A federal court has held that police can lawfully forcibly take DNA samples, including by drawing blood with a needle, from persons who have been arrested but not convicted of any crime. The court upheld a federal statute allowing the gathering of such samples from those arrested for a felony. The court rejected claims that taking such samples was overly intrusive or violates the Fourth Amendment. U.S.A. v Pool, #CR09-0015, (E.D. Cal.).
     Qualified immunity was improperly granted in a lawsuit over the forcible taking of a DNA sample from a pretrial detainee merely because a prosecutor wanted to put the sample in a "cold case" data bank. At the time, the court stated, there was no warrant or court order authorizing the taking of the sample, nor was the detainee suspected of a crime for which a DNA sample might be justified. An officer allegedly forced his jaw open and forcefully took a swab from the inside of his mouth. If true, this action violated the detainee's clearly established Fourth Amendment rights. Friedman v. Boucher, No. 05-15675, 2009 U.S. App. Lexis 13440 (9th Cir.).
     The U.S. Supreme Court, in a federal civil rights lawsuit brought by a man convicted of sexual assault and other crimes, ruled that the plaintiff had no constitutional right to post-conviction access to the state's evidence for DNA testing for the purpose of attempting to prove his innocence. The Court also reasoned that it was a legislative task to develop procedures and rules for obtaining access to such evidence for DNA testing. District Attorney's Office for the Third Judicial Circuit v. Osborne, #08–6, 129 S. Ct. 2308 (2009).
     A federal prisoner was not relieved, on the basis of his religious freedom rights, of his obligation to comply with a valid and generally applicable neutral law, the DNA Analysis Backlog Elimination Act of 2000 (DNA Act), 42 U.S.C.S. §§ 14135-14135e. He failed to show that the law required or prohibited conduct in violation of his religion or impeded his religious observance. He also failed to show that the government did not have a legitimate interest in collecting a DNA sample from him because he was a first-time offender and had been convicted of a non-violent crime. The court also rejected due process/equal protection, self-incrimination, and Fourth Amendment challenges to the statute. Kaemmerling v. Lappin, No. 07-5065, 2008 U.S. App. Lexis 26507 (D.C.Cir.).
    Prisoner failed to exhaust available administrative remedies as required by 42 U.S.C. Sec 1997e of the Prison Litigation Reform Act before filing his federal civil rights lawsuit claiming that his Eighth and Fourteenth Amendment rights were violated by taking DNA samples from him involuntarily after he was identified as a sex offender, allegedly on the basis of false information. The prisoner failed to follow the established grievance procedure as to his claims against a correctional officer. The defendants were entitled to qualified immunity on the prisoner's claim concerning incorrect information in his file stating that he had been convicted of statutory rape, since the parameters of any due process right to dispute and correct such information was not clearly established at the time at issue. Walker v. James, No. 07-1327, 2008 U.S. App. Lexis 22403 (Unpub. 3rd Cir.).
     Ohio statute requiring a prisoner convicted of felonious assault to submit a DNA specimen for entry into state and national DNA index systems did not violate the prisoner's Fourth Amendment privacy right, and did not violate his Fifth Amendment privilege against self-incrimination, since DNA samples are not "testimonial" evidence, but rather "physical" evidence. Wilson v. Collins, No. 07-3428, 2008 U.S. App. Lexis 3730 (6th Cir.).
     Further proceedings were ordered on a Maryland prisoner's federal civil rights lawsuit complaining that a state trooper and a captain involuntarily took a DNA sample from him pursuant to a Maryland statute. The Maryland statute was different from a Virginia statute relied on by the trial court rejecting the prisoner's claims, since the opinions upholding the Virginia statute did not discuss the use of force to obtain a sample, but concerned punishments provided for failure to provide a sample. On remand, the court was instructed to examine the question of what kind of force the defendants would have used to obtain the DNA sample if the prisoner had failed to provide one after they threatened the use of force. Rendelman v. Scott, No. 07-7108, 2008 U.S. App. Lexis 1229 (4th Cir.).
     Requiring a convicted felon on supervised release to report for DNA testing or else suffer a possible revocation of his release did not violate the Fourth Amendment. The federal government's "significant interests" in preventing recidivism, solving past crimes, and identifying supervised releasees outweighed any diminished privacy interest held by a convicted felon serving a term of supervised release. Federal appeals court affirms trial court decision upholding the constitutionality of the 2004 amendments to the DNA Analysis Backlog Elimination Act of 2000, Pub. L. No. 108-405, and 28 C.F.R. Sec. 28.2, regulations identifying federal offenses qualifying for DNA sample collection under the Act. U.S. v. Kriesel, No. 06-30110, 2007 U.S. App. Lexis 27492 (9th Cir.).
