Wednesday, July 17, 2013

Ninth Circuit Upholds Indefinite Retention of DNA Samples: The Majority Opinion in Kriesel III

Thomas Kriesel wants his blood back. The federal government forced him to give a sample for the FBI’s national DNA databank while he was on probation following his imprisonment for conspiring to possess methamphetamine with the intent to distribute it.

At first, he challenged the federal law requiring DNA sampling as a condition of supervised release, but a panel the Court of Appeals for the Ninth Circuit rejected that challenge in a split opinion in 2007. United States v. Kriesel, 508 F.3d 941 (9th Cir. 2007).

After completing his sentence, Kriesel sued the government. He demanded that it remove his identifying profile from the federal database and return his blood sample. The district court held that he was not entitled to expungement of the profile. On appeal, he dropped that part of his claim, but continued to argue for the return of the blood sample. The Ninth Circuit sent the case back to the district court for a more complete record and ruling on the retention of the sample. United States v. Kriesel, 604 F.3d 1124 (9th Cir. 2010).

On remand, the district court again ruled against Kriesel. The case moved to the court of appeals for the third time, and last month, Kriesel suffered another defeat. In United States v. Kriesel, No. 11–30197, 2013 WL 3242293 (9th Cir. June 28, 2013), the Ninth Circuit become the first U.S. Court of Appeals specifically to uphold indefinite sample retention. Judge Mary Schroeder wrote the majority opinion for herself and Judge Milan Smith. Judge Stephen Reinhardt wrote a lengthy dissent.

All the judges, from the district court on up, agreed that if the post-sentence retention of the sample offended the Fourth Amendment or if the government had no need to hold on to the sample, Kriesel would be entitled to its return under Federal Rule of Criminal Procedure 41(g). Proceeding under this rule is similar to bringing an equitable action for the return of property that the government has acquired improperly or no longer needs. The majority observed that the rule's definition of property includes “documents, books, papers, any other tangible objects, and information.” Fed. R. Crim. P. 41(a)(2)(A). It then noted that “the blood sample itself is a tangible object, and the genetic code contained within the blood sample is information.” Finally, it pointed out that “[t]he applicability of Rule 41 to bodily fluids is supported by our circuit law. We have previously held that professional baseball players' urine samples, that the government seized from a laboratory, were ‘property’ within the meaning of Rule 41(g). United States v. Comprehensive Drug Testing, 621 F.3d 1162, 1173 (9th Cir. 2010).”

It is, however, far from clear that anyone has ordinary property rights in their cells, fluids, and biological “information.” Just ask the family of Henrietta Lacks. Suppose that someone dropped a diamond ring on the sidewalk and was looking for it when a passerby joined in the search, found it, and took it. The owner would be entitled to its return. Now suppose the owner lost a drop of blood when he cut his finger on a glass fragment lying on the ground looking for the ring and a passerby placed the bloody fragment in a cup. Would the owner be entitled to the return of this bodily fluid? Of “the genetic code contained within the blood sample”? Not all that is private or personal is property, and Rule 41(g) applies only to "property." It reads:
(g) Motion to Return Property. A person aggrieved by an unlawful search and seizure of property or by the deprivation of property may move for the property's return. The motion must be filed in the district where the property was seized. The court must receive evidence on any factual issue necessary to decide the motion. If it grants the motion, the court must return the property to the movant, but may impose reasonable conditions to protect access to the property and its use in later proceedings.
Commentary to the 1989 amendment of the rule likewise refers to the "right of a property owner." But let's assume that even if Kriesel lacks the full bundle of rights associated with property under the common law, he is a "property owner" for the purpose of Rule 41. There still is a problem with applying Rule 41 to compel the return of the blood. Kriesel I established that Kriesel was not "aggrieved by an unlawful search or seizure." Even if the blood sample can be considered his property, is he "aggrieved ... by the deprivation of property"? It is not as if he needs the drops of blood for his personal use. Their destruction would fulfill all the privacy interests he can claim.

Thus, the Ninth Circuit's extension of Rule 41 to bodily fluids like blood and urine is not as straightforward as it might seem. In addition to the property issue, under the Fourth Amendment, the compelled acquisition of these items is a search, not a seizure (see David H. Kaye, On the “Considered Analysis” of DNA Collection Before Conviction, 60 UCLA L. Rev. Disc. 104 (2013)). Rule 41 is tied to the Fourth Amendment in many ways, and it applies only when "property was seized."

Of course, there is an answer to these technical arguments. In the end, the Ninth Circuit's reading of Rule 41 rests on a broad conception of the rule's purpose as affording the government access to all the constitutionally obtained evidence it needs for law enforcement purposes while accommodating the interests of property owners. Because a property owner is entitled to shield his property from view, it is arguable that even though continuing to hold on to material is neither a search nor a seizure under the Fourth Amendment, it might be unreasonable under Rule 41(g). (For the view that retention alone is not a search, see Boroian v. Mueller, 616 F.3d 60 (1st Cir. 2010).)

Granting that the Ninth Circuit’s reading of Rule 41(g) to encompass bodily fluids as "property" is correct, the question becomes whether the continued retention of the sample is unreasonable. The majority frames the issue as whether “the government has shown a legitimate reason for retaining the property.” This standard, although tilted against property owners, is consistent with the following commentary to the 1989 amendments:
No standard is set forth in the rule to govern the determination of whether property should be returned to a person aggrieved either by an unlawful seizure or by deprivation of the property. The fourth amendment protects people from unreasonable seizures as well as unreasonable searches, United States v. Place, 462 U.S. 696, 701 (1983), and reasonableness under all of the circumstances must be the test when a person seeks to obtain the return of property. If the United States has a need for the property in an investigation or prosecution, its retention of the property generally is reasonable. But, if the United States' legitimate interests can be satisfied even if the property is returned, continued retention of the property would become unreasonable.
The majority discerned two such legitimate reasons for sample retention. First, when there is a cold hit in the database to a crime-scene sample, before making an arrest, the government “compares the database profile against a new profile generated from the offender's retained blood sample.” This protects a suspect whose profile was incorrectly ascertained or recorded from being “hauled into custody.” Second, the government randomly samples 1% of the offender samples processed in the preceding six months for re-profiling. If an inconsistency appears, the laboratory can “review how the process might have malfunctioned” and retest other samples that might have been misanalyzed.

In a hyperbolic dissent, Judge Reinhardt found these justifications “entirely without merit.” In his eyes, the majority's opinion is “wholly unsatisfactory”—a “failure” stemming from “unwillingness to protect the fundamental right to privacy of all Americans.” Indeed, “[n]o other case ... reflects a greater surrender on the part of the courts of the citizens' right of privacy ... .” It is bad enough that “the government ... will [keep Kreisel’s blood] indefinitely in a government-controlled refrigerator in a warehouse in Northern Virginia,” but  the decision “affects over ten million individuals who currently have blood samples on file with the federal government and the many tens of millions more average Americans who, as the seizure of DNA samples expands almost beyond limits, will have their entire genetic code maintained permanently in other government refrigerators.” “Never before have we condoned so great an infringement on the privacy rights of so many Americans.”

The dissent, I fear, overstates the harms to the individuals whose DNA resides in the sample repositories. Nonetheless, Judge Reinhardt come closer to the mark in maintaining that the two rationales for wholesale and indefinite retention are rather weak. Stay tuned for elaboration on these conclusions.

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