US v. Mitchell

• Citation: 681 F. Supp.2d 597
• Decision Date: 06 November 2009
• Docket Number: No. 2:09cr105.,2:09cr105.
• Parties: UNITED STATES of America v. Ruben MITCHELL.
• Court: United States District Courts. 3th Circuit. United States District Courts. 3th Circuit. Western District of Pennsylvania

681 F. Supp.2d 597

UNITED STATES of America v. Ruben MITCHELL.

No. 2:09cr105.

United States District Court, W.D. Pennsylvania.

November 6, 2009.

Michael Leo Ivory, Laura Schleich Irwin, United States Attorney's Office, Pittsburgh, PA, for United States of America.

Elisa A. Long, Federal Public Defender's Office, Pittsburgh, PA, for Ruben Mitchell.

MEMORANDUM OPINION

DAVID STEWART CERCONE, District Judge.

I. INTRODUCTION

On March 24, 2009, a grand jury returned a one-count indictment against Defendant, Ruben Mitchell ("Mitchell" of "Defendant"), charging him with attempt to possess with intent to distribute five (5) kilograms or more of a mixture and substance containing a detectable amount of cocaine, in violation of Title 21, United States Code, Section 846. Mitchell was arrested on April 6, 2009, and made his initial appearance before Magistrate Judge Lisa Pupo Lenihan on April 30, 2009.

During the initial appearance, the Government requested a DNA sample from Mitchell pursuant to 42 U.S.C. § 14135a(a)(1)(A) and its accompanying regulation 28 C.F.R. § 28.12. Mitchell, through counsel, objected to the pretrial collection of his DNA¹, and requested leave to file a brief in support of his position. Magistrate Judge Lenihan then ordered that Mitchell file a motion and brief in support of his objections and stayed the collection of Mitchell's DNA pending resolution of the issue by this Court. The Government and the Defendant have had an opportunity to brief the matter, and the issue is now before the Court.

II. DISCUSSION

The DNA Analysis Backlog Elimination Act of 2000 (the "Act"), 42 U.S.C. 14135a, required the collection of a DNA sample "from each individual in the custody of the Bureau of Prisons who is, or has been, convicted of a qualifying Federal offense" and from "an individual on probation, parole or supervised release ..." 42 U.S.C. 14135a(a)(1) & (2)(2000). Congress expanded the reach of the Act in 2006 (the "2006 Act") allowing the Attorney General to "collect DNA samples from individuals who are arrested, facing charges, or convicted..." 42 U.S.C. § 14135a(a)(1)(A). Subsequent to collection, the DNA sample is to be provided to the Director of the Federal Bureau of Investigation (the "FBI") for analysis and inclusion in the Combined DNA Index System ("CODIS"). 42 U.S.C. § 14135a(b).

The expansion of the statutory DNA collection, however, did not go into effect until the regulations were finally promulgated by the Attorney General effective January 9, 2009. See 28 C.F.R. § 28.12. In relevant part, the regulation states:

Any agency of the United States that arrests or detains individuals or supervises individuals facing charges shall collect DNA samples from individuals who are arrested, facing charges or convicted...

28 C.F.R. § 28.12(b). Citing the regulation, the Government appeared at Mitchell's initial appearance requesting permission from the Court to collect a sample of Mitchell's DNA.

Mitchell contends that the pretrial collection of his DNA violates the Fourth Amendment to the United States Constitution as the procedure constitutes a warrantless search that cannot be justified under any exception to the warrant requirement. Further, Mitchell argues that Congress exceeded its authority under the Commerce Clause when it enacted the statute which permits the collection of DNA from individuals who are arrested and/or facing charges. It is undisputed that either the drawing of blood, see Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 616, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989), or the use of a buccal swab, see Padgett v. Donald, 401 F.3d 1273, 1277 (11th Cir.2005), for purposes of DNA collection are searches subject to Fourth Amendment scrutiny. Further, the "ensuing chemical analysis of the sample to obtain physiological data" is also a search covered by the Fourth Amendment. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. at 616, 109 S.Ct. 1402.

The Fourth Amendment to the United States Constitution protects "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. Therefore, "the fundamental task of any Fourth Amendment analysis is assessing the reasonableness of the government search." United States v. Sczubelek, 402 F.3d 175, 182 (3d Cir.2005) (quoting United States v. Knights, 534 U.S. 112, 118, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001)). If a search is reasonable, there is no violation of individual Fourth Amendment rights as the Fourth Amendment proscribes only those searches and seizures that are unreasonable. Skinner v. Railway Labor Executives' Ass'n, 489 U.S. 602, 619, 109 S.Ct. 1402, 103 L.Ed.2d 639 (1989); United States v. Sharpe, 470 U.S. 675, 682, 105 S.Ct. 1568, 84 L.Ed.2d 605 (1985). What is reasonable "depends on all of the circumstances surrounding the search or seizure and the nature of the search or seizure itself." Skinner v. Railway Labor Executives' Ass'n, 489 U.S. at 619, 109 S.Ct. 1402; United States v. Montoya de Hernandez, 473 U.S. 531, 537, 105 S.Ct. 3304, 87 L.Ed.2d 381 (1985). The Court must balance "on the one hand, the degree to which the search intrudes upon an individual's privacy and, on the other hand, the degree to which the search is needed for the promotion of legitimate governmental interests." United States v. Knights, 534 U.S. at 119, 122 S.Ct. 587; see also Skinner v. Railway Labor Executives' Ass'n, 489 U.S. at 619, 109 S.Ct. 1402.

