Court draws line on taking DNA.

Byline: Bill Bishop The Register-Guard

In a move that could derail the nationwide system for collecting and storing DNA samples from criminals for use in future investigations, a divided 9th U.S. Circuit Court of Appeals panel on Thursday ruled that the federal law requiring parolees to submit blood samples for DNA cataloging violates constitutional protections against unreasonable search.

Civil libertarians hailed the ruling as a needed brake on the government's accelerating collection of personal information, while law enforcement officials said the ruling is flawed and certain to be appealed to the full panel of the appeals court or to the U.S. Supreme Court.

A spokesman for the Oregon attorney general said the state's appellate lawyers are studying the ruling - which grew from a California case - to determine whether it may affect DNA collections from convicts under state law. Oregon's collection procedures differ from those used in California, but the ruling - if upheld - could have sweeping impact.

In a 40-page decision, the court noted that the nationwide DNA system had been instrumental in at least 1,900 investigations in 31 states. Yet, the system - dubbed CODIS, for Combined DNA Index System - is only in its infancy and is expected to become more important as the databank grows.

The court split 2-1 in ruling on the case of convicted armed bank robber Thomas Cameron Kincade, who appealed after being sentenced to additional prison time for refusing to submit to a blood draw for DNA testing in March 2002.

The majority held that the federal law that required Kincade's testing does not fit into any "special needs" circumstances where courts have previously said the government's reason for a search does not require "individualized suspicion" of a crime. Special needs cases include such things as drug tests for railroad employees, student athletes, highway sobriety checkpoints and border searches.

Instead, the majority ruled the federal DNA law is primarily a law enforcement tool. As such, authorities must have some suspicion that an individual has committed a specific crime before a search is legal.

"It is undoubtedly true that, were we to maintain DNA files on all persons living in this country, we would even more effectively further the public interest in having efficient and orderly criminal prosecutions, just as we would were we willing to sacrifice all of our interests in privacy and personal liberty," appeals Judge Stephen Reinhardt wrote for the majority. "We chose, however, not to follow that course when we adopted the Fourth Amendment."

However, in a seven-page dissenting opinion, Judge Diarmuid O'Scannlain argued that the California case should not be viewed as a narrow "special needs" case, but in another broader legal category that weighs the relative intrusion on the individual's rights against society's legitimate interest in identifying criminals.

Chief Deputy Lane County District Attorney Kent Mortimore said the court majority focused on the intrusive blood test required in California. He noted that Oregon officials use a swab to extract DNA from the mouth of a donor.

He said an earlier federal appeals court ruling upheld Oregon's DNA law, ruling the process is more akin to fingerprinting criminals for future identification than it is to collecting personal information for broader purposes.

"This is a three-judge panel. It's a 2-1 decision. Given the nature of the decision, it's going to be reviewed by the full appeals court or the U.S. Supreme Court," Mortimore said.

However, Oregon American Civil Liberties Union Executive Director Dave Fidanque said the ruling draws the line on DNA collection before it's too late. He said the government continues to expand its DNA collection system and stringent safeguards should be imposed on who can be required to submit DNA.

He said the ACLU supports DNA testing in some cases, such as for sex offenders. However, he noted Virginia requires anyone who is arrested to submit a DNA sample, even if the charges eventually are dropped.

Fidanque said DNA contains highly personal information beyond what is used for identifying individuals. If unchecked, the government might someday use the DNA databank to study family traits or people's propensity for disease, psychological problems, criminal conduct and other characteristics.

"There is no question that is where it leads and where we are headed," Fidanque said. "The question is how much privacy are those of us who have done nothing wrong willing to give up?"