United States v. Robinette, CASE NO. 13-CR-0003 AWI BAM

UNITED STATES OF AMERICA, Plaintiff,

v.CHRISTOPHER DAVID ROBINETTE, Defendant.

CASE NO. 13-CR-0003 AWI BAM

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA

Dated: January 18, 2013

ORDER ON DEFENDANT'S MOTION

FOR STAY OF FORCED TAKING

OF A DNA SAMPLE

Defendant Christopher David Robinette moves to stay the forced taking of a DNA sample authorized by 42 U.S.C. § 14135a. Robinette argues that requiring defendant, an arrestee, to submit to a buccal swab violates his Fourth Amendment rights against unreasonable search and seizure.

The buccal swab from defendant was requested as part of the normal U.S. Marshal booking procedures. Defendant Robinette was arrested on a criminal complaint charging violation of 18 U.S.C. §2251(a), Sexual Exploitation of Children, and 18 U.S.C. §2423(a), Transportation with Intent to Engage in Criminal Sexual Activity. Upon booking, defendant objected to the collection of the DNA sample as violative of his Fourth Amendment rights. At arraignment on the complaint on December 26, 2012, defendant raised the objection, and the court set a briefing schedule on the objection. The court stayed the taking of the sample pending the hearing. On January 8, 2013, defendant filed a formal motion for a stay of the forced DNS sample pending the Supreme Court's decision in Maryland v. King. On January 9, 2013, the government filed an opposition to the stay.

An indictment issued on January 3, 2013 by the grand jury upon probable cause to believe that defendant had committed the felony offenses for which he has been charged. Defendant was arraigned on the indictment on January 11, 2013. Also on January 11, 2013, the Court heard oral argument on defendant's motion to stay. The government appeared by Assistant United States Attorney David Gappa. Defendant was present and appeared by retained counsel John Balazs.

DNA Statute

In 1994, Congress passed the Violent Crime Control and Law Enforcement Act ("Crime Control Act"), Pub.L. No. 103-322, 108 Stat. 1796 (codified as amended at 42 U.S.C. §§ 13701-14223), which authorized the Federal Bureau of Investigation ("FBI") to establish an index of DNA samples. Pursuant to this authority, the FBI created the Combined DNA Index System ("CODIS"), which allows State, local and federal "forensics laboratories to exchange and compare DNA profiles electronically in an attempt to link evidence from crime scenes for which there are no suspects to DNA samples of convicted offenders on file in the system."¹ H.R. Rep. 106-900(I), at 8 (2000), reprinted in 2000 U.S.C.C.A.N. 2323, 2324.

In 2000, Congress enacted the DNA Analysis Backlog Elimination Act (the "DNA Act" or the "Act"), which required DNA samples to be collected from individuals in custody and those on probation, parole, or supervised release after being convicted of "qualifying Federal offenses." 42 U.S.C. § 14135a. Congress passed the Justice for All Act in 2004, which further amended the DNA Act. Pub.L. No. 108-405, § 203(b), 118 Stat. 2260, 2270 (2004).

Thereafter, Congress amended the DNA Act in 2006, which required the collection of a DNA sample "from individuals who are arrested, facing charges, or convicted." Pub.L. 109-248, § 155, (codified as amended at 42 U.S.C. § 14135a(a)(1)(A) & (2) (collection from federal offenders) and its implementing regulation, 28 C.F.R. § 28.12. ). Pursuant to the DNA Act, "[t]he Attorney General, the Director of the Bureau of Prisons, or the probation office responsible ... may use or authorize the use of such means as are reasonably necessary to detain, restrain, and collect a DNAsample from an individual who refuses to cooperate in the collection of the sample." 42 U.S.C. § 14135a(a)(4)(A); 28 C.F.R. §28.12(d). Moreover, "[a]n individual from whom the collection of a DNA sample is authorized under this subsection who fails to cooperate in the collection of that sample shall be ... guilty of a class A misdemeanor." Id. § 14135a(a)(5)(A). Once the DNA sample is collected, the collection kit is forwarded to the FBI for analysis and inclusion in CODIS. Id. § 14135a(b). Qualifying federal offenses are any felony, any offense under chapter 109A of Title 18, and a crime of violence. 42 U.S.C. §14135a(d).

Defendant Robinette is a federal arrestee who is charged with a felony, an offense under Chapter 109A of Title 18 and a crime of violence. Thus, the crimes alleged against defendant are qualifying federal offenses. Robinette, therefore, qualifies under the DNA Act to be required to give a DNA sample.

The Swab is a Search under the Fourth Amendment

The Fourth Amendment addresses "the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures." U.S. Const. Amend. IV. The Fourth Amendment protects reasonable and legitimate expectations of privacy. Katz v. United States, 389 U.S. 347 (1967).

