this issue. The Ninth Circuit recently decided an important case about a somewhat similar federal provision, and I thought I’d mention it for folks who are interested.
The case is United States v. Pool, and the short version of the facts is as follows. The defendant, who had no prior record, was arrested and charged with possessing child pornography. A magistrate judge found probable cause to support the charges and released the defendant on an unsecured bond, subject to various conditions, including that he provide a DNA sample. The defendant challenged the DNA condition.
A bit of legal background about the federal DNA scheme: the collection of DNA samples upon pretrial release is required by 18 U.S.C. § 3142(b), for the class of cases prescribed by the Attorney General in regulations promulgated under 42 U.S.C. § 14135a. The regulations now provide that “[a]ny agency of the United States that arrests or detains individuals or supervises individuals facing charges shall collect DNA samples from individuals who are arrested.” 28 C.F.R. 28.12(b). (At least, I think that’s how it works. As you can tell, it’s a bit of a complicated trail to follow.) So the law appears to provide for the collection of DNA upon arrest from all federal defendants, but in this particular case, it appears that no DNA had been taken prior to the defendant’s release.
Anyhow, the federal magistrate judge upheld the DNA condition, as did the district court judge. The Ninth Circuit did, too. Essentially, it found (1) that the collection of DNA is a Fourth Amendment search, (2) that a “totality of the circumstances” analysis is appropriate — rather than the automatic imposition of a warrant requirement — given the restrictions on liberty that are associated with being a criminal defendant, (3) that the DNA condition was not terribly intrusive, because the 13 markers analyzed as part of the process are not associated with any known medical or physical characteristics, and (4) that the government has a strong interest in the collection of DNA, both to identify the defendant and to ensure that the defendant, who was about to be released, had not committed other crimes.
By its terms, the court’s holding extends only to cases in which “a court has determined that there is probable cause to believe that the defendant committed a felony.” So it doesn’t address the propriety of DNA collection before a probable cause finding, and one of the two judges in the majority wrote a concurrence emphasizing that the probable cause finding is “highly significant” and that the collection of DNA from “mere arrestees” was not before the court. And one judge dissented altogether, arguing that “[n]o circuit has ever before approved such a warrantless search or seizure before an individual has been convicted of any crime.”
Obviously, a case from the Ninth Circuit doesn’t bind our courts, and in any event the issue before the Ninth Circuit was slightly different than the issue that may be posed by G.S. 15A-266.3A. Still, the Pool opinions are detailed and thoughtful, collect a significant amount of relevant authority, and are a worthwhile read for folks who are interested in, or are preparing to litigate under, our new statute.