U.S. v. Stewart

• Decision Date: 08 January 2007
• Docket Number: Criminal Action No. 05-10062-WGY.
• Citation: 468 F.Supp.2d 261
• Parties: UNITED STATES of America, Plaintiff, v. James STEWART, a/k/a James Stewart, Jr., a/k/a James L. Stewart, Defendant.
• Court: U.S. District Court — District of Massachusetts

Page 261

468 F.Supp.2d 261

UNITED STATES of America, Plaintiff, v. James STEWART, a/k/a James Stewart, Jr., a/k/a James L. Stewart, Defendant.

Criminal Action No. 05-10062-WGY.

United States District Court, D. Massachusetts.

January 8, 2007.

Peter C. Horstmann, Law Offices of Partridge, Ankner & Horstmann, LLP, Boston, MA, for Defendant.

Antoinette E.M. Leoney, United States Attorney's Office, Boston, MA, for Plaintiff.

MEMORANDUM AND ORDER

YOUNG, District Judge.

On a historical island between the looming skyscrapers and glass office buildings of the Boston financial district sits the Old State House—a small but ornate brick building that was once the seat of the royal government in colonial Massachusetts. This building is perhaps best remembered for the white, second floor balcony where, on July 18, 1776, Colonel Thomas Crafts read to the people of Boston a copy of the newly signed Declaration of Independence. Yet, fifteen years earlier an event occurred in that building that a young John Adams witnessed and would describe as "the first scene of the first act of opposition to the arbitrary claims of Great Britain. . . . Then and there the child independence was born." David McCullough, John Adams 62 (Simon & Schuster 2001).

John Adams was referring to the eloquent five-hour speech James Otis gave against the Writs of Assistance—the general warrants authorized by the British Crown to customs officials allowing them to conduct arbitrary searches for untaxed imported goods. Otis had argued that any statutory authority that purported to grant such a general writ violated common-law principles and was, as a result, null and void. The arguments made by Otis highlighted the colonists' aversion to arbitrary governmental action and were instrumental in the enactment of the Fourth Amendment to the United States Constitution.

Today, this Court is called upon to apply the principles that once resonated in the halls of the Old State House and in the minds of the Framers of our Constitution to a situation framed by technology, penological interests, and suspect statutory authority. James Stewart ("Stewart") brings this Motion to Modify Conditions of Probation [Doc. No. 16] seeking to preclude the United States Probation Department from obtaining a DNA¹ sample pursuant to the DNA Analysis Backlog Elimination Act of 2000 ("DNA Act"), codified at 42 U.S.C. §§ 14135-14135e and 10 U.S.C. § 1565, and in accordance with the special conditions of his probation. Stewart argues that the DNA Act, by compelling a collection of his DNA while on probation, violates his constitutional rights under the Fourth Amendment to the United States Constitution. This Court agrees and holds the DNA Act unconstitutional as applied to Stewart.

I. UNDISPUTED FACTUAL AND PROCEDURAL BACKGROUND

On March 16, 2005, the United States indicted Stewart for one (1) Count of Theft of Public Money, Property or Records under 18 U.S.C. § 641 [Doc. No. 1]. Specifically, Stewart was charged with the unlawful diversion of approximately $30,796 in Social Security disability benefits. Stewart initially pled not guilty to the charge but later changed his plea to guilty after negotiating a plea agreement [Doc. No. 10] ("Plea Agreement").

On January 5, 2006, this Court sentenced Stewart to three years on probation [Doc. No. 15] ("Order"). As a special condition of probation, the Court included a requirement to submit to the collection of a DNA sample. Order at 2. The original plea agreement did not contain this requirement. See Plea Agreement at 1-7. The DNA Act provides the statutory authority to order the collection of a DNA sample.

Congress passed the DNA Act in 2000 to provide for the collection and analysis of DNA samples taken from a class of offenders. 42 U.S.C. § 14135. The DNA Act requires a probation officer to collect a DNA sample from any person placed on supervised release, parole, or probation who is or was convicted of a qualifying federal offense. Id. § 14135a(a)(2). A qualifying offense includes any felony and any statutory crime under chapter 109A of Title 18 (crime of sexual abuse) or section 16 of Title 18 (general crime of violence), as well as any attempt or conspiracy to commit any of those offenses. Id. § 14135a (d)(1)-(4). A probation officer is authorized, pursuant to a 2006 amendment, to use any "means as are reasonably necessary to detain, restrain, and collect a DNA sample from an individual who refuses to cooperate in the collection of the sample." Id. § 14135a(a)(4)(A). The collected sample is furnished to the Federal Bureau of Investigation for analysis and then entered into the Combined DNA Index System ("CODIS").² Id. § 14135a(b). CODIS is a national DNA database created formally in 1994 with the passage of the Violent Crime Control and Law Enforcement Act. 42 U.S.C. § 14132. CODIS allows "[s]tate 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. No. 106-900(I), at 8 (2000).

