Constitutional Law - Diminished Expectations of Privacy and the Human Genome: Circuits Align on Mandatory DNA Profiling of Convicted Felons

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Constitutional Law--Diminished Expectations of Privacy and the Human Genome: Circuits Align on Mandatory DNA Profiling of Convicted Felons--United States v. Weikert, 504 F.3d 1 (1st Cir. 2007)

Pursuant to congressional mandate, individuals convicted of certain predicate offenses must submit to mandatory deoxyribonucleic acid (DNA) extraction. (1) Such an intrusion on personal autonomy implicates the Fourth Amendment, which affords all citizens the right to be free from "unreasonable searches and seizures." (2) In United States v. Weikert, (3) the United States Court of Appeals for the First Circuit, in a case of first impression, considered whether a forced DNA submission violates the Fourth Amendment. (4) In reversing the district court's decision to grant the defendant's motion for preliminary injunction, the court joined eleven circuits and concluded that extracting and retaining DNA profiles of supervised releasees during their supervised terms did not violate the Fourth Amendment. (5)

In 1990, Leo Weikert pled guilty to conspiracy in the United States District Court for the Western District of Texas. (6) After serving four years of the sentence, he escaped from prison but was apprehended and reincarcerated in Massachusetts five years later. (7) After serving his original sentence for the conspiracy count and an additional eight-month term for escaping custody, Weikert began a court-ordered 24-month supervised release program. (8)

The probation office informed Weikert of its intention to secure a blood sample, pursuant to the DNA Analysis Backlog Elimination Act of 2000 (Act). (9) In turn, Weikert filed a motion in the United States District Court for the District of Massachusetts to enjoin the extraction. (10) The district court recognized at the outset of its opinion that eleven other circuits have concluded that some form of forced DNA submission is constitutional. (11) Despite the persuasive authority of eleven sister circuits, the district court reached a contrary conclusion by declaring the Act unconstitutional. (12)

The district court aptly recognized the circuit split over the applicable standard. (13) After adopting a "special needs" approach, the lower court determined that DNA profiling serves merely to enhance general crime-solving ability. (14) Consequently, the lower court issued the injunction, concluding that the Act fails to serve a requisite special need beyond the general needs of law enforcement. (15) On appeal, however, the First Circuit reversed and remanded the case after concluding, based on a different standard, that a forced extraction of DNA from supervised releasees complies with the Fourth Amendment. (16)

DNA profiling involves examining thirteen predetermined locations (loci) inherent to every DNA molecule. (17) The probability of two different DNA molecules displaying identical traits at these thirteen points is less than one in one trillion. (18) Although an entire DNA molecule can provide extensive personal genetic information, these specific loci are allegedly void of such information, thereby warranting the title "junk DNA." (19) Debate exists, however, as to the legitimacy of that characterization. (20) Since DNA evidence reportedly entered the criminal justice system in 1987, the federal government and all fifty states now require some form of forced DNA extraction for certain criminal offenders. (21) The collected samples are stored in centralized databases, thereby enabling law enforcement to take DNA evidence recovered from crime scenes and run electronic comparative searches against all collected DNA profiles in the country. (22)

Circuits addressing the constitutionality of DNA profiling of convicted offenders disagree over the applicable evaluative standard, yet unanimously align over the end result. (23) While the Supreme Court has yet to approach this precise issue, it has provided guidance within the general umbrella of search and seizure jurisprudence. …