DNA profiling case could be ruled moot

By John Roemer

Daily Journal Staff Writer

A major en banc showdown set for oral argument next week over arrestee DNA profiling might get knocked off the 9th U.S. Circuit Court of Appeals' docket on mootness grounds, Chief Judge Alex Kozinski suggested Thursday.

The issue of whether the government can, without a warrant, require a DNA sample from all criminal defendants before they go to trial is currently at the leading edge of Fourth Amendment legal debate and at the center of the case.

But the court could decline to hear the case because the criminal defendant involved has pleaded guilty to a sex offense, potentially undermining the reason for the appeal and thus taking the related DNA issue off the agenda.

A year ago, a 9th Circuit panel voted 2-1 that the government is justified in requiring DNA samples from defendants before agreeing to their release on bail. The dissenting judge protested that no circuit has ever before approved such a warrantless search or seizure before an individual has been convicted of any crime. U.S. v. Pool, 621 F.3rd 1213 (2010).

The dissent provoked a successful en banc call; 11 judges were drawn at random to rehear the matter; numerous friends of the court joined the fray; briefing was completed and oral argument was set for next Tuesday.

Then, in July, defendant Jerry A. Pool pleaded guilty to the underlying criminal charge - possession of child pornography - that launched the case and left Pool vulnerable to the government's DNA collection demand.

Kozinski on Thursday ordered Pool's lawyers to explain why his appeal should not be dismissed as moot. Attorney Rachelle Barbour, a deputy federal defender in Sacramento who represents Pool, has until noon today to file her brief.

"It's just the world we live in," Barbour said Thursday as she scrambled to marshal her arguments to keep her case alive. "The ground shifts under our feet."

If the case is dismissed for mootness, Barbour said, the original Pool opinion will be vacated and the question will be left unresolved at the 9th Circuit until it decides a class action filed by the ACLU over the identical issue, Haskell v. Brown, 10-15152.

U.S. Supreme Court review of the DNA question is likely at some point. A 3rd Circuit en banc panel ruled 8-6 in favor of the DNA practice in July. And a California Court of Appeal panel ruled it unconstitutional in August.

"[The high court] will have to ultimately take it up," said ACLU staff attorney Michael T. Risher of San Francisco. "Until they do, it should be an interesting ride over the next months or years. The Supreme Court has said that searches without warrants are presumptively unreasonable."

Both the government and Pool's defense have asserted that his appeal should not be dismissed. Pool's sentencing is not set until November and could be continued, argued Assistant U.S. Attorney Phillip A. Talbert of Sacramento in court papers, so a judgment of conviction is not imminent. Also, Talbert said, Pool could seek to withdraw his plea, making consideration of mootness premature.

Barbour made a similar claim, pointing out that Pool's DNA sampling has been stayed pending his appeal, so he retains a stake in the outcome of the litigation.

Friend of the court briefs on the side of the government came from a nonprofit called DNA Saves, a lobby that advocates for wider use of forensic DNA, including the sampling of all arrestees. The group asserts that taking DNA is no different than taking fingerprints, which has long been done without warrants, so no Fourth Amendment rights are at issue.

In opposition, the ACLU and the Electronic Frontier Foundation contend that DNA sampling is used far more intrusively than fingerprinting and violates individuals' genetic privacy rights.

"The big picture is that we see courts reaching different conclusions not so much because they have different views of the Fourth Amendment but because some have a better understanding of DNA data banks and how arrestee testing is being used," said the ACLU's Risher. "The government wants samples not for identification, but for law enforcement."

In the California Court of Appeal case Justice J. Anthony Kline explained why a state DNA collection law can't pass constitutional muster.

"What the DNA Act authorizes is the warrantless and suspicionless search of individuals, before a judicial determination of probable cause to believe they have committed a crime, for evidence of crime unrelated to that for which they have been arrested," Kline wrote for a unanimous three-judge panel. People v. Buza, 2011 DJDAR 11741.

"The United States Supreme Court has never permitted suspicionless searches aimed at uncovering evidence of crime outside the context of convicted offenders."

A New Mexico woman whose daughter's 2003 murder spurred her to launch DNA Saves to promote the California law and similar laws passed by Congress and 25 other states, said she believes the Supreme Court will ultimately uphold what she says is a life-saving practice.

"We kind of see [the California Court of Appeal ruling] as an anomaly and believe it will be reversed," said Jayann Sepich.

The 3rd Circuit en banc majority reached a contrary conclusion in U.S. v. Mitchell, 09-4718. Arrestees have a diminished expectation of privacy regarding their identity, which DNA can disclose, the majority held.

The 9th Circuit's mootness decision is expected Monday.

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