Banks v. U.S.

• Decision Date: 18 June 2007
• Docket Number: No. 06-5068.,06-5068.
• Citation: 490 F.3d 1178
• Parties: Richard M. BANKS; Mary Lafficer Doyle; Stanley Allen Acuff; Melanie Pool Alphin; and Lisa Renee Bell, Plaintiffs-Appellants, v. UNITED STATES; Leonidas Ralph Mecham, Director, Administrative Office of the United States Courts; Alberto R. Gonzales, Attorney General; Robert S. Mueller, III, Director, Federal Bureau of Investigation; David E. O'Meilia, United States Attorney; Brad Stewart, Chief Probation Officer, United States Probation Office, Defendants-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

490 F.3d 1178

Richard M. BANKS; Mary Lafficer Doyle; Stanley Allen Acuff; Melanie Pool Alphin; and Lisa Renee Bell, Plaintiffs-Appellants, v. UNITED STATES; Leonidas Ralph Mecham, Director, Administrative Office of the United States Courts; Alberto R. Gonzales, Attorney General; Robert S. Mueller, III, Director, Federal Bureau of Investigation; David

E. O'Meilia, United States Attorney; Brad Stewart, Chief Probation Officer, United States Probation Office, Defendants-Appellees.

No. 06-5068.

United States Court of Appeals, Tenth Circuit.

June 18, 2007.

Robert Ridenour, Assistant Federal Public Defender (Paul D. Brunton, Federal Public Defender, and Barry L. Derryberry, Assistant Federal Public Defender, with him on the brief), Tulsa, Oklahoma, for Plaintiffs-Appellants.

Loretta Finience Radford, Assistant United States Attorney (David E. O'Meilia, United States Attorney, and Kevin C. Leitch, Assistant United States Attorney, on the brief), Tulsa, Oklahoma, for Defendants-Appellees.

Before BRISCOE, HOLLOWAY, and O'BRIEN, Circuit Judges.

HOLLOWAY, Circuit Judge.

Government collection of deoxyribonucleic acid ("DNA") samples has caused considerable controversy. From State proposals to expand DNA extraction to misdemeanants, to federal DNA statutes designed to assist police in solving crimes, detractors allude to a police state reminiscent of George Orwell's dystopia portrayed in 1984. In this case, the challenged federal statute, The DNA Analysis Backlog Elimination Act of 2000,¹ requires convicted felons to submit a DNA sample for inclusion in a national database. The database is used for law enforcement identification purposes; in judicial proceedings if otherwise admissible; for criminal-defense purposes; and for a population-statistic database for identification research, or for quality-control purposes, if personally-identifiable information is removed.

We must decide whether the Fourth Amendment permits compulsory DNA testing of the Plaintiffs, non-violent felony offenders subject to the Act, in the absence of individualized suspicion that they have committed additional crimes. Applying a totality-of-the-circumstances test, we hold that the Act is constitutional because the Government's interest in extracting DNA from the Plaintiffs outweighs their interests in avoiding the intrusions upon their privacy.

I. BACKGROUND

A. The DNA Analysis Backlog Elimination Act

DNA is a double-helix shaped nucleic acid held together by hydrogen bonds and composed of base pairings of Adenine and Thymine and Cytosine and Guanine, which repeat along the double-helix at different regions (referred to as short-tandem-repeat loci, or STR loci). In re Fisher, 421 F.3d 1365, 1367 (Fed.Cir.2005); United States v. Kincade, 379 F.3d 813, 818-19 (9th Cir.2004). When analyzed, these STR loci reveal the presence of various alleles, genic variants responsible for producing a particular trait, that represent themselves differently in virtually everyone except identical twins, who share the same DNA. See Kincade, 379 F.3d at 818 n. 5, 818-19.

To obtain and profile this information, DNA is extracted from a cell, and the short tandem repeats are copied millions of times. After separating and marking the short-tandem-repeat sites, an analyst can determine the number of repeats at each of the loci. See id. at 818-19. (The FBI generates a 13-loci DNA profile.) Id. Since there is only an infinitesimal chance that two people's DNA will be identical in these variable regions, analysts can compare DNA profiles and exclude distinguishable suspects from suspicion.

Given the power of DNA as an identification tool, Congress passed the DNA Analysis Backlog Elimination Act of 2000 requiring those convicted of a "qualifying Federal offense" to provide "a tissue, fluid, or other bodily sample . . . on which . . . [an analysis of that sample's] deoxyribonucleic acid . . ." can be carried out. 42 U.S.C. §§ 14135a(c)(1)-(2) & (a)(1)-(2). The Bureau of Prisons collects the DNA samples from qualified offenders who are in custody, and the federal probation office collects the DNA samples from qualified offenders who are on release, parole, or probation. Id. at §§ 14135a(a)(1)-(2).

