Landry v. Attorney General
| Decision Date | 13 April 1999 |
| Citation | 429 Mass. 336,709 N.E.2d 1085 |
| Court | United States State Supreme Judicial Court of Massachusetts Supreme Court |
| Parties | Donald E. LANDRY & others 1 v. ATTORNEY GENERAL & others 2 ; William Bates, Intervener. Supreme Judicial Court of Massachusetts, Middlesex |
Rosemary S. Gale, Assistant Attorney General (Pamela L. Hunt, Assistant Attorney General, with her) for the defendants.
Benjamin H. Keehn, Committee for Public Counsel Services (John Reinstein with him) for the plaintiffs.
Sandra F. Bloomenthal & Robert T. Bloomenthal, East Sandwich, for the intervener, were present but did not argue.
The following submitted briefs for amici curiae:
Tracey Maclin & John F. Palmer, Boston, for Massachusetts Association of Criminal Defense Lawyers.
Toni G. Wolfman, Colin J. Zick, & Nancy N. Serrano, Boston, for The Council for Responsible Genetics.
Charles J. Ogletree, Jr., of the District of Columbia, Emily Hughes, of Iowa, Mary Prosser, & Amy R. Goldstein for Criminal Justice Institute at Harvard Law School & another.
Josephine Ross, Boylston, for Owen M. Kupperschmid Holocaust Human Rights Project of Boston College Law School & another.
Present: WILKINS, C.J., ABRAMS, LYNCH, GREANEY, FRIED, MARSHALL, & IRELAND, JJ.
In these consolidated appeals, 3 we are concerned with challenges made by the plaintiffs to the validity of the deoxyribonucleic acid (DNA) database statute, St.1997, c. 106, codified for the most part at G.L. c. 22E, §§ 1-15(Act). A judge in the Superior Court concluded that the involuntary taking of blood samples from the plaintiffs, in accordance with the directives of the Act, violates both the Fourth Amendment to the United States Constitution and art. 14 of the Declaration of Rights of the Massachusetts Constitution. Based on this conclusion, the judge granted the plaintiffs a preliminary injunction which enjoined the defendants from enforcing any aspect of the Act. We consider the grounds relied on by the judge, and an additional challenge made by the plaintiffs (which was not ruled on by the judge) that the provision in § 4 (a ) of the Act for the use of reasonable force to obtain a DNA sample when a convicted person refuses to submit to its collection must be delineated by regulation. We conclude that the preliminary injunction cannot be justified on the grounds relied on by the judge, and that it also cannot be supported on the basis that the reasonable force provision is unlawful in the absence of regulations on the matter. Accordingly, we vacate the preliminary injunction.
1. The following background is necessary to an understanding of the issues.
(a) The Act. All fifty States have enacted statutes creating a DNA database. By St.1997, c. 106, the Act was adopted in Massachusetts, and codified as G.L. c. 22E, §§ 1-15. In creating the Act, the Legislature stated its purpose as follows: St.1997, c. 106, § 1. The Legislature went on to express its "find[ing] that the collection and analysis of DNA samples is an integral part of the investigation and prosecution of criminal offenses and that such technology is an important tool in the defense of individuals charged with criminal offenses in the commonwealth." St.1997, c. 106, § 2.
The Act provides as follows. Any person convicted of the perpetration of any of thirty-three enumerated crimes (or an attempt or conspiracy to commit any of them) must submit a DNA sample to the State crime laboratory. G.L. c. 22E, § 3. The Act further requires submission of a DNA sample from any person currently incarcerated, on probation, or on parole as the result of a conviction or judicial determination resulting from a charge of any of the listed offenses, notwithstanding the date of such conviction or judicial determination. G.L. c. 22E, § 3. St. 1997, c. 106, § 8. If a conviction is subsequently reversed and then dismissed, relevant DNA records may be expunged by court order. G.L. c. 22E, § 15. Failure to furnish a DNA sample is punishable by a $1,000 fine or up to six months' imprisonment. G.L. c. 22E, § 11. Law enforcement officers and correction personnel are authorized to use "reasonable force" to assist in collecting the DNA samples "in cases where an individual refuses to submit to such collection as required under [the Act]." G.L. c. 22E, § 4 (a ).
