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Samson v. California: the DNA sequels

This is another in a continuing series of reports on interesting new appeals to the Supreme Court. At this stage, the blog takes no position on whether the Court is likely to review those cases. These reports appear when the blog obtains an electronic copy of the filings.

In a matter of days, the Supreme Court is expected to clarify the rights of individuals who are on parole or probation, or under supervised release, when they or their property is searched without a warrant. That is the issue in Samson v. California, argued in February and awaiting decision. One question that will arise after the ruling comes out is its impact on the spreading practice of taking DNA samples from individuals who remain under official scrutiny for their crimes. Does it violate the Fourth Amendment to require them to provide a DNA sample, when there is no suspicion they have done anything else wrong, and there is no warrant authorizing the demand? And does it violate that Amendment to retain the same indefinitely?

Because DNA testing is now widely regarded as a principle method of crime control and detection, Congress is providing $25 million a year in federal grant money to encourage states to carry out a program of DNA sampling of individuals convicted of any crime on a list determined by the state. The samples are sent to the FBI for analysis, and are then stored in a national databank — the Combined DNA Index System (sometimes referred to as “CODIS”) set up by the FBI under a 1994 law. For those who commit specified federal crimes, sampling is required for individuals in prison or on probation, parole, or supervised release. There is a similar requirement for parolees, probationers, and supervised individudals convicted of crimes in the District of Columbia.

The program was set up under the DNA Analysis Backlog Elimination Act of 2000. Congress passed the law with the goals of building up the FBI’s DNA database and increasing the capacity of state and local crime laboratories to analyze DNA samples.

State and local governments also have moved eagerly to adopt DNA sampling and testing, with mandatory sampling extending even to those convicted of minor crimes, and to individuals who have been arrested or have been detained even if not yet convicted. A District of Columbia public defender, Timothy P. O’Toole, has recently told the Supreme Court in a significant new test case: “Unchecked, there is no reason to believe that these search regimes will stop expanding or using the newest genetic technologies to mine information from DNA samples.”

Because forcible seizure of an individual’s blood, in order to obtain a DNA sample, is considered a search, mandatory sampling has been challenged across the country under the Fourth Amendment. For now, the only aspect of this issue on the Court’s docket is the scope of that Amendment’s protection, if any, for those on parole, probation or supervised release. There is no uniformity in how the lower courts have reacted to the challenges. As Public Defender O’Toole has put it, “Appellate courts throughout the country have struggled over which of this Court’ s Fourth Amendment precedents applies to a regime of suspicionless searches like the DNA Act, where supervisory officials serve as the ministerial agents of law enforcement in effectuating a classic scheme of general crime control.”

The Supreme Court has not yet acted on that issue, apparently awaiting its own decision in the Samson case. At least two cases on the issue are now on the Court’s docket. The Court examined the first, Sczubelek v. U.S. (docket 05-7955), at Conference in April, but has taken no action on it since. The case involves Paul Sczubelek, convicted of bank robbery and sentenced to 87 months in prison and three years of supervised release. The condition of his release did not require him to submit to a DNA sample. While he was under supervision, however, he was told he would have to submit to DNA collection. He refused, but a federal judge ordered him to comply. The Third Circuit Court upheld the order, finding that “under the totality of the circumstances, the taking of a DNA sample from an individual on supervised release is not an unreasonable search.” The Justice Department has opposed Supreme Court review of that ruling.

The other case at the Supreme Court, newly filed on May 31, is Johnson v. Quander, et al. (docket 05-11230). That is Public Defender O’Toole’s case. The blog has obtained a copy of the filings. The petition and the lower court opinion can be found here.

Lamar Johnson was convicted of two counts of unarmed robbery in the District of Columbia after he stole two cars. He was given a suspended sentence, and two years on probation. While he was on probation, local authorities, acting under the DNA Act, demanded a sample for inclusion in CODIS. They had no warrant and no suspicion of any other crime.

The D.C. Circuit Court, in a decision on March 17, rejected his Fourth Amendment challenge, ruling that collection and storage of the sample and retention of the sample in CODIS did not violate Johnson’s rights. The Circuit Court conceded that it is an open question, in the Supreme Court, whether suspicionless searches of probationers and parolees are valid when conducted for law enforcement purposes. “Every court of appeals that has considered the issue has concluded that the DNA Act is constitutional,” it noted. It went on to find the collection, storage and retention to be “reasonable,” on the theory that probationers have a lesser expectation of privacy and that a blood sample is not a significant invasion of privacy.

The Solicitor General has until June 30 to respond to the appeal.