Grand Jury Subpoenas for Newborn Screening Blood Spots

On July 10, the New Jersey Office of the Public Defender and the New Jersey Monitor sued the state department of health "to obtain redacted copies of [grand jury] subpoenas ... so that they can learn more about how the State Newborn Screening Laboratory has effectively turned into a warrantless DNA collection facility for State criminal prosecutions." \1/

New Jersey's neonatal screening program, like that in other states, uses a few drops of blood from the newborn’s heel to test "for certain genetic, endocrine, and metabolic disorders ... prior to discharge from a hospital or birthing center." \2/ The Department of Health explains that "[e]arly detection and treatment of the disorders on the newborn screening panel can prevent lifelong disabilities, including intellectual and developmental disabilities, and life threatening infections." \3/ Like many other states, New Jersey health officials retain a "Guthrie card" (named after Dr. Robert Guthrie, who in the 1960s, successfully championed mandatory screening laws for a metabolic disease that causes preventable intellectual disability). \4/

The complaint alleges that the Office of the Public Defender (OPD) "became alarmed" that State Police "are utilizing the residual blood spot samples" and that the health department rebuffed requests to provide information on subpoenas the department may have received from grand juries. The cause of the alarm is described as follows:

The State Police had re-opened an investigation into a “cold case” of sexual assault that had occurred in 1996 and had genetically narrowed the suspects to one of three brothers and their male offspring. ... [They] served a subpoena upon the Newborn Screening Laboratory in or about August 2021 to obtain residual dried blood spot samples that had been collected from a male newborn in or about June 2012.

To ascertain which family member was the suspect, the State Police sought the blood spot sample that was taken from an approximately nine-year-old child when he was a newborn to compare it to the DNA it had collected at the crime scene in 1996. The State Police successfully obtained the child’s blood spot sample, sequenced the DNA, and then ran further analysis utilizing a technique known as investigative genetic genealogy. The State Police alleges those results showed the newborn blood spot sample belonged to the genetic child of the suspect. From there, the State Police used those results to form the basis of an affidavit of probable cause to acquire a warrant to obtain a buccal swab from OPD’s client, who is the child’s father. OPD’s client was then criminally charged.

OPD further asserted "a significant interest in knowing how expansive this law enforcement practice is so that it may better represent its clients who may be subject to such warrantless searches." It did not explain how learning the number of subpoenas would improve its ability to defend any particular client.

The other plaintiff, the New Jersey Monitor, described itself as "the eyes and ears of the public [with] an interest in reporting to the public about this practice that violates basic concepts of genetic privacy."

The pleading claims that "law enforcement agencies are flouting search warrant requirements" and that "[b]ecause the Supreme Court of the United States and the New Jersey Supreme Court recognize that people have a right of privacy in their DNA and that the collection and analysis of that DNA is a search, a search warrant is generally required for such invasive actions."

I have not researched New Jersey jurisprudence, but I strongly doubt that the U.S. Supreme Court's opinions constitutionalize any free-floating "basic concepts of genetic privacy." \5/ The allegation of "subversion of the warrant requirement" of the Fourth Amendment presupposes that a warrant is required. That could be, but this question is not directly covered by Supreme Court precedent. It is the conclusion of what has to be a more complex legal argument. How might that argument go?

The Fourth Amendment declares that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause ... ." How do subpoenas for Guthrie cards come within this proscription? They are not quite seizures of any person or any person's papers or effects.

Are they searches of the person? Certainly, a physical intrusion into the body to extract blood would be, and the state has done that with a warrantless heel prick. But that search is constitutional because of an exception to the warrant-preference rule. The "special needs" exception allows the government to conduct searches and seizures to advance important government interests other than collecting information for criminal cases. Compulsory neonatal screening is an important public health program for providing early treatment or prevention of suffering and impairment. It predates DNA testing for identification (and DNA testing for disease, for that matter). New Jersey's legislation dates back to 1964. That grand jury subpoenas can be issued today to investigate a crime does not make the original search or seizure does not transform the original interference with bodily integrity into one that required probable cause. \6/

There is, however, a second search. The subpoena itself triggers Fourth Amendment protections -- but not to the extent of a physical entry to acquire information. The privacy and security interests are quite different, and the Supreme Court has held that the government may use an administrative subpoena to acquire documents so long as “the documents sought are relevant to the [investigation]” and the document request is “adequate, but not excessive,” for those purposes. \7/ Unlike the warrant process, a subpoena does not require probable cause.

