504 F.3d 1 (1st Cir. 2007), 06-1861, United States v. Weikert

Docket Nº:06-1861.
Citation:504 F.3d 1
Party Name:UNITED STATES of America, Appellant, v. Leo WEIKERT, Defendant, Appellee.
Case Date:August 09, 2007
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

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504 F.3d 1 (1st Cir. 2007)

UNITED STATES of America, Appellant,


Leo WEIKERT, Defendant, Appellee.

No. 06-1861.

United States Court of Appeals, First Circuit.

August 9, 2007

Heard: Feb.5, 2007.


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Randall E. Kromm, Assistant United States Attorney, with whom Michael J. Sullivan, United States Attorney, was on brief for appellant.

Terence P. Noonan, with whom Noonan & Noonan was on brief, for appellee.

Before Lipez, Circuit Judge, GIBSON [*] and STAHL, Senior Circuit Judges.

LIPEZ, Circuit Judge.

This case presents a question of first impression in this circuit: is it a violation

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of the Fourth Amendment's prohibition on unreasonable searches and seizures to require an individual on supervised release to provide a blood sample for purposes of creating a DNA profile and entering it into a centralized database? Agreeing with the eleven other circuits that have held similarly, we hold that it is not. In doing so, we interpret the Supreme Court's decision in Samson v. California, --- U.S. ----, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006), to require that we join the majority of the circuits in applying a "totality of the circumstances" approach to the issues in this case, rather than the "special needs" analysis used by the minority of circuits.

However, we also impose an important limitation on our holding. Because the appellant is currently on supervised release and will remain so until 2009, we do not resolve the question of whether it is also constitutional to retain the DNA profile in the database after he is no longer on supervised release. Mindful of the well-established principle that constitutional cases should be decided as narrowly as possible and the rapid pace of technological development in the area of DNA analysis, we reserve judgment on that issue for another day.


A. Statutory Background

Pursuant to the DNA Analysis Backlog Elimination Act of 2000 ("DNA Act"), Pub. L. No. 106-546 (codified as amended in scattered sections of 10 U.S.C., 18 U.S.C., and 42 U.S.C.), individuals who have been convicted of a "qualifying federal offense" and who are incarcerated or on parole, probation, or supervised release must provide federal law enforcement authorities with "a tissue, fluid, or other bodily sample" for purposes of extracting their DNA. 42 U.S.C. §§ 14135a(a)(1)-(2), (c)(1).1

The DNA Act specifies that the government may "use or authorize the use of such means as are reasonably necessary" to collect a DNA sample. Id. at § 14135a(a)(4)(A). Before the district court a United States Probation Officer explained that in Weikert's case a blood sample would be obtained by means of a painless finger prick. Refusal to comply with the DNA collection procedure is a misdemeanor punishable by up to one year's imprisonment and a fine of $100,000. 42 U.S.C. § 14135a(a)(5); 18 U.S.C. §§ 3571, 3581. Moreover, courts are required to order compliance with the DNA Act "as an explicit condition of supervised release." 18 U.S.C. § 3583(d). Thus, failure to provide a DNA sample in compliance with the DNA Act both violates the obligation not to commit any additional offenses while on supervised release and violates an express condition of the release. See 18 U.S.C. § 3583(d).

The FBI uses the DNA sample to create a genetic profile of the individual based on information contained at thirteen specified locations in the person's DNA. See Nat'l Comm'n on the Future of DNA Evidence, Nat'l Inst. of Justice, U.S. Dep't of Justice, The Future of Forensic DNA Testing 19 (2000), available at http://www.ncjrs.gov/pdffiles1/nij/183697.pdf (hereinafter "The Future of Forensic DNA Testing"). Profiling is performed using only so-called "junk DNA" - -DNA that differs from one individual to the next and thus can be used for purposes of identification but which was "purposely selected because [it is] not associated with any known physical or medical characteristics" and "do[es] not

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control or influence the expression of any trait." H.R. Rep. No. 106-900(I), at 27 (2000), 2000 WL 1420163 (letter of Robert Raben, Assistant Attorney General, to The Honorable Henry J. Hyde, Chairman, House Judiciary Committee).2 Thus, the profiles contain only "an agency identifier for the agencies submitting the DNA profile; the specimen identification number; the DNA profile; and the name of the DNA personnel associated with the DNA analysis." Id. In effect, the system "provide[s] a kind of genetic fingerprint, which uniquely identifies an individual, but does not provide a basis for determining or inferring anything else about the person." Id.

