In Haskell v. Harris (See Ninth Circuit: Certain Arrested Suspects Can be Swabbed for a DNA Sample ), the Ninth Circuit Court of Appeals upheld California’s DNA and Forensic Identification Data Base and Data Bank Act (DNA Act) which allows law enforcement officers to collect DNA samples from adults arrested for felonies.
Update: In United States v. Fricosu, after Ramona Fricosu was arrested, her DNA was sampled pursuant to the DNA Fingerprinting Act of 2005. 42 U.S.C. §14135(a). Fricosu filed a motion challenging the constitutionality of DNA sampling, arguing that DNA sampling violated the Fourth Amendment. She also requested that the court order the government to destroy her DNA sample and the CODIS profile discovered as a result of the DNA sample.
The Colorado District Court applied the “totality of the circumstances analysis” to both the DNA sampling and the CODIS profile. In regards to the DNA sampling, the Colorado District Court held there was no Fourth Amendment violation as the sampling was minimally invasive.
The Colorado District Court then agreed with the Third Circuit’s ruling in United States v. Mitchell. United States v. Mitchell, 652 F.3d 387 (3rd Cir. 2011) (en banc), pet. for cert. filed (Nov. 22, 2011)(No. 11-7603, 11A384), cert. denied -S.Ct. – (Mar. 19, 2012). In Mitchell, the Third Circuit held that there is “a significant difference in the “amounts of private information” included in a DNA sample and a CODIS profile, the latter of “which at present reveals only identity.” That this information could potentially be used for nefarious purposes was not evidence, but hypotheses which were neither likely nor imminent.
The Colorado District Court held that there were sufficient safeguards in the statutes to limit that law enforcement could use the DNA sampling for identification purposes, and if used otherwise punishment and or penalization would be given.
Fricosu’s motion was denied.
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