At least, not normally. A Guthrie-card subpoena might be different. In Carpenter v. United States, \8/ the Supreme Court held that probable cause was required for the government to compel wireless carriers to produce time-stamped records of cell-site location information (CSLI) on a robbery suspect that had 12,898 location points cataloging his cell phone's movements over 127 days. Courts had issued orders for these business records in an FBI investigation into a series of robberies, under the Stored Communications Act, which merely requires "specific and articulable facts showing that there are reasonable grounds to believe that ... the records ... [sought] are relevant and material to an ongoing criminal investigation." \9/ Cause to believe that a record is relevant to an investigation is not probable cause to believe that the record is evidence of a suspect's criminal conduct. The majority opinion in Carpenter emphasized that CSLI records added up to (or will, in the near future, amount to) "a detailed chronicle of a person's physical presence compiled every day, every moment, over several years." \10/ As such, it held the relevance-based orders in question were unreasonable searches.

One can argue that the information that can be extracted from a DNA sample "implicates privacy concerns" at least as much as CSLI data. \11/ But the analogy requires attention to the kind of DNA information the government obtains (and the precautions it takes against other personal information being acquired from the DNA).

Until the blood is analyzed, no informational privacy is compromised. \12/ In the case mentioned in the complaint, the police "had genetically narrowed the suspects to one of three brothers and their male offspring." I would guess that they accomplished this by means of Y-STR typing combined with other leads. The police then obtained the Guthrie card for "an approximately nine-year-old child," "sequenced the DNA, and then ran further analysis utilizing a technique known as investigative genetic genealogy" to conclude that the child's "blood spot sample belonged to the genetic child of the suspect." 

It is difficult to discern what DNA testing was done. "Investigative genetic genealogy" normally involves comparisons of haploblocks from crime-scene DNA and DNA in genetic genealogy databases that are open to the public in order to pick possible relatives to the unknown person whose DNA was at the crime-scene. With those findings, ordinary genealogical research may produce a list of suspects. In the case mention in the complaint, police already had the list of suspects. Why perform the extensive haploblock analysis of "investigative genetic genealogy" if the three siblings and the child of one of them already are known? Would not comparing a number of autosomal STR loci not known to be medically informative have been able to show whether the child had a substantial probability of being the child of the man whose DNA was associated with the 1996 sexual assault that the police were investigating? That might be enough for probable cause for a court order compelling the implicated brother to provide a DNA sample for comparison to the one from the 1996 sexual assault. \13/

Of course, it can be argued that the particular loci the police actually used for the investigation hardly matter -- that the very fact that the sample contains medically relevant information that the police could acquire from the Guthrie card makes the case similar enough to the location tracking in Carpenter to require probable cause. In Carpenter, the FBI was only interested in associating the defendant's cell phone with towers near the robberies that were under investigation. Did they assemble detailed itineraries of Carpenter's movements at all other locations that he (or, more precisely, his phone) visited? Perhaps the mere fact that the many cell-site records were in their possession was enough. 

Yet, this argument resembles the one rejected in most cases on the constitutionality of forcing convicted offenders (or even arrestees) to surrender DNA for law-enforcement databases. Most judges, and the Supreme Court, rejected the argument that the potential to type all kinds of loci in itself required probable cause for collecting and profiling the DNA for identification only. \14/

None of this means that New Jersey's Guthrie-card subpoenas are clearly or even probably constitutional. I merely suggest that there could be more to the issue than the complaint alleges. Also, it seems worth noting that the exact connection between the the public records request and the constitutional issue is not entirely apparent. \15/

NOTES

     