A "DNA sample" is defined by the statute as "biological evidence of any nature that is utilized to conduct DNA analysis." G.L. c. 22E, § 1. The Act provides that, once a sample is collected, through a process established by way of detailed regulations, it is forwarded to the director of the State crime laboratory within the Department of the State police (director) for analysis. G.L. c. 22E, § 6. "DNA analysis" entails undertaking "DNA typing tests" on the submitted DNA samples "that generate numerical identification information." G.L. c. 22E, § 1. The result is a "DNA record," which contains the numerical identification information derived from the samples by the analysis. G.L. c. 22E, § 1. Once a sample has been processed, the DNA record becomes a part of the State DNA database, G.L. c. 22E, § 3, and will also be forwarded to the Federal Bureau of Investigation (FBI) for storage and maintenance in CODIS, or "combined DNA index system," the "[FBI]'s national DNA identification index system which facilitates the storage and exchange of DNA records submitted by state and local criminal justice and law enforcement agencies." G.L. c. 22E, § 1. See G.L. c. 22E, § 10 (b ).
The Act limits access to, and use of, the information obtained from DNA samples. G.L. c. 22E, §§ 6-10. DNA records are confidential, are not included in the criminal offender record information system, and may be disclosed only as authorized by the Act. G.L. c. 22E, § 9. The Act states that the director is to forward a DNA record to local police departments, to the Department of Correction, to a sheriff's department, to the parole board, or to prosecuting officers on written or electronic request. G.L. c. 22E, § 10(a ). It further mandates disclosure of DNA records to "local, state and federal criminal justice and law enforcement agencies, including forensic laboratories serving such agencies, for identification purposes in order to further official criminal investigations or prosecutions." G.L. c. 22E, § 10(b )(1). The Act also requires that DNA records be furnished to the FBI for inclusion in CODIS, G.L. c. 22E, § 10(b )(2); that defendants who are charged with crimes as a result of a DNA database search be provided with a copy of their own DNA record, G.L. c. 22E, § 10(b )(3); and that DNA records be made available as necessary to obtain Federal funding. G.L. c. 22E, § 10(c ).
The Act allows the director, at his discretion, to make DNA records, after all personal identifying information is removed, available "to authorized persons or organizations," for the limited purpose of "advancing DNA analysis methods and supporting statistical interpretation of DNA analysis, including development of population databases." G.L. c. 22E, § 10(d )(1). DNA records may also be supplied for identifying victims of mass disasters, identifying missing persons, and for "advancing other humanitarian purposes." G.L. c. 22E, § 10(d )(2)-(4).
(b) Implementing regulations. In keeping with the Act's provisions, the director has promulgated two sets of emergency regulations concerning the collection, submission, receipt, identification, storage, and disposal of DNA samples, see 515 Code Mass. Regs. §§ 1.01-1.06 (1998); and the testing and analysis, quality assurance, computerized storage, retrieval, and dissemination of the DNA database, see 515 Code Mass. Regs. §§ 2.01-2.16 (1998).
(i) The first set of regulations contains provisions that identify those individuals who may collect DNA samples, details the materials and procedures that those individuals must use to collect the samples and ensure that they are not contaminated, and establishes identification and record-keeping procedures the collectors must utilize during the collection process. See 515 Code Mass. Regs. § 1.04. Eight drops of blood are collected by a qualified person following a finger prick with a lancet provided in a special testing kit. See 515 Code Mass. Regs. § 1.04(3)(g), (j), (k). In addition, the regulations set forth procedures to be used by evidence technicians (that is, the individuals authorized to accept the DNA samples at the State crime laboratory), to receive the samples and record the details necessary for proper identification. 515 Code Mass. Regs. §§ 1.03-1.05. The regulations also specify handling and storage procedures for the DNA samples and their accompanying collection and information cards. 515 Code Mass. Regs. § 1.05(2)-(3). All samples and collected information are to be "stored indefinitely in a secure storage area." 515 Code Mass. Regs. § 1.05(4).
(ii) The second set of regulations spells out the methods to be used to analyze DNA samples, and security measures to prevent unauthorized access to, or disclosure of, information in the DNA database. See 515 Code Mass. Regs. §§ 2.04-2.11. The regulations specify that the DNA database "shall be comprised of data generated from STR testing." 515 Code Mass. Regs. § 2.04(1). STR, or short tandem repeat testing, is "[a] form of testing which provides DNA profiles for loci which contain simple DNA unit repeats." 4 515 Code Mass. Regs. § 2.03. The regulations go on to outline...
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