Parolee DNA Testing OKd

SAN FRANCISCO —  Federal parolees may be required to provide blood samples for a national DNA database used to solve crime, the U.S. 9th Circuit Court of Appeals ruled 6 to 5 Wednesday.

The decision, which overturned a three-judge panel’s ruling in October, brings the 9th Circuit in line with other appellate courts around the country that have examined the 4-year-old federal DNA law.

The law requires federal prisoners, parolees and probationers convicted of a variety of crimes, including murder, sexual abuse and burglary, to provide blood samples for a national DNA bank monitored by law enforcement.

“By contributing to the solution of past crimes, DNA profiling of qualified federal offenders helps bring closure to countless victims of crime who long have languished in the knowledge that perpetrators remain at large,” wrote Judge Diarmuid F. O’Scannlain for the San Francisco-based court.

Judge Stephen Reinhardt, who wrote the ruling that was overturned, complained in a dissent that the new decision puts all Americans at risk “of having our DNA samples permanently placed on file in federal cyberspace.”

“Even governments with benign intentions have proved unable to regulate or use wisely vast stores of information they collect regarding their citizens,” Reinhardt wrote.

He noted that Proposition 69, which will appear on the November ballot, would give California the right to take DNA samples from people who are arrested for felonies. If exonerated, they could go to a judge and obtain a court order to remove their DNA from a state database.

October’s ruling concluded that the federal DNA program violated a parolee’s right to privacy. Generally, law enforcement officers must have probable cause or some suspicion of criminal behavior before conducting a search, which includes taking a blood sample.

But Wednesday’s decision held that parolees have only limited rights of privacy and can be forced to give blood samples even if there is no specific reason to suspect they were involved in additional crimes.

“Parolees have demonstrated by their adjudicated criminal conduct a capacity and willingness to commit crimes serous enough to deprive them of liberty,” O’Scannlain wrote.

Taking a blood sample is only a “minimal intrusion” that is justified by the need to keep society safe, he said.

The DNA program “helps minimize the pain and suffering recidivist offenders sow in our communities,” he wrote.

Thomas Cameron Kincade, a decorated Navy seaman and convicted bank robber, challenged the federal law after his probation officer sought a blood sample from him.

Kincade was released from prison in August 2000. While on parole, urine tests determined he was using cocaine and he was eventually placed in a residential drug program.

In March 2002, Kincade’s probation officer asked him to submit a blood sample in compliance with the federal DNA law. He refused and challenged the constitutionality of the law. A trial judge ruled against him, and he appealed to the 9th Circuit.

Judge Alex Kozinski, who also dissented Wednesday, said Kincade’s 4th Amendment right to be free of unreasonable searches would be violated by the placement of his DNA in a databank that law enforcement would monitor long after Kincade completed parole.

“It is important to recognize that the 4th Amendment intrusion here is not primarily the taking of the blood, but seizure of the DNA fingerprint and its inclusion in a searchable database,” Kozinski wrote.

Judge Michael D. Hawkins, who also wrote a dissent, said the Bill of Rights restrains government power, including law enforcement efficiency.

“In a world unrestrained by our 4th Amendment, every citizen, convicted or not, might be forced to supply a DNA sample,” Hawkins said. “More crimes would undoubtedly be solved ... but that is not the world Mr. Madison and the First Congress created for us.”

Monica Knox, a deputy federal public defender who represented Kincade, said the ruling establishes the legal groundwork for the government to take DNA samples of the general population.

“What this court is doing is really a dangerous thing,” Knox said. “It just becomes a slippery slope. Where do you stop?”

But Thom Mrozek, a spokesman for the U.S. attorney’s office in Los Angeles, said the decision upholding the program “will help us solve more crimes and prosecute more criminals.”

Los Angeles County Deputy Dist. Atty. Lisa Kahn, the forensic science advisor to Dist. Atty. Steve Cooley, said the judges rightly chose common sense and science over fear.

“No genetic information such as physical characteristics or traits or propensity for disease is stored in the [DNA] databank,” Kahn said.

“As the judges said, there is no personal information in which the offender can claim a right of privacy once lawfully convicted, or indeed once lawfully arrested and booked into state custody.”

“Anybody that works in law enforcement is going to be pleased with the court’s decision,” said Det. Rick Jackson of the Los Angeles Police Department’s Cold Case Homicide unit.

“It enhances the tools we have to solve crimes, especially when you are dealing with murder or a sexual assault carried out by a predator that is a stranger to the victim,” Jackson said.

The LAPD unit, formed in November 2001 to review unsolved murders dating to 1960, has closed 30 investigations, in large part because of DNA evidence.