U.S. v. Amerson

Decision Date04 April 2007
Docket NumberDocket No. 05-1063-cr.,Docket No. 05-1423-cr.
Citation483 F.3d 73
PartiesUNITED STATES of America, Appellee, v. Karen H. AMERSON, Defendant-Appellant. United States of America, Appellee, v. Julius Graves, Defendant-Appellant.
CourtU.S. Court of Appeals — Second Circuit

Timothy W. Hoover, Federal Public Defender's Office, Western District of New York, Buffalo, N.Y., for Defendants-Appellants Amerson and Graves.

Stephan J. Baczynski, Assistant United States Attorney, for Kathleen M. Mehltretter, Acting United States Attorney, Western District of New York, Buffalo, N.Y., for Appellee.

Before: CALABRESI, KATZMANN, and B.D. PARKER, Circuit Judges.

CALABRESI, Circuit Judge:

The Justice For All Act of 2004, Pub.L. No. 108-405, 118 Stat. 2260 ("the 2004 DNA Act" or "DNA Act" or "the Act"), requires federal offenders convicted of "[a]ny felony" to supply a sample of their DNA for analysis and storage in the Combined DNA Index System ("CODIS"), a national database administered by the Federal Bureau of Investigation ("FBI") and the Bureau of Prisons. We have twice approved of similar, although more narrowly drafted, state DNA indexing statutes. See Nicholas v. Goord, 430 F.3d 652, 669 (2d Cir.2005) (validating New York's DNA indexing statute); Roe v. Marcotte, 193 F.3d 72, 77 (2d Cir.1999) (holding constitutional Connecticut's DNA indexing statute). In doing so we joined the unanimous results reached by our sister circuits which have considered earlier versions of the DNA Act and corresponding state statutes. See generally Nicholas, 430 F.3d at 658-59 (collecting cases). We revisit the issue here to consider whether the 2004 DNA Act violates the Fourth Amendment when applied to individuals convicted of nonviolent crimes who were sentenced only to probation.1 We conclude that it does not.


Beginning in 1994, Congress instructed the FBI to establish and maintain an index of DNA samples from convicted criminals, crime scenes, and unidentified human remains. See Violent Crime Control and Law Enforcement Act of 1994, Pub.L. No. 103-322, 108 Stat. 1796 (1994). In December 2000, Congress enacted the first federal statute affirmatively directing convicted felons to submit DNA samples to the national database. Under the DNA Analysis Backlog Elimination Act of 2000 ("the 2000 DNA Act"), Pub.L. No. 106-546, 114 Stat. 2726 (2000) (codified as amended at 42 U.S.C. § 14135a (2000)), individuals convicted of a "qualifying Federal offense" must provide a "tissue, fluid, or other bodily sample" for analysis. See 42 U.S.C. §§ 14135a(a)(1), (c)(1). After a sample is collected, unique identifying information is obtained for each felon by decoding sequences of "junk DNA," which were "purposely selected because they are not associated with any known physical or medical characteristics." H.R.Rep. No. 106-900(I) (2000), 2000 WL 1420163, at * 27. The DNA profiles are then loaded into CODIS, a national database that also contains profiles generated by state DNA collection programs, as well as DNA samples obtained from the scenes of unsolved crimes. See 42 U.S.C. § § 14132(a)-(b). A convicted felon's failure to cooperate constitutes a class A misdemeanor and may be punished by up to one year in prison and a fine of as much as $100,000. See 42 U.S.C. § 14135a(a)(5); 18 U.S.C. §§ 3571, 3581.

The contents of the countrywide database—e.g., the DNA profiles derived from analyzing individuals' tissue samples—may be disclosed only for purposes specified by the DNA Act. Such disclosure is permitted:

(A) to criminal justice agencies for law enforcement identification purposes;

(B) in judicial proceedings, if otherwise admissible pursuant to applicable statutes or rules; and

(C) for criminal defense purposes, to a defendant, who shall have access to samples and analyses performed in connection with the case in which such defendant is charged.

42 U.S.C. § 14133(b)(1).2 Conversely, the Act proscribes unauthorized disclosures, imposing penalties of up to one year in prison and a fine of as much as $250,000. See 42 U.S.C. § 14135e(c). Moreover, it provides for the expungement of an individual's DNA information if the felony conviction is reversed or dismissed. See 42 U.S.C. § 14132(d).