     A requirement that prisoner provide a blood sample as a condition of supervised release for inclusion in DNA databases did not violate his Fourth Amendment or other constitutional rights. U.S. v. Lujan, No. 02-30237, 2007 U.S. App. Lexis 23046 (9th Cir.),
      Requiring a prisoner on supervised release (probation) to provide a blood sample for DNA profiling purposes under the DNA Analysis Backlog Elimination Act of 2000, Pub. L. No. 016-546 (codified in scattered sections of 10 U.S.C., 18 U.S.C., and 42 U.S.C.) did not violate his Fourth Amendment rights. The federal appeals court rejected the trial court's analysis, using a "special needs" test, which had concluded that requiring the blood sample violated the Fourth Amendment, and instead upheld the requirement under a "totality of the circumstances" test. U.S. v. Weikert, No. 06-1861, 2007 U.S. App. Lexis 18845 (1st Cir.).
     Provisions of the DNA Analysis Backlog Elimination Act, 42 U.S.C.S. §14135, allowing required DNA testing of certain offenders convicted of non-violent felonies who were on probation, supervised release, or parole, did not violate the Fourth Amendment. The fact that the statute does not require individualized suspicion that the offenders have been involved in additional crimes did not alter the result. The interests of the government in obtaining the DNA samples from the offenders, including fighting recidivism, solving crimes, and providing accurate identifications of the offenders, outweighed any intrusion on their privacy rights. The plaintiff offenders' argument that their DNA samples might be misused did not alter the result when they did not point to any specific alleged misuse. Banks v. US, No. 06-5068, 2007 U.S. App. Lexis 14341 (10th Cir.).
     Application of a federal statute to probationers convicted of "non-violent" but felonious crimes which required them to supply DNA for analysis and storage in a federal database did not violate their rights under the Fourth Amendment. The testing served a special need, and the intrusion into their privacy was minimal, given all the other identifying information that the government already had about them as a result of their status as convicted felons. U.S. v. Amerson, No. 05-1423, 2007 U.S. App. Lexis 8610 (2nd Cir.).
     Prisoner serving a life sentence for murder was entitled to pursue a federal civil rights claim concerning an opportunity to test DNA evidence in the state's possession concerning the crime. This claim, on its own, did not necessarily imply the invalidity of his underlying conviction, since the DNA testing could be inconclusive or even inculpatory, so that his lawsuit was not barred by the principles in Heck v. Humphrey, 512 U.S. 477 (1994). Additionally, if the DNA test results were exculpatory, he would still be required to challenge his conviction in a separate proceeding in state court. Breest v. New Hampshire Attorney General, Civil No. 06-cv-361, 2007 U.S. Dist. Lexis 317 (D.N.H.). [N/R]
     After a Pennsylvania prisoner was convicted of a violent felony, a sex offense, there was a compelling interest in collecting a DNA sample from him because it is a reliable means of identification. Walker v. James, No. 03-3541, 2007 U.S. Dist. Lexis 5064 (E.D. Pa. 2007). [N/R]
     Federal probationer who was charged with a violation of federal law in relation to the use of explosives was entitled to a modification of the conditions of his probation to prevent the U.S. Probation Department from obtaining a DNA sample from him under the DNA Analysis Backlog Elimination Act of 2000, 42 U.S.C. Secs. 14135-14135e. While the probationer had a lessened expectation of privacy when it came to searches of his person and home, the obtaining of a DNA sample was a "highly intrusive" search, so that the DNA Act was unconstitutional as applied to him. U.S. v. Stewart, No. 05-10062, 2007 U.S. Dist. Lexis 745 (D. Mass.). [N/R]
     Federal appeals court rules that DNA Analysis Backlog Elimination Act of 2000, 42 U.S.C. Secs. 14135-14135e is not a violation of the Fourth Amendment, an impermissible retroactive enhancement of an offender's punishment, or a violation of the right against self-incrimination protected by the Fifth Amendment. Accordingly, the court upheld a revocation of a defendant's supervised release after he refused to provide a blood sample for DNA analysis, as required by the statute. U.S. v. Reynard, No. 02-50476, 2007 U.S. App. Lexis 665 (9th Cir.). [N/R]