Stewart refuses to follow the dictates of the DNA Act and the special condition of his probation that require a collection of his DNA sample. On June 9, 2006, Stewart filed the motion to modify conditions of his probation at issue before this Court. Were his motion denied, his refusal to submit a blood sample to the United States Probation Department would violate the special conditions of his probation and constitute a Class A misdemeanor offense under 42 U.S.C. § 14135a(5)(A). The United States Government opposes the motion and filed a supporting memorandum [Doc. No. 17].

II. DISCUSSION

A. Applicability of the Fourth Amendment

The Fourth Amendment extends constitutional protection to the individual "to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures" and concomitantly provides that this right "shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized." U.S. const. amend. IV.

Before Fourth Amendment protections attach, the governmental "search" or "seizure" must implicate a constitutionally protected interest. See United States v. Dionisio, 410 U.S. 1, 15, 93 S.Ct. 764, 35 L.Ed.2d 67 (1973). The modern test for a constitutionally protected interest derives from Justice Harlan's concurrence in Katz v. United States, which stated that a governmental search or seizure must violate a subjective expectation of privacy that society objectively recognizes as reasonable. 389 U.S. 347, 361, 88 S.Ct. 507, 19 L.Ed.2d 576 (1967) (Harlan, J., concurring); see also Oliver v. United States, 466 U.S. 170, 177, 104 S.Ct. 1735, 80 L.Ed.2d 214 (1984). This two-prong requirement presents a threshold that must be satisfied before a Fourth Amendment inquiry into the constitutionality of a search or seizure is required. See Katz, 389 U.S. at 361, 88 S.Ct. 507.³

Applying this threshold inquiry to Stewart, the first issue is whether Stewart has an expectation of privacy in the collection of his DNA. See Katz, 389 U.S. at 361, 88 S.Ct. 507. When the government extracts blood for the purpose of collecting DNA, two searches occur, each implicating a potential expectation of privacy. See Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 616, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989). The first expectation of privacy concerns the physical penetration of the person to extract the blood. The second expectation is implicated when the blood is tested and the information contained in DNA is revealed. The Supreme Court, in. Skinner, recognized that the taking and testing of a blood sample constitutes two separate searches when it stated, "[t]he ensuing chemical analysis of the [blood] sample to obtain physiological data is a further invasion of the tested employee's privacy interests." Id.

There is little doubt that both searches invade an expectation of privacy and implicate the Fourth Amendment. The taking of a blood sample constitutes a "`severe, though brief, intrusion upon cherished personal security' that is subject to constitutional scrutiny." See Cupp v. Murphy, 412 U.S. 291, 295, 93 S.Ct. 2000, 36 L.Ed.2d 900 (1973) (citing Terry v. Ohio, 392 U.S. 1, 24-25, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)). The Supreme Court, in Schmerber v. California, addressed this issue directly and found that the compelled administration of a blood test falls within the reach and protections of the Fourth Amendment. 384 U.S. 757, 767, 86 S.Ct. 1826, 16 L.Ed.2d 908 (1966). Any forced extraction of blood, therefore, invades one's expectation of privacy in bodily integrity, and its reasonableness must be adjudged under a Fourth Amendment analysis.

In addition, when blood is, extracted and analyzed to reveal information derived from one's DNA, a second intrusion into one's expectation of privacy occurs. See Skinner, 489 U.S. at 616, 109 S.Ct. 1402; Ferguson v. City of Charleston, 532 U.S. 67, 76, 121 S.Ct. 1281, 149 L.Ed.2d 205 (2001) (holding that a test of a urine sample implicates the Fourth Amendment). In Skinner, the Supreme Court held that the chemical analysis of urine implicated the Fourth Amendment because such a test could "reveal a host of private medical facts about an employee, including whether he or she is epileptic, pregnant, or diabetic." 489 U.S. at 617, 109 S.Ct. 1402. Here, DNA is a source of physiological data that far exceeds urine. See, e.g., United States v. Kincade, 379 F.3d 813, 849-50 (9th Cir.2004) (en banc) (Reinhardt, J., dissenting) (noting that current biological developments are undermining the theory of "junk DNA"). This data includes information on one's race or sex, genetic defects, predispositions to diseases, and possibly even sexual orientation. Id. at 850; see also Tania...