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United States v. Kincade

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In United States v. Kincade, the United States Court of Appeals for the Ninth Circuit is rehearing its prior decision that the compelled production of a DNA sample from a parolee for inclusion in a nation-wide DNA database is an unlawful search. This case involves the Fourth Amendment protections against unreasonable government search and seizure and law enforcement accumulation and use of personal information.

Procedural History

In this case, Thomas Cameron Kincade filed suit against the federal government, arguing that the DNA Analysis Backlog Elimination Act of 2000 violates Fourth Amendment guarantees against unreasonable search and seizure. The DNA Act requires certain felons and parolees to submit a sample of their DNA to the government. The DNA Act does not require suspicion that an individual will commit or has committed another offense, nor that the sample be taken in order to aid in the investigation of a particular crime. Refusal to provide a DNA sample is a misdemeanor. Once the sample is taken and analyzed, a DNA profile is created and added to the Combined DNA Index System (CODIS) and made available to law enforcement by the Federal Bureau of Investigation.

In March 2002, Thomas Kincade was ordered by his probation officer to submit to a blood extraction because he had been convicted of armed robbery, an offense listed in the DNA Act as grounds for DNA extraction. Kincade refused to have his blood drawn, and was arrested and imprisoned for violating his supervised release. Kincade filed suit, arguing that the forced extraction of blood under the DNA Act violates the Fourth Amendment.

The district court ruled that Kincade’s refusal to provide a DNA sample was a violation of his supervised release condition to obey his probation officer. A three-judge panel of the Ninth Circuit Court of Appeals voted 2-1 to reverse, concluding that forced blood extraction is a search under the Fourth Amendment. The panel found that the government is not entitled to take a DNA sample from an individual simply because that person is a parolee, but must establish individualized suspicion that the parolee has committed another crime before the government may carry out the search. The panel also determined that the blood extractions under the DNA Act do not fall within the "special needs" exception of the Fourth Amendment, which permits law enforcement to carry out otherwise unreasonable searches if they can show a special need beyond the normal necessity of law enforcement. One judge dissented from the decision, claiming that DNA profiling is similar to fingerprinting, and thus not an unreasonable search.

In January 2004, the Ninth Circuit voted to withdraw the panel decision and that eleven circuit judges would rehear the case (known as a rehearing en banc).

In the rehearing, EPIC filed a "friend of the court" brief in support of Kincade that focused on the false notion that DNA and fingerprinting involve the same privacy concerns. While a fingerprint merely indicates whether an individual has been in a specific location, DNA can reveal health, gender, and familial information. Furthermore, because members of the same family have similar DNA patterns, an individual's DNA profile may indirectly implicate a relative. Moreover, EPIC pointed out, there is no uniform storage policy for DNA samples; rather, each state has a different policy. Not only could samples end up in the hands of researchers, but international cooperation among law enforcement agencies has opened CODIS up to other governments.

In a close 6-5 ruling (pdf), the Ninth Circuit Court of Appeals determined on August 18, 2004 that a parolee can be forced to provide a DNA sample for the FBI's vast national DNA database.

In determining that the Fourth Amendment allows compelled DNA profiling of parolees who are not suspected of having committed an additional crime, Judge O'Scannlain's majority opinion noted that parolees are not entitled to the full extent of constitutional protections enjoyed by the public. The court concluded that the public interest served by collecting parolees' DNA outweighed parolees' "substantially diminished expectations of privacy" and "the minimal intrusion occasioned by blood sampling." A concurring opinion by Judge Gould emphasized that the court had not determined the rights of an individual "who has fully paid his or her debt to society, who has completely served his or her term, and who has left the penal system . . . . Once those previously on supervised release have wholly cleared their debt to society, the question must be raised: 'Should the CODIS entry be erased?'" Judge Gould noted that this question would have to be addressed in a future case.

Judge Reinhardt's lengthy dissent (joined by Judge Pregerson, Judge Kozinski, and Judge Wardlaw) chastised the majority's holding, stating, "Never has the [Supreme] Court approved of the government's construction of a permanent governmental database built from general suspicionless searches and designed for use in the investigation and prosecution of criminal offenses." Judge Reinhardt went on to caution, "Privacy erodes first at the margins, but once eliminated, its protections are lost for good, and the resulting damage is rarely, if ever, undone. Today, the court has opted for comprehensive DNA profiling of the least protected among us, and in so doing, has jeopardized us all."


Case History

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Last Updated: April 4, 2006
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