The profile is then entered into the FBI's Combined DNA Index System ("CODIS"), a massive, centrally managed database including DNA profiles from federal, state, and territorial DNA collection programs, as well as profiles drawn from crime-scene evidence, unidentified remains, and genetic samples voluntarily provided by relatives of missing persons. As of April 2007, CODIS contained more than four million profiles of individual offenders and over 175,000 profiles derived from crime scene evidence and other sources. See Federal Bureau of Investigation, National DNA Index System Statistics, available at http://www.fbi.gov/hq/lab/codis/clickmap.htm (last visited July 11, 2007).

CODIS is a valuable law enforcement tool. It may be used to match evidence found at one crime scene with evidence found at another crime scene, revealing a common perpetrator. It also may be used to match evidence from the scene of a crime to a particular offender's profile. These attributes allow the FBI to investigate crimes more efficiently and more accurately, both by identifying offenders and by eliminating innocent suspects. The FBI credits CODIS with aiding more than 49,466 investigations nationally. See Federal Bureau of Investigations, Investigations Aided, http://www.fbi.gov/hq/lab/codis/aidedmap.htm (hereinafter "Investigations Aided") (last visited July 11, 2007).

The DNA Act contains an array of statutory safeguards to foreclose the possibility of abuse. CODIS information generally may be used only "[by] criminal justice agencies for law enforcement identification purposes[,] . . . in judicial proceedings, if otherwise admissible pursuant to applicable statutes or rules[, and] for criminal defense purposes, [by] a defendant." 42 U.S.C. § 14132(b)(3). The DNA Act also provides for a fine of up to $250,000 or a year in prison for the unauthorized disclosure or use of a DNA sample or result. Id. § 14135e(c).

B. Factual and Procedural Background

In 1990, appellant Leo Weikert pled guilty in the Western District of Texas to one count of conspiracy to possess cocaine with the intent to distribute and was sentenced to a term of 120 months. He escaped from prison in 1994, and was apprehended in Massachusetts in 1999. He then pled guilty in the District of Massachusetts to one count of escape from custody, and, in January 2000, was sentenced to eight months of imprisonment, to be served consecutively with his previous term. He also was sentenced to twenty-four months of

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supervised release to follow his incarceration.3

Weikert was released from prison on December 10, 2004. The Probation Office notified him of its intent to take a blood sample in order to collect his DNA, and Weikert subsequently filed a motion for a preliminary injunction and requested a hearing. The government opposed the motion and filed a request to revoke Weikert's supervised release.

The district court granted the preliminary injunction. The court explained that, in analyzing the constitutionality of the DNA Act, the other circuits have split over whether to apply the general Fourth Amendment totality of the circumstances test or the special needs exception. It then held that the special needs exception was the appropriate test because "the special needs doctrine has evolved to be the proper form of analysis for searches without individualized suspicion." It explained that the special needs test first asks whether the statute serves a special need distinct from traditional law enforcement, and, if so, whether the government's need outweighs the intrusion on the individual's privacy interest. Applying that analysis, the court concluded that no special need existed because "[t]he government's immediate purpose in collecting DNA samples is to solve crimes, " which was not beyond the normal need for law enforcement.

Acknowledging that its conclusion that no special need existed was sufficient to find the search unreasonable under the Fourth Amendment, the court nevertheless continued with its analysis. Even if such a special need existed, the court held, the individual's privacy interests would outweigh the government's interest in obtaining the information. The court found the government's interest in creating and using the database to solve crimes "substantial, given the success the government has had in using DNA samples to assist in investigations." However, this substantial interest was outweighed by "the intrusion into an individual's personal identity through the analysis of the blood . . . not to mention the danger of a later publicizing of the information gleaned from the sample."

Finally, the district court found that the other preliminary injunction factors - -the possibility of irreparable injury, the balance of harms, and the public interest - -weighed in Weikert's favor. Thus, the court granted the injunction. The government now appeals from that decision.


Under 28 U.S.C. § 1292(a)(1), we have jurisdiction to hear an interlocutory appeal...

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