     Federal appeals court rejects argument that federal statute, the DNA Act, 42 U.S.C. §§ 14135-14135e, requiring a convicted offender to submit to DNA collection while serving a sentence of supervised release violated his Fourth, Fifth, Eighth, Ninth, Tenth, Thirteenth or Fourteenth Amendment rights. The law was rationally related to a legitimate governmental interest in fighting recidivism and compiling accurate identification records on criminals. Because the DNA samples were not sought as part of the investigation of particular crimes, it should be analyzed under a "special needs" framework which courts have developed and applied to such things as searches of probationer's homes and drug testing. U.S.A. v. Hook, No. 06-1362, 2006 U.S. App. Lexis 30526 (7th Cir.). [N/R]
    New York statute mandating that certain categories of convicted felons provide DNA samples for inclusion in a state database did not violate prohibitions on unreasonable search and seizure or improperly retroactively enhance the punishment of the felons' crimes. Grant v. Goord, No. 04-3809, 155 Fed. Appx. 551 (2nd Cir. 2005). [N/R]
     Texas statute providing for compulsory seizure of prison inmate's DNA for use in a database did not violate his right against compulsory self-incrimination under the state Constitution, and also was not a violation of the prohibition in the state Constitution of unreasonable searches and seizures. Johnson v. Davis, No. 14-04-00206-CV, 178 S.W.3d 230 (Tex. App. 14th Dist. Houson 2005). [N/R]
     Prisoner should be allowed to proceed with his federal civil rights lawsuit claiming that the State's refusal to allow him post-conviction access to DNA evidence used to convict him of kidnapping and sexual assault violated his constitutional rights. Prisoner was not barred from proceeding with this lawsuit before his criminal conviction was set aside, as success in the lawsuit would not necessarily imply the invalidity of his conviction. Osborne v. Dist. Attorney's Office, No. 04-35126, 2005 U.S. App. Lexis 19369 (9th Cir.) [2005 JB Nov]
     Louisiana prisoner's challenge to a state statute requiring him and other convicted felons to provide blood samples for inclusion in a DNA database was frivolous, in light of a prior decision upholding a "nearly identical" Texas statute against Fourth Amendment challenge. Brown v. Williams, No. 04-30863, 124 Fed. Appx. 907 (5th Cir. 2005). [Editor's Note: The prior decision is Velasquez v. Woods, No. 02-11251, 329 F.3d 420 (5th Cir. 2003). [N/R]
     A defendant who initially pled guilty to a felony charge, and therefore lawfully had a DNA sample collected for the California state DNA Database, had no constitutional right to the return of his DNA samples when his conviction was subsequently reduced to a misdemeanor, even though, under state law, the sample would not have been collected had the initial charge been a misdemeanor. Coffey v. Super. Ct. of San Francisco, No. A108693, 2005 Cal. App. Lexis 840 (Cal. 1st App. Dist.). [N/R]
     Florida's DNA collection statute and sex offender registration/notification system do not violate individual's constitutional rights. Doe v. Moore, No. 04-10279 2005 U.S. App. Lexis 10354 (11th Cir.). [N/R]
     Georgia Department of Corrections did not violate either the U.S. or Georgia state constitutions by compelling incarcerated prisoners convicted of felony to submit saliva samples for purposes of a DNA database. Padgett v. Donald, No. 03-16527, 2005 U.S. App. Lexis 3647 (11th Cir. 2005). [N/R]
     A defendant convicted of possessing stolen bank funds is not required, under the DNA Analysis Backlog Elimination Act of 2000, 42 U.S.C. section 14135a, to submit a DNA sample to her probation officer. U.S. v. Cooper, No. 04-1334 (3d Cir. 2005). [N/R]
     Illinois statute requiring convicted felons to submit blood samples for inclusion in a DNA database did not violate their rights, since the privacy expectations of convicted felons are reduced, and the governmental interest in maintaining the database outweighed their privacy interest. The result was not altered by the fact that the statute targeted all felons rather than only sex offenders. People v. Edwards, No. 1-03-1629, 2004 Ill. App. Lexis 1250 (Ill. App. 1st Dist. 2004). [2005 JB Jan]
     Federal appeals court, by 6-5 vote, overturns prior panel decision that law requiring federal parolees to furnish blood samples for FBI crime DNA database use was an unconstitutional invasion of privacy. United States v. Kincade, #02-50380, 379 F.3d 813 (9th Cir. en banc. 2004). [2004 JB Nov]
     State of Pennsylvania was entitled, under its statutes, to obtain a DNA sample from a prisoner convicted of rape and murder, even though he had been subjected to DNA testing during the investigation of his crimes, when the first DNA test was before the enactment of the statute creating a DNA database. Luckett v. Blaine, 850 A.2d 811 (Pa. Cmwlth. 2004). [N/R]