In the Act's original form, qualifying federal offenses were primarily limited to violent crimes, such as murder, voluntary manslaughter, and sexual abuse. But in 2004, Congress passed the Justice For All Act of 2004, Pub.L. No. 108-405, 118 Stat. 2260 (Oct. 30, 2004), which expanded the definition of "qualified Federal offense" to include "[a]ny felony." 42 U.S.C. § 14135a(d)(1) (the Act as amended by 118 Stat. 2260). Providing a DNA sample is an explicit condition of qualified offenders' supervised release. 18 U.S.C. § 3583(d). Refusing to submit a DNA sample under the Act is a class A misdemeanor, punishable under Title 18 of the United States Code, 42 U.S.C § 14135a(a)(5), and therefore also a breach of the supervised-release conditions, see 18 U.S.C. §§ 3563(a)(1) & 3583(d) (stating that those on probation or supervised release shall not commit an additional federal, state, or local offense).

After the Attorney General, the Director of the Bureau of Prisons, or the probation office collects an offender's DNA sample, the collecting party provides each DNA sample to the Director of the Federal Bureau of Investigation (FBI). 42 U.S.C. § 14135a(b). The FBI Director then analyzes the DNA sample and includes the results in the Combined DNA Index System (CODIS), an FBI-created, national database that catalogues DNA profiles from numerous sources, including federal and state convicts, persons who have been charged in an indictment or information with a crime, DNA samples recovered from crime scenes, and from relatives of missing persons. 42 U.S.C. § 14132(a). CODIS "allows State and local 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." H.R. Rep. 106-900(I), at 8 (2000), 2000 U.S.Code Cong. & Admin.News at pp. 2323, 2324.

Once the Director uploads a DNA profile into CODIS, the profile may be disclosed only to criminal-justice agencies for law enforcement identification purposes; in judicial proceedings if otherwise admissible; to a criminal defendant for criminal-defense purposes; and for a population-statistic database for identification research and protocol-development purposes, or for quality-control purposes, if personally-identifiable information is removed. 42 U.S.C. §§ 14132(b)(3)(A)-(D). See 42 U.S.C. § 14135e(b) (stating that DNA profiles may be used only for specified purposes). Those who violate these provisions might have their access to CODIS cancelled, and the Act criminally penalizes those who disclose a DNA profile without certain authorization. 42 U.S.C. § 14132(c) (cancellation provision); 42 U.S.C. § 14135e(c) (prescribing up to a $250,000 fine and one-year imprisonment for each instance of disclosure).

In addition to these restrictions, the Act is also sensitive to post-conviction proceedings: a felon's DNA information must be expunged from the system if the felon's conviction is reversed or dismissed. 42 U.S.C. § 14132(d).

B. Procedural History

All of the Plaintiffs were convicted of non-violent felonies. Richard Banks pleaded guilty to one count of bank fraud and was sentenced to 35 months' imprisonment and 5 years' supervised release. Mary Doyle pleaded guilty to one count of theft of government funds and was sentenced to five years' probation. Stanley Acuff pleaded guilty to one count of wire fraud and was sentenced to 16 months' imprisonment and 3 years' supervised release. Acuff committed more crimes while on supervised release—false impersonation and knowingly concealing stolen property— so the district court revoked his term of supervised release and sentenced him to 12 months' imprisonment and 2 years' supervised release. Melanie Alphin pleaded guilty to misprision of a felony, which related to her failure to report another's possession with intent to distribute methamphetamine. Alphin was sentenced to five years' probation. Lisa Bell pleaded guilty to one count of using a false social security number and was sentenced to 14 months' imprisonment and 3 years' supervised release. While on supervised release, Bell committed more crimes—false statement and false use of a social security number—so, as with Acuff, the court revoked Bell's term of supervised release and sentenced her to 12 months' and 1 day imprisonment and 23 months' supervised release.

The Government requested a DNA sample from each Plaintiff, scheduling May 17, 2005, as the collection day, but they all refused to provide a sample and instead filed this lawsuit requesting declaratory relief and a permanent injunction enjoining the Government from forcing them to comply with the Act.

After converting the Plaintiffs' action into a civil case, the district court, sitting en banc, subjected the Act to scrutiny under the Fourth Amendment's special-needs test and the Fourth Amendment's totality-of-the-circumstances test. See Banks v. Gonzales, 415 F.Supp.2d 1248 (N.D.Okla.2006). Based on precedent and the parties' briefs and oral arguments, the court held in an impressive and convincing Opinion and Order that the Act passed constitutional muster under the Fourth Amendment. It therefore granted the Government's motion to dismiss and denied the Plaintiffs' request for a permanent injunction and declaratory relief.

Under the totality-of-the-circumstances test, the district court balanced the degree to which the Act interferes with the Plaintiffs' privacy interests against the degree to which profiling the Plaintiffs' DNA promotes a legitimate governmental interest. After noting that parolees, supervises, and probationers, such as Plaintiffs, have a significantly diminished expectation of privacy, the court concluded...