Legal Commentary

Cheek Swabs for Arrestees? DNA Likely Don?t Violate the Fourth Amendment ? Even Though Cheek Swabs of Pretrial Detainees Do Violate the Amendment

By Eugene Volokh

That?s the odd result of Haskell v. Brown, decided a month ago by Judge Charles Breyer of the Northern District of California. Judge Breyer (not to be confused with Justice Stephen Breyer, his brother) refused to preliminary enjoin the collection of cheek swab samples from arrestees, largely because he thought that the searches are likely consistent with the Fourth Amendment. But wait: The Ninth Circuit had held, in Friedman v. Boucher that such cheek swabs of pretrial detainees are generally unconstitutional. (We?re talking here about the taking of DNA just because someone is arrested or detained; if there?s probable cause to believe the DNA will reveal evidence of some crime ? for instance, if there?s probable cause to think that this person is guilty of a rape, and the DNA is to be compared against DNA left at the scene of the rape ? and a warrant based on probable cause, that?s clearly constitutional.)

Here?s the district judge?s explanation:

Plaintiffs will argue that so holding conflicts with the Ninth Circuit?s decision in Friedman. However, Friedman did not engage in a thorough totality of the circumstances test: it did not consider government interests beyond supervision, nor did it examine the extent of Friedman?s privacy interest. See 580 F.3d at 862?65 (Callahan, J., dissenting) (dissent, instead, conducted balancing analysis between individual?s privacy interests and government?s legitimate interest in identification). Though Friedman warns that ?[n]either the Supreme Court nor our court has permitted general suspicionless, warrantless searches of pre-trial detainees for grounds other than institutional security or other legitimate penological interests,? the Court finds that doing so here ? certainly at this stage of the litigation ? is proper under the totality of the circumstances test required by Rise, Kincade and Kriesel [earlier cases upholding forced DNA swabs of people convicted of a crime].

But I don?t see how this can be right: Part III-C of Friedman expressly considered whether the search was justifiable under a general Fourth Amendment ?reasonableness? analysis ? the same analysis that is often described as a ?totality of the circumstances? test ? and held that it wasn?t justifiable. It also did consider ?the extent of [the claimant?s] privacy interest,? holding that ?We have long recognized that pre-trial detainees retain greater privacy interests, for the purposes of Fourth Amendment analysis, than do persons who are incarcerated pursuant to a valid conviction? (thus distinguishing Friedman?s claim ? and by extension the plaintiffs? claim in Haskell ? from the Rise, Kincade, and Kriesel precedents). And it also considered, in the ?special needs? discussion, the asserted ?government interest asserted by Nevada in taking Friedman?s DNA was to help solve ?cold cases,?? certainly a ?government interest[] beyond supervision.?

Now perhaps the district judge thinks that Friedman?s analysis of this was too sketchy; and maybe he?s right. (I?m not sure what the right Fourth Amendment analysis should be here, either as a matter of Fourth Amendment first principles, or under the emerging Fourth Amendment ?reasonableness? test.) But it seems pretty clear that Friedman is the most on-point precedent, and that under it the testing of arrestees? DNA ? especially for purposes that include solving crimes, and not just identifying this particular arrestee ? is unconstitutional. Or am I missing something here?

Full post as published by The Volokh Conspiracy on February 08, 2010 (boomark / email).