Intrusions into the human body are searches subject to the restrictions of the Fourth Amendment. U.S. v. Wright, 215 F.3d 1020, 1025 (9th Cir.) (the taking of blood), cert. denied, Wright v. U.S., 531 U.S. 969 (2000). Collection of a DNA sample constitutes an invasion of privacy that is subject to the strictures of the Fourth Amendment. U.S. v. Mitchell, 652 F.3d 387, 406 (3d Cir. 2011), cert. denied, 132 S.Ct 1741 (2012). For instance, subjecting a person to a breathalyzer test, which generally requires the production of alveolar or deep lung breath for chemical analysis, implicates similar concerns about bodily integrity and, like the blood-alcohol test the Supreme Court considered in Schmerber, is also a search. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 616-17, 109 S. Ct. 1402 (1989), citing Schmerber v. California, 384 U.S. 757, 771-72, 86 S.Ct. 1826 (1966) (A forced blood draw can violate a person's Fourth Amendment rights if it was unreasonable under the circumstances). The Ninth Circuit has held that a buccal swab is a search. "There is no question that the buccal swab constituted a search under the Fourth Amendment."Friedman v. Boucher, 580 F.3d 847, 852 (9th Cir. 2009). Thus, the DNA testing in this case implicates Fourth Amendment rights.

Third Circuit's Ruling that the DNA Act is Constitutional

Neither the Ninth Circuit nor the Supreme Court has yet to rule that the DNA Act is unconstitutional on a set of facts similar to those before the Court. In U.S. v. Kriesel, 508 F.3d 941, 948 -949 (9th Cir. 2007), the court held that the 2004 amendment to the DNA Act is constitutional as to supervised releasees because the government's significant interests in identifying supervised releasees, preventing recidivism, and solving past crimes outweigh the diminished privacy interests that may be advanced by a convicted felon. Kriesel, 508 F.3d at 950. The court cautioned, however that: "We emphasize that our ruling today does not cover DNA collection from arrestees or non-citizens detained in the custody of the United States, who are required to submit to DNA collection by the 2006 version of the DNA Act." U.S. v. Kriesel, 508 F.3d at 948 -949 (requiring supervised release of felon to provide DNA sample).

The Third Circuit, in United States v. Mitchell, 652 F.3d 387 (3rd Cir.2011), cert. denied, - U.S. —, 132 S.Ct. 1741, 182 L.Ed.2d 558 (2012), held that the federal DNA Act is constitutional as against a facial and as applied challenge on facts similar to those before this court. In Mitchell, the Defendant was arrested, placed in pretrial detention, and was detained at the time that the DNA sample was sought to be collected. (The case does not identify the type of DNA testing). Defendant had been charged with intent to distribute a mixture and substance containing a detectable amount of cocaine. Defendant objected to the DNA sampling. The United States District Court, 681 F.Supp.2d 597, decided in favor of the defendant, and the Government appealed.

The Third Circuit held that the DNA Act, permitting the suspicionless collection of DNA samples from arrestees, did not violate the Fourth Amendment applying a "totality of the circumstances" test. The court upheld the collection of DNA under § 14135a against what the court categorized as two separate "searches." The first search is the physical collection of the DNA sample. The Court held, based upon Supreme Court authority, that collecting DNA is a minimal intrusion. Id. at 407, citing Schmerber v. California, 384 U.S. 757, 771, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966) (venipuncture, in which blood is drawn from the arm). The Court noted that "DNAsamples may also be collected by swabbing the inside of the mouth (a "buccal swab"). This method is likewise less invasive than venipuncture." 652 F.3d at 408. The court stated that "act of collecting a DNA sample is 'neither a significant nor an unusual intrusion.'" Id.

The second search the Court considered against Fourth Amendment standards was the use of the DNA sample; running an arrestee's DNA profile through CODIS to reveal matches to crime-scene samples from unsolved cases. The court noted that this search could invade a detainee's privacy. The court, however, held that the government's interests in identifying arrestees and solving crimes outweighs an arrestee's diminished expectations of privacy. The court held that DNA profiling is simply a more precise method of ascertaining identity and is thus akin to fingerprinting, which has long been accepted as part of routine booking procedures.² Fingerprinting has been consistently upheld as constitutional. See Hayes v. Florida, 470 U.S. 811, 813-18, 105 S.Ct. 1643 (1985).³ After analogizing the DNA profile to traditional fingerprinting, the Mitchell court stated that, "[g]iven the record in front of us today, we conclude that a DNA profile is used solely as an accurate, unique, identifying marker—in other words, as fingerprints for the twenty-first century." Mitchell, 652 F.3d at 410. The court also found that the DNA sampling promotes legitimate governmental interests...