There they go again! The 9th Circuit Court loves criminals, and loves to be overturned.
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Court tosses law making parolees provide DNA
Appellate panel rules federal law violates right to privacy
Bob Egelko, Chronicle Staff Writer
Friday, October 3, 2003
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URL: sfgate.com/article.cgi?file=/c/a/2003/10/03/DNA.TMP
A federal appeals court declared unconstitutional Thursday a law requiring federal parolees to give blood for a DNA databank used to investigate crimes, a ruling that could also overturn laws in California and other states.
The law, passed by Congress in 2000, violates the constitutional ban on unreasonable searches because blood is extracted from parolees who are not suspected of committing new crimes, said the Ninth U.S. Circuit Court of Appeals in San Francisco in a 2-1 decision.
"Even parolees maintain a reasonable expectation of privacy in their own bodies," said Judge Stephen Reinhardt in the majority opinion. Although the government has targeted only a limited, supervised population for DNA collection, he wrote, "the rest of us might not be far behind."
The Justice Department, which defended the law in court, declined comment on the ruling. The government could ask the appeals court to order a new hearing before an 11-judge panel or appeal to the Supreme Court.
DNA testing has been used in recent years to crack thousands of unsolved cases, and has also exonerated many prisoners, some from death row. Congressional leaders say they hope for passage of a bill this year to provide greater access to DNA evidence in death penalty and rape cases.
In its ruling Thursday, the court didn't say whether taking blood from federal prisoners for the DNA databank, authorized by the same law, was also unconstitutional. But Reinhardt said prisoners, like parolees, retain some right of privacy, as long as prison order and security are not threatened.
CURRENT CASES NOW AT ISSUE
The panel also didn't address whether the ruling would affect criminal prosecutions that relied on DNA evidence derived from blood taken from parolees or prisoners. But a lawyer for the Los Angeles-area parolee who challenged the law said such evidence should be excluded in current and future prosecutions.
"It's the same principle that applies any time (police) get evidence through an illegal search," said Monica Knox, a deputy federal public defender. She said past convictions based on DNA evidence could not be challenged now because defendants failed to object to the evidence during their trials.
Loyola Law School Professor Laurie Levenson doubted that any prosecutions from current DNA databanks would be affected. She said because the law was considered to be valid when the blood was extracted, "I think the courts will be hesitant to throw out evidence."
Knox also said the ruling, if it stands, may be used to invalidate similar state laws. Laws requiring collection of DNA for the national crime databank exist in every state, including California and eight others in the Ninth Circuit's jurisdiction.
Hallye Jordan, spokeswoman for state Attorney General Bill Lockyer, said the ruling "does not impact us directly" but might be used in the future to challenge the California law, which has been upheld by state appellate courts.
STATE HAS 200,000 SAMPLES
California's DNA databank was started with registered sex offenders in 1984 and was expanded to other violent crimes by a 1998 law. It now has more than 211,000 samples, Jordan said. She said DNA from people arrested on one of the charges covered by the law, but not yet convicted, is kept in a separate databank for two years, unless the person is cleared of the charge earlier.
Statewide, more than 400 cases have been prosecuted from "cold hits" that matched evidence at a crime scene, Jordan said. In one such case, John Davis, a state prison inmate, was indicted in August on charges of raping and murdering Barbara Ellis Martz in 1993 in her home in San Francisco's Potrero Hill neighborhood.
Nationally, the FBI has 1.4 million DNA samples in its databank, mostly from prisoners and parolees, said spokesman Paul Bresson.
The ruling involved Thomas Kincade, who pleaded guilty to armed bank robbery in a Los Angeles federal court in 1993, was paroled from prison in 2000 and refused an order to give blood for a DNA sample in March 2002. He was prosecuted for his refusal and sentenced to four months in jail, but has remained free during his appeal.
Another panel of the appeals court had ruled on the issue in 1995 when it upheld a similar law in Oregon. But Reinhardt, joined by Judge Richard Paez, said the 1995 ruling has been undermined by subsequent U.S. Supreme Court decisions.
SUPREME COURT CITED
In one 2000 case, he said, the high court barred the use of highway roadblocks to search for narcotics because officers had no grounds to suspect individual drivers of wrongdoing. A year later, the court refused to let a hospital test pregnant women for drugs and turn the evidence over to police, saying again that law enforcement searches require individual suspicion. In contrast, Reinhardt said, the court has upheld random drug tests and other searches for nonlaw enforcement purposes, like public safety.
"Reasonable suspicion must exist before the government may compel parolees to submit to the extraction of blood," Reinhardt said. Unlike routine fingerprinting after an arrest, he said, DNA sampling "results from a forced intrusion into an individual's body."
Dissenting Judge Diarmuid O'Scannlain said the Supreme Court has not yet decided whether parolees can be searched without suspicion of wrongdoing, so the appeals court's 1995 ruling remains binding in the circuit.
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