The federal statute also fixes which felons are required to submit a DNA sample. Originally, the list of qualifying federal offenses was limited to: (a) murder, voluntary manslaughter, or other offense relating to homicide; (b) an offense relating to sexual abuse, to sexual exploitation or other abuse of children, or to transportation for illegal sexual activity; (c) an offense relating to peonage and slavery; (d) kidnaping; (e) an offense involving robbery or burglary; (f) any violation of 18 U.S.C. § 1153, which concerns offenses committed "within the Indian Country" involving murder, manslaughter, kidnaping, maiming, a felony offense relating to sexual abuse, incest, arson, burglary, or robbery; and (g) any attempt or conspiracy to commit any of the above offenses. See 2000 DNA Act, Pub.L. No. 106-546 (originally codified at 42 U.S.C. § 14135a(d)). In 2001, as part of the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act of 2001, Pub.L. No. 107-56, 115 Stat. 272, Congress extended the definition of qualifying federal offenses to include crimes involving terrorism and crimes of violence. See Pub.L. No. 107-56 § 503.

This amended list of qualifying offenses was again revised in 2004. The 2004 DNA Act provides that "[a]ny felony" constitutes a qualifying federal offense. See 42 U.S.C. § 14135a(d)(1). As a result of the change, persons convicted of crimes that are neither violent nor sexual in nature are also required to deposit a DNA sample for analysis and storage.

Appellants in these consolidated cases are two such individuals. On November 2, 2004, Appellant Karen Amerson pleaded guilty to one count of bank larceny in violation of 18 U.S.C. § 2113(b). She had been caught redirecting over a period of years a total of approximately $13,500 from the federally-insured bank for which she worked. Consistent with a plea agreement reached by the parties, the District Court for the Western District of New York (Skretny, J.) sentenced Amerson to three years of probation. In addition, the District Court, over Amerson's objection, insisted that she supply a DNA sample under the newly-amended federal law.

Similarly, Appellant Julius Graves pleaded guilty, on October 4, 2004, to one count of aiding and abetting wire fraud in violation of 18 U.S.C. §§ 2, 1343. Graves had knowingly allowed a neighbor to ship to his home merchandise purchased with stolen credit card information. The District Court (Skretny, J.) sentenced Graves to two years probation and, over his objection, instructed him to provide a DNA sample as well.

In both instances, the District Court concluded that the Fourth Amendment presented no obstacle to the 2004 DNA Act's requirement that all felons submit a DNA sample for testing and storage. Appellants filed timely appeals, and we consolidated the cases to consider the common Fourth Amendment challenge asserted by Appellants.


The Fourth Amendment prohibits unreasonable searches and seizures. It is settled law that DNA indexing statutes, because they authorize both a physical intrusion to obtain a tissue sample and a chemical analysis to obtain private physiological information about a person, are subject to the strictures of the Fourth Amendment. See Nicholas, 430 F.3d at 656 n. 5, 658 ("[T]he extraction and analysis of plaintiffs' blood for DNA-indexing purposes constitute[s] a search implicating the Fourth Amendment."); see also Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 616, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989); Cupp v. Murphy, 412 U.S. 291, 295, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973) (explaining that a search that goes "beyond mere physical characteristics . . . constantly exposed to the public ... constitute[s] the type of severe, though brief, intrusion upon cherished personal security that is subject to constitutional scrutiny" (internal citation and quotation marks omitted)).

Moreover, suspicionless searches— such as those permitted by the 2004 DNA Act—are highly disfavored since they dispense with the traditional rule that a search, if it is to be deemed reasonable, must be either supported by a warrant based on probable cause, or justified by evidence establishing individualized suspicion of criminal misconduct. See City of Indianapolis v. Edmond, 531 U.S. 32, 37, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000) ("A search or seizure is ordinarily unreasonable in the absence of individualized suspicion of wrongdoing.").

Nonetheless, courts have nearly unanimously upheld the suspicionless-search programs created by state and federal DNA indexing laws.3 In so doing, federal courts have adopted two somewhat different approaches. On the one hand, the Third, Fourth, Fifth, Ninth, and Eleventh Circuits have relied on a balancing test that accounts for the totality of the circumstances. See United States v. Sczubelek, 402 F.3d 175, 184 (3d Cir.2005); Jones v. Murray, 962 F.2d 302, 307-08 (4th Cir. 1992); Groceman v. U.S. Dep't of Justice, 354 F.3d 411, 413-14 (5th Cir.2004); United States v. Kincade, 379 F.3d 813, 832 (9th Cir.2004) (en banc); Padgett v. Donald, 401 F.3d 1273, 1280 (11th Cir.2005). This Court and the Seventh Circuit, on the other hand, have applied the "special-needs" test to uphold the constitutionality of earlier DNA indexing laws. See Nicholas, 430 F.3d at 667; Green v. Berge, 354 F.3d 675, 679 (7th Cir.2004); Marcotte, 193 F.3d at 77.4

We agree with appellants that the special-needs test remains the proper framework, in this Circuit, for analyzing the constitutionality of a DNA indexing statute when applied to probationers. We first adopted the special-needs doctrine as the mode of...

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