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Another Circuit on DNA sampling

This is another in a continuing series of reports on the aftermath of Supreme Court decisions. In this case, the ruling comes a week after the Supreme Court’s decision in Samson v. Califorinia and one day after the Court refused to review the specific issue at stake in the new appeals court decision discussed in this post.

The Eighth Circuit Court has followed the other federal appeals courts in finding no Fourth Amendment vioilation in the required DNA sampling of individuals on probation, parole or supervised release following federal criminal convictions. The Circuit Court’s ruling in U.S. v. Kraklio, released Tuesday, can be found here

In the Samson decision on June 19, the Supreme Court ruled by a 6-3 vote that parolees are not protected by the Fourth Amendment against a warrantless search that was made a condition of their parole. That case, though, did not involve DNA sampling, but a physical search of the person. Now, the Eighth Circuit has become the first appeals court to decide a post-Samson case on the compelled sampling of the DNA of a person who has been released following a conviction. It did so in the case of Ray Johnny Kraklio, serving two years’ probation after pleading guilty to being a felon in possession of a firearm. He refused when ordered to submit a blood sample for DNA testing under the DNA Analysis Backlog Elimination Act of 2000.

The Eighth Circuit remarked: “Every federal circuit considering DNA indexing statutes has upheld the statutes as constitutional under the Fourth Amendment.” Among the cases it cited was a Third Circuit decision last year in U.S. v. Szcubelek; the Supreme Court denied review of that case (docket 05-7955) on Monday of this week.

There is a division among the Circuit Courts on the standard they apply: the majority of courts have used a reasonableness standard, a minority, a “special needs” approach.

(Thanks to Howard Bashman of How Appealing blog for the alert and the link to this new decision.)