     Iowa statute requiring inmates convicted of certain offenses to submit a blood specimen for DNA profiling was intended to promote public safety, rather than to punish prisoners, and therefore was not an unconstitutional retroactive enhancement of their punishment. Schreiber v. State of Iowa, #01-1192, 66 N.W.2d 127 (Iowa 2003). [N/R]
     Prisoners incarcerated after their convictions for armed bank robbery had no constitutional privacy right against their correct identification, and therefore the gathering of DNA samples from them for inclusion in a federal database maintained by the FBI, pursuant to the DNA Analysis Backlog Elimination Act, 42 U.S.C. Secs. 14135-14135e, was reasonable. Groceman v. U.S. Department of Justice, No. 02-10810, 354 F.3d 411 (5th Cir. 2004). [N/R]
     Georgia DNA law requiring convicted felons to provide DNA samples did not violate prisoners' rights under either the U.S. or Georgia constitutions. Any right of privacy in the identification of such felons was "substantially outweighed" by the government's interest in having a DNA database for use in solving crimes and exonerating innocent persons. Padgett v. Ferrero, 294 F. Supp. 2d 1338 (N.D. Ga. 2003). [N/R]
     Pennsylvania statute authorizing Department of Corrections to obtain a DNA sample from an inmate while they were incarcerated for enumerated offenses, including robbery and burglary, did not entitle it to do so when prisoner's sentence for robbery and burglary had expired, and while he was serving a sentence for a different offense. Smith v. Department of Corrections, 837 A.2d 652 (Pa. Cmwlth. 2003). [N/R]
     Federal appeals court panel finds that federal statute requiring the forced extraction of DNA samples from parolees, in the absence of individualized suspicion of another crime, violated the Fourth Amendment and did not fit within a "special needs" exception. Full appeals court grants a rehearing en banc. U.S. v. Kincade, #02-50380, 2003 U.S. App. Lexis 20123, 345 F.3d 1095 (9th Cir. 2003), rehearing en banc granted, 2004 U.S. App. Lexis 89 (9th Cir. 2004). [2004 JB Feb]
     Court rejects Pennsylvania prisoner's challenge to a change in his custody level and visitation status imposed as a penalty for his refusal to provide a DNA sample. State DNA statute, 42 Pa. C.S. Sec. 4701-4741, was constitutional and prisoner was not entitled to an injunction against prison officials obtaining a DNA sample from him by force or by using other methods to persuade him to submit a DNA sample. Singleton V. Lavan, 834 A.2d 672 (Pa. Cmwlth 2003). [N/R]
     Federal DNA Analysis Backlog Elimination Act of 2000, 42 U.S.C. Sec. 14135(a)-14135(e), did not violate federal prisoner's Fifth Amendment right against self-incrimination or the prohibition against "ex post facto" crimes (retroactive punishment for conduct not previously criminal) even though it was not enacted until after the plaintiff prisoner's conviction and criminalized the refusal to provide a DNA sample. Vore v. U.S. Dept. of Justice, 281 F. Supp. 2d 1129 (D. Ariz. 2003). [N/R]
     Federal appeals court panel rules that statute requiring federal parolees submit a DNA sample to be included in a database violates the Fourth Amendment as a "suspicionless search" for law enforcement purposes. United States of America v. Kincade, No. 02-50380, 2003 U.S. App. Lexis 20123 (9th Cir.). [2003 JB Nov]
     North Dakota Supreme Court upholds constitutionality of state statute expanding DNA testing requirement to prisoners convicted of enumerated non-sexual violent felonies. Statute was rationally related to legitimate government purposes of apprehending and identifying perpetrators of future sex-related and violent crimes, "exonerating the innocent," and reducing costs. State of North Dakota v. Leppert, No. 20020160, 656 N.W.2d 718 (N.D. 2003). [N/R]
    Florida state DNA testing statute upheld against state constitutional privacy challenge. Requirement that all felons convicted of certain offenses undergo a DNA blood test also did not violate a juvenile felon's Fourth Amendment rights, since the public's legitimate interests in identifying the perpetrators of crime, absolving the innocent, and preventing recidivism outweighed a felon's diminished expectation of privacy. L.S. v. State of Florida, 805 So. 2d 1004 (Fla. App. 2001). [N/R]
     Update: federal appeals court overturns trial court decision ruling that a convicted rapist had a constitutional due process right to DNA testing on evidence in his case in an attempt to prove his innocence. Harvey v. Horan, #01-6703, 2002 U.S. App. Lexis 923 (4th Cir.). [2002 JB Mar]
     299:164 Federal court rules that a convicted rapist had a constitutional due process right to DNA testing on evidence in his case in an attempt to prove his innocence. Harvey v. Horan, 119 F. Supp. 2d 581 (E.D. Va. 2001).
