652 F.3d 387 (3rd Cir. 2011), 09-4718, United States v. Mitchell

Docket Nº:09-4718.
Citation:652 F.3d 387
Party Name:UNITED STATES of America, Appellant v. Ruben MITCHELL.
Attorney:Laura S. Irwin, Esq., (Argued), Office of the United States Attorney, Pittsburgh, PA, for Appellant. John A. Knorr, Esq., Pittsburgh, PA, for Appellee. Elisa A. Long, Esq., (Argued), Lisa B. Freeland, Esq., Office of the Federal Public Defender, Pittsburgh, PA, for Amicus Curiae Office of the Fed...
Judge Panel:Before: McKEE, Chief Judge, SLOVITER, SCIRICA, RENDELL, BARRY, AMBRO, FUENTES, SMITH, FISHER, CHAGARES, JORDAN, HARDIMAN, GREENAWAY, JR., and VANASKIE, Circuit Judges. FUENTES, Circuit Judge, with whom Circuit Judges SLOVITER, SCIRICA, SMITH, FISHER, CHAGARES, JORDAN, and HARDIMAN, join, and AMBR...
Case Date:July 25, 2011
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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652 F.3d 387 (3rd Cir. 2011)

UNITED STATES of America, Appellant

v.

Ruben MITCHELL.

No. 09-4718.

United States Court of Appeals, Third Circuit.

July 25, 2011

Argued Feb. 23, 2011.

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Laura S. Irwin, Esq., (Argued), Office of the United States Attorney, Pittsburgh, PA, for Appellant.

John A. Knorr, Esq., Pittsburgh, PA, for Appellee.

Elisa A. Long, Esq., (Argued), Lisa B. Freeland, Esq., Office of the Federal Public Defender, Pittsburgh, PA, for Amicus Curiae Office of the Federal Public Defender— Appellee.

Will W. Sachse, Esq., Dechert LLP, Philadelphia, PA, Witold J. Walczak, Esq., Legal Director, ACLU of Pennsylvania, Pittsburgh, PA, for Amicus Curiae American Civil Liberties Union— Appellee.

Kevin S. Bankston, Esq., Electronic Frontier Foundation, San Francisco, CA, for Amicus Curiae Electronic Frontier Foundation— Appellee.

Jonathan S. Franklin, Esq., Tillman J. Breckenridge, Esq., Mark T. Emery, Esq., Fulbright & Jaworski, L.L.P., Washington, D.C., for Amicus Curiae DNA Saves— Appellant.

Before: McKEE, Chief Judge, SLOVITER, SCIRICA, RENDELL, BARRY, AMBRO, FUENTES, SMITH, FISHER, CHAGARES, JORDAN, HARDIMAN, GREENAWAY, JR., and VANASKIE, Circuit Judges.

OPINION

FUENTES, Circuit Judge, with whom Circuit Judges SLOVITER, SCIRICA, SMITH, FISHER, CHAGARES, JORDAN, and HARDIMAN, join, and AMBRO joins as to Part III only.

Ruben Mitchell was indicted on one count of attempted possession with intent to distribute cocaine. Following Mitchell's indictment, arrest, and detention, the Government sought to collect a DNA sample. The Government relied on 42 U.S.C. § 14135a(a)(1)(A), which permits the collection of DNA samples from " individuals who are arrested, facing charges, or convicted." Mitchell objected, arguing that the statute violated the Fourth Amendment. Agreeing with Mitchell, the District Court concluded that the statute was unconstitutional and prohibited the Government from taking a DNA sample from Mitchell prior to conviction.

As a threshold matter, we address whether we possess appellate jurisdiction over this interlocutory appeal by the Government. We conclude that this appeal falls within the narrow class of orders immediately appealable under the collateral order doctrine enunciated in

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Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Turning to the merits, we apply a " totality of the circumstances" test, balancing the intrusion on Mitchell's privacy against the Government's interest in the collection and testing of his DNA. United States v. Knights, 534 U.S. 112, 118-19, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001). As arrestees have a diminished expectation of privacy in their identities, and DNA collection from arrestees serves important law enforcement interests, we conclude that such collection is reasonable and does not violate the Fourth Amendment. Accordingly, we will reverse.

I.

Mitchell was indicted on a single count of attempted possession with intent to distribute five or more kilograms of cocaine, in violation of 21 U.S.C. § 846. Thereafter, he was arrested and placed in pretrial detention. At Mitchell's initial appearance before a Magistrate Judge, the Government sought to collect a sample of Mitchell's DNA 1 pursuant to 42 U.S.C. § 14135a(a)(1)(A)2 and its implementing regulation, 28 C.F.R. § 28.12. The statute, as amended in 2006, permits the collection of DNA samples from " individuals who are arrested, facing charges, or convicted." 42 U.S.C. § 14135a(a)(1)(A). Mitchell objected, arguing that the statute violated the Fourth Amendment; the Magistrate Judge ordered briefing and stayed the collection of Mitchell's DNA pending resolution by the District Court. Prior to the resolution of the DNA issue, the District Court held a detention hearing and detained Mitchell pending trial.

