U.S. v. Sczublek, CRIM.A.94-8-SLR.

• Decision Date: 02 April 2003
• Docket Number: No. CRIM.A.94-8-SLR.,CRIM.A.94-8-SLR.
• Citation: 255 F.Supp.2d 315
• Parties: UNITED STATES of America, Plaintiff, v. Paul SCZUBELEK, Defendant.
• Court: U.S. District Court — District of Delaware

Page 315

255 F.Supp.2d 315

UNITED STATES of America, Plaintiff, v. Paul SCZUBELEK, Defendant.

No. CRIM.A.94-8-SLR.

United States District Court, D. Delaware.

April 2, 2003.

Colm F. Connolly, United States Attorney, and Adam Safwat, Assistant United States Attorney, United States Attorney's Office, District of Delaware, Wilmington, Delaware. Counsel for Plaintiff.

Eleni Kousoulis, Esquire, Assistant Federal Public Defender, Federal Public Defender's Office, Wilmington, Delaware. Counsel for Defendant.

MEMORANDUM OPINION

SUE L. ROBINSON, Chief Judge.

I. INTRODUCTION

On June 17, 1994, a federal jury found defendant guilty on three counts of bank robbery pursuant to 18 U.S.C. § 2113(a) and one count of structuring cash transactions under 31 U.S.C. §§ 5324(3), 5322(a). (D.I.55) Defendant was sentenced to 87 months of imprisonment on the bank robbery convictions and 60 months on the cash transaction conviction, all to be served concurrently. (D.I.156) Defendant was ordered to serve a three-year term of supervised release upon release from imprisonment.¹ Defendant was released from prison in August 2000 and placed on home confinement. In October 2000, his three-year period of supervised release commenced. (D.I.188)

After serving approximately two years of supervised release, a United States probation officer notified defendant by telephone that he was scheduled for a DNA² collection on September 25, 2002, pursuant to the DNA Analysis Elimination Act, 42 U.S.C. §§ 14135-14135e (2001 Supp.).³ Defendant did not appear at this appointment asserting through his counsel that the DNA testing requirement is unconstitutional as applied to him. (D.I.206)

As a result, a petition for violation of a mandatory condition of supervised release was filed against defendant on October 1, 2002. (D.I.206) On October 15, 2002, the court ordered defendant to appear to answer the charges (D.I.206), and a hearing was scheduled for November 22, 2002. After the parties jointly requested pre-hearing briefing due to the complexity of the constitutional issues implicated, the court adjourned the revocation hearing. (D.I. 211) Both sides then submitted briefs (D.I. 214, 215, 216, 217, 220), and oral argument was conducted on February 11, 2003. The court has jurisdiction pursuant to 18 U.S.C. § 3231. See 18 U.S.C. § 3583(e)(3) (court's authority to revoke supervised release under certain circumstances). For the reasons that follow, the court finds that requiring defendant to submit to a DNA sampling does not violate his Fourth Amendment right against unreasonable searches and seizures.

II. BACKGROUND

In December 2000, the United States Congress enacted the DNA Analysis Backlog Elimination Act of 2000, 42 U.S.C. § 14135 (the "DNA Act"). The DNA Act⁴ requires United States probation offices to collect a DNA sample from each individual being supervised while on probation, parole or supervised release who has been convicted of a qualifying federal offense. 42 U.S.C. § 14135a(a)(2). A "DNA sample" is defined as "tissue, fluid or other bodily sample of an individual on which a DNA analysis can be carried out." 42 U.S.C. § 14135c. "Qualifying federal offenses" are violent crimes, including homicides, sex offenses, kidnaping, robbery⁵ and conspiracies to commit these offenses. 42 U.S.C. § 14135a(d). With the passage of the DNA Act, Congress amended the supervised release statute, 18 U.S.C. § 3583, to expressly require DNA collection: "[T]he court shall order, as an explicit condition of supervised release, that the defendant cooperate in the collection of a DNA sample from the defendant, if the collection of such a sample is authorized pursuant to the DNA [Act]."

The penalty for failure to cooperate in the collection of a DNA sample is a class C misdemeanor offense, punishable by up to one year in custody and a fine of up to $100,000. 42 U.S.C. § 14135a(a)(5). Failure to comply may also result in the filing of supervised release violation charges by a probation officer. The Probation Office is authorized to "use reasonable means to detain, restrain, and collect samples from a person who refuses to give a sample voluntarily." 42 U.S.C. § 14135a(a)(4)(A).