     277:3 Law requiring Pennsylvania prisoners convicted of violent and sex offenses to furnish blood samples for DNA testing and database storage did not improperly retroactively enhance punishment for their crimes; requirement was a reasonable administrative measure for identification of prisoners and any punishment would be for non-compliance with this rule, not for the original conviction. Dial v. Vaughn, 733 A.2d 1 (Pa. Cmwlth. 1999).
     275:163 Massachusetts prisoner previously convicted of an offense now listed in state statute requiring the supplying of a DNA sample was required to provide one when reincarcerated on an offense not so listed. Murphy v. Dept. of Correction, 711 N.E.2d 149 (Mass. 1999).
     265:6 Federal appeals court upholds statute requiring prisoner to give DNA sample for creation of a DNA Offender Database; rejects unreasonable search and seizure, self-incrimination, religious freedom and impermissible retroactive application arguments. Shaffer v. Saffle, #97-7107, 148 F.3d 1180 (10th Cir. 1998).
     255:36 Illinois statute providing that courts must issue orders requiring specified prisoners to provide blood samples for DNA testing and then punish noncompliance as contempt of court violated state constitution's separation of powers, Illinois Supreme Court rules, while upholding generally statute that sex offender prisoners must provide blood samples for such testing. Murneigh v. Gainer, 177 Ill. 2d 287, 685 N.E.2d 1357 (1997).
     248:117 Kansas DNA blood and saliva specimen collection requirement for prisoners convicted of murder and sexual offenses did not constitute an unreasonable search and seizure; creating databank of such prisoners' DNA would help detect and deter future crimes by them after their release. Schlicher v. Peters, 103 F.3d 940 (10th Cir. 1996).
     229:5 Illinois statute requiring imprisoned sex offenders to supply blood samples for DNA testing prior to their release does not violate U.S. constitutional provision prohibiting retroactive enhanced punishment for criminal acts. Gilbert v. Peters, 55 F.3d 237 (7th Cir. 1995).
     230:19 Federal appeals court upholds Oregon statute requiring convicted murderers and sex offenders to submit blood samples for DNA testing to create state data bank. Rise v. State of Oregon, 59 F.3d 1556 (9th Cir. 1995).
     221:69 Statute requiring prisoners to submit DNA blood samples for purposes of creating a DNA database did not violate Fourth or Eighth Amendment. Sanders v. Coman, 864 F.Supp. 496 (E.D.N.C. 1994).
     224:116 Illinois Supreme Court upholds constitutionality of statute requiring convicted sex offenders to submit a blood sample for DNA testing prior to prison release. Doe v. Gainer, 162 Ill. 2d 15, 642 N.E.2d 114 (1994). » Editor's Note: The Illinois Supreme Court noted in passing that a federal trial court, in an unpublished memorandum opinion and order, had also recently upheld the constitutionality of the Illinois DNA testing statute in Gilbert v. Peters, Nos. 93-C-20012, 92-C-20354 (N.D. Ill. 1994), 1994 West Law 369643.
     Correctional regulation providing for loss of good conduct credits for prisoners who refuse to provide a blood sample for DNA testing data bank upheld. Ewell v. Murray, 11 F.3d 482 (4th Cir. 1993).
     Washington state statute requiring inmates convicted of felony sex or violent offenses to submit to DNA blood identification sampling was facially valid and did not violate prisoner's religious freedom rights; forcible drawing of blood for purposes of DNA testing after prisoner's convictions for applicable offenses were reversed may have violated his Fourth and Eighth Amendment rights, however, if prison officials were aware of the reversal. Ryncarz v. Eikenberry, 824 F.Supp. 1493 (E.D. Wash. 1993).
     State statute requiring Department of Corrections to take convicted felony inmate blood samples for DNA testing to create database for future law enforcement purposes did not violate Fourth Amendment; use of statute to modify mandatory parole based on inmate refusal to provide blood sample violated Constitution's "ex post facto" clause. Jones v. Murray, 962 F.2d 302 (4th Cir. 1992).
     Statute requiring prisons to take and store blood of convicted felons for DNA analysis does not violate the Fourth Amendment or any legitimate expectation of privacy rights. Jones v. Murray, 763 F.Supp. 842 (W.D. Va. 1991).