In a Memorandum Opinion, the District Court held that § 14135a(a)(1)(A) and its implementing regulation violate the Fourth Amendment insofar as they permit the warrantless collection of DNA from individuals who have not been convicted of a crime. Applying a " totality of the circumstances" analysis, the District Court assessed " ‘ on the one hand, the degree to which [the DNA collection] intrudes upon an individual's privacy and, on the other, the degree to which it is needed for the promotion of legitimate governmental interests.’ " Samson v. California, 547 U.S. 843, 848, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006) (quoting Knights, 534 U.S. at 118-19, 122 S.Ct. 587). Considering Mitchell's status as an arrestee and a pretrial detainee, the District Court held that " Mitchell has a diminished expectation of privacy in his identity" and thus may be subjected to routine booking procedures such as fingerprinting. United States v. Mitchell, 681 F.Supp.2d 597, 608 (W.D.Pa.2009). Nevertheless, the District Court declined to equate " the fingerprinting process and the resulting identification information obtained therefrom with DNA profiling" given " the complex, comprehensive, inherently private information contained in a DNA sample." Id. " The extraction of DNA," the District Court reasoned, " is much more than a mere progression [from] taking fingerprints and photographs[; ] it represents a quantum leap that is entirely unnecessary for identification purposes." Id. at 608-09. As a result, the District Court concluded that while taking the DNA sample " may not be unreasonably intrusive, the search of the sample is quite intrusive, severely affecting Mitchell's expectation

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of privacy in his most intimate matters." Id. at 609.

With respect to the Government's interests, the District Court determined that there was no compelling need to take Mitchell's DNA sample for identification purposes. While collecting DNA also serves investigative purposes, " there [was] no exigency that support[ed] the collection of DNA from an arrestee or pretrial detainee" as opposed to waiting until after a conviction or obtaining a proper search warrant. Id. at 610. Accordingly, weighing Mitchell's privacy interests against the Government's legitimate interests, the District Court concluded that the universal collection of DNA samples from arrestees and pretrial detainees was unreasonable and thus violated the Fourth Amendment. In the accompanying Order, the District Court prohibited the Government from collecting a DNA sample from Mitchell " until such time as he has been convicted of the offense set forth in the indictment." Id. at 611. The Government sought reconsideration, which was denied.

The Government timely appealed and expressed an interest in expediting the appeal. We ordered the parties to address both the request to expedite and the jurisdictional basis for the appeal in their motion and response.3 Following the parties' submissions, we granted the Government's request to expedite and directed the parties to address the issue of our subject matter jurisdiction in their merits briefs. A three-judge panel heard oral argument; however, while the case was under consideration, it was determined that the case should be heard en banc pursuant to Third Circuit Internal Operating Procedure 9.4.1.

This appeal presents two issues: (1) whether the District Court's decision is immediately appealable under the collateral order doctrine, and, if so, (2) whether the collection of DNA from arrestees and pretrial detainees violates the Fourth Amendment.

II.

The District Court exercised jurisdiction pursuant to 18 U.S.C. § 3231. Mitchell contests our jurisdiction. " We necessarily exercise de novo review over an argument alleging a lack of appellate jurisdiction." 4 Reilly v. City of Atlantic City, 532 F.3d 216, 223 (3d Cir.2008). Our standard of review of the District Court's resolution of Mitchell's Fourth Amendment claim is likewise de novo. United States v. Sczubelek, 402 F.3d 175, 178 (3d Cir.2005).

III.

Mitchell asserts that we cannot exercise jurisdiction over the present appeal by the Government. He argues first that the Government lacks statutory authority under the Criminal Appeals Act, 18 U.S.C. § 3731, to appeal from the District Court's adverse ruling in this criminal case. Second, he contends that this appeal does not fall within the collateral order doctrine. We address each of Mitchell's arguments in turn.

A. Criminal Appeals Act

Mitchell correctly cites the well-established rule that " ‘ an appeal by the

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prosecution in a criminal case is not favored and must be based upon express statutory authority.’ " United States v. Farnsworth, 456 F.3d 394, 399 (3d Cir.2006) (quoting United States v. Gilchrist, 215 F.3d 333, 335-36 (3d Cir.2000)). In general, the United States may appeal in a criminal case only as permitted by the Criminal Appeals Act, 18 U.S.C. § 3731, which limits appeals to cases involving the dismissal of charges, suppression or exclusion of evidence, return of seized property, or release of a defendant.5

Neither party argues that the present appeal falls into one of the categories of orders appealable pursuant to § 3731. Mitchell contends that this alone resolves the question and strips us of jurisdiction. The Supreme Court has concluded to the contrary, however, holding that in certain limited instances, " orders relating to a criminal case may be found to possess sufficient independence from the main course of the prosecution to warrant treatment as plenary orders, and thus be appealable on the authority of 28 U.S.C. § 1291 without regard to the limitations of 18 U.S.C. § 3731." Carroll v. United States, 354 U.S. 394, 403, 77 S.Ct. 1332, 1 L.Ed.2d 1442 (1957). In other words, while the...

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