In today's U.S. v. Pool decision, the Ninth Circuit affirmed in a 2-1 decision the EDCA court's denial of constitutional challenges to the mandatory pre-conviction collection of DNA from all persons released pretrial after being charged with a felony. The majority opinion is authored by Judge Consuelo Callahan while Judge Mary Schroeder dissents. Tenth Circuit Judge Carlos Lucero, sitting by designation, concurs. Contrast the introduction of Judge Callahan's majority decision:
We hold that where a court has determined that there is probable cause to believe that the defendant committed a felony, the government’s interest in definitively determining the defendant’s identity outweighs the defendant’s privacy interest in giving a DNA sample as a condition of pretrial release in cases in which the government’s use of the DNA is limited to identification purposes and there is no indication that the government intends to use the information for any other purpose.
with the introduction of Judge Schroeder's dissent:
This is a case in which the government seeks to extract a DNA sample as a condition of every pretrial release without either a warrant or a showing of probable cause to conduct DNA profiling. No circuit has ever before approved such a warrantless search or seizure before an individual has been convicted of any crime. DNA sampling can of course confirm identity, but it also provides infinitely more information about an individual than fingerprints. The majority and the concurring opinions now uphold the constitutionality of the proposed search and seizure because they find that Pool has failed to show that they would unduly burden his reduced privacy interests as a pretrial defendant. I disagree and would hold that the government fails to justify a Fourth Amendment exemption of this magnitude.
Based on the heated exhanges in prior, post-conviction DNA collection cases in the Ninth, I expect this case to go en banc. The decision affirms rulings by U.S. District Judge Edward J. Garcia, who adopted the analysis of Magistrate Judge Gregory G. Hollows. My prior posts on this issue are available here: DNA testing litigation. Sacramento Bee, 9/15/10