Once a sample is collected, the Probation Office sends the sample to the Federal Bureau of Investigation ("FBI") for entry into the Combined DNA Index System ("CODIS"), a national DNA database linking DNA evidence in a nationwide computer network. 42 U.S.C. § 14135a(b). "CDIS is a national index of DNA samples taken from convicted offenders, crime scenes and victims of crime, and unidentified human remains that `enables law enforcement officials to link DNA evidence found at a crime scene with a suspect whose DNA is already on file.'" United States v. Miles, 228 F.Supp.2d 1130, 1132 (E.D.Cal.2002) (internal citations omitted). The DNA Act permits disclosure of the DNA sample to criminal justice agencies for law enforcement identification in judicial proceedings and to a defendant for use in his criminal defense. 42 U.S.C. §§ 14135e(a)(b), 14132(b)(3).

The DNA Act restricts the use of information and criminalizes the knowing, unauthorized retention or disclosure of a DNA sample. 42 U.S.C. § 14135e(c). A person's DNA records can be expunged upon proof that a qualifying offense has been overturned or stricken. 42 U.S.C. § 14132(d).

The legislative history reveals that the impetus for the DNA Act was Congress' concern that the DNA data base was not sufficiently filled with samples from federal offenders.⁶ H.R.Rep. No. 106-900(1), 2000 WL 142016 at 11. Congress was cognizant that all fifty states require DNA collection from certain convicted persons, while the federal system did not contain a comparable requirement. See generally Robin Cheryl Miller, Annotation, Validity, Construction, and Operation of State DNA Database Statutes, 76 A.L.R. 5th 239 at § 2 (2000). "Congress passed the Act because of an urgent need to address the gap in coverage of the national DNA index that has left out federal offenders." United States v. Reynard, 220 F.Supp.2d 1142, 1146 (S.D.Cal.2002). The addition of DNA samples from qualifying federal offenders, therefore, would enable state and federal law enforcement to match these samples with crime scenes or other evidence in an effort to solve pending criminal investigations. Id.; 2002 WL 1420163 at 13-14; 146 Cong. Rec. SI 1647, 2000 WL 1784925 at 4.

Another objective of the DNA Act was to promote accuracy in the criminal justice system since identification would likely exonerate those wrongly accused or convicted of a crime. 2000 WL 1784925 at 5. Since DNA sampling can easily exculpate as well as inculpate offenders, an ancillary benefit of the DNA Act will be releasing those wrongfully accused or convicted. The reliance of DNA analysis for this purpose demonstrates that "DNA testing is critical to the effective administration of justice in 21st century America." Id. The Congressional history also anticipates the DNA Act would reduce recidivism by incarcerating offenders before they have the opportunity to repeat their crimes in the future. 2000 WL 1784925.

Congress directed that the Administrative Office of the Courts ("AO") manage the practical implementation of the DNA Act, with respect to qualifying federal offenders on supervised release status.⁷ (D.I. 216, Ex. A, Ex. B) In a December 21, 2001 memorandum to United States Probation Offices, the Assistant Director of the AO wrote: "Although Congress has not provided funding for the judiciary to do DNA collection, the Director [of the AO] has decided that probation offices should begin collecting blood samples as soon as possible." (Id.) The criteria to determine qualifying offenses and instructions for collection of the blood sample, procurement of health care services to extract the blood sample, and the payment procedure for such services was included in the memorandum. (Id. at Ex. D) Consistent with these instructions, the United States Probation Office for the District of Delaware "identified the cases under supervision for qualifying offenses, received collection and fingerprint kits from the FBI, viewed training videos and procured DNA services" and then informed defendant of his September 25, 2002 appointment with a phlebotomist.⁸ (Id.)

III. DISCUSSION

A. Fourth Amendment

As his first argument, defendant contends that the DNA Act violates the Fourth Amendment's prohibition against unreasonable searches and seizures because it compels extraction of blood for a DNA sample in the absence of individualized suspicion or probable cause of any criminal wrongdoing. (D.I.214) Defendant claims the government further infringes on his Fourth Amendment privacy interests when it chemically analyzes the sample taken.

The government responds that although the DNA Act implicates defendant's Fourth Amendment privacy interests, it is still a reasonable search under either the special needs exception to the warrant requirement or under a reasonableness standard analysis under the Fourth Amendment. (D.I.215)

The Fourth Amendment guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." U.S. Const. Amend. IV.; see Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961). The Amendment "guarantees the privacy, dignity, and security of persons against certain arbitrary and invasive acts by officers of the government or those acting at their direction." Skinner v. Railway Labor Executives' Ass'n., 489 U.S. 602, 613, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989).

All searches and seizures must be reasonable. Indianapolis v. Edmond, 531 U.S. 32, 45, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000); United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985); United States v. Knights, 534 U.S. 112, 119, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001). The test for what is reasonable is fact specific. United States v. Montoya de Hernandez...