A search or seizure is generally found to be reasonable if accomplished pursuant to a judicial warrant issued upon probable cause. See Skinner v. Railway Labor Executives' Ass'n, 489 U.S. at 619, 109 S.Ct. 1402; Payton v. New York, 445 U.S. 573, 586, 100 S.Ct. 1371, 63 L.Ed.2d 639 (1980); Mincey v. Arizona, 437 U.S. 385, 390, 98 S.Ct. 2408, 57 L.Ed.2d 290 (1978). However, "neither a warrant nor probable cause, nor, indeed any measure of individualized suspicion, is an indispensable component of reasonableness in every circumstance." United States v. Sczubelek, 402 F.3d at 182 (quoting Nat'l Treasury Employees Union v. Von Raab, 489 U.S. 656, 665, 109 S.Ct. 1384, 103 L.Ed.2d 685 (1989)). The United States Supreme Court has recognized exceptions to the warrant requirement when: "special needs, beyond the normal need for law enforcement, make the warrant and probable-cause requirement impracticable", Griffin v. Wisconsin, 483 U.S. 868, 873, 107 S.Ct. 3164, 97 L.Ed.2d 709 (1987) (quoting New Jersey v. T.L.O., 469 U.S. 325, 351, 105 S.Ct. 733, 83 L.Ed.2d 720 (1985)(Blackmun, J., concurring in judgment)), or when legitimate governmental interests outweigh the diminished expectation of privacy of those previously convicted of a crime. United States v. Sczubelek, 402 F.3d at 184-186.

Prior to Congress' enactment of the 2006 Act, every federal circuit considering DNA indexing statutes has upheld the statutes as constitutional under the Fourth Amendment. See United States v. Conley, 453 F.3d 674 (6th Cir.2006) (reviewing the 2000 DNA Act); United States v. Kraklio, 451 F.3d 922, 923 (8th Cir.2006) (reviewing the 2000 DNA Act); Nicholas v. Goord, 430 F.3d 652, 671 (2d Cir.2005) (reviewing comparable state DNA indexing statute); United States v. Sczubelek, supra. (reviewing the 2000 DNA Act); Padgett v. Donald, 401 F.3d 1273 (11th Cir.2005) (reviewing comparable state DNA indexing statute), cert. denied, 546 U.S. 820, 126 S.Ct. 352, 163 L.Ed.2d 61 (2005); United States v. Kincade, 379 F.3d 813, 830-32 (9th Cir.2004) (en banc, five judges endorsing the reasonableness standard; one, the special needs exception; and five dissenting)(reviewing the 2000 DNA Act), cert. denied, 544 U.S. 924, 125 S.Ct. 1638, 161 L.Ed.2d 483 (2005); Green v. Berge, 354 F.3d 675, 677-79 (7th Cir.2004) (reviewing comparable state DNA indexing statute); Groceman v. U.S. Dep't of Justice, 354 F.3d 411, 413-14 (5th Cir.2004) (per curiam) (reviewing the 2000 DNA Act); United States v. Kimler, 335 F.3d 1132, 1146 (10th Cir.2003) (reviewing the 2000 DNA Act); Jones v. Murray, 962 F.2d 302, 306-08 (4th Cir.1992) (reviewing comparable state DNA indexing statute). In each of these cases, the party challenging the statute had been convicted of a crime specified in the relevant statute.

In finding the DNA statutes constitutional under the Fourth Amendment, the majority of circuits relied upon the "totality of the circumstances" test, balancing the legitimate governmental interests against the diminished expectation of privacy of those previously convicted of a crime, and determining whether the search and seizure was reasonable. See United States v. Kraklio, 451 F.3d at 924; United States v. Sczubelek, 402 F.3d at 184-186; Padgett v. Donald, 401 F.3d at 1280; United States v. Kincade, 379 F.3d at 832; Groceman v. U.S. Dep't of Justice, 354 F.3d at 413; Jones v. Murray, 962 F.2d at 307. The Second, Seventh and Tenth Circuits, however, applied the "special needs" test, examining whether special needs existed which would sufficiently justify a search and seizure absent a warrant and probable cause. See Nicholas v. Goord, 430 F.3d at 671; Green v. Berge, 354 F.3d at 679; United States v. Kimler, 335 F.3d at 1146. Finally, the Sixth Circuit declined to choose a mode of analysis, holding that the DNA Act was constitutional under either a totality of the circumstances or a special needs analysis. See United States v. Conley, 453 F.3d at 679-681.

Absent a warrant and probable cause, then, the Court must analyze Mitchell's Fourth Amendment challenge to the 2006 Act under either the "special needs" exception or the "totality of the circumstances" balancing test. The Government in this instance argues that the Court must take into account the totality of the circumstances in assessing the reasonableness of requiring a DNA sample from Mitchell. See United States v. Knights, 534 U.S. 112, 122 S.Ct. 587, 151 L.Ed.2d 497 (2001); United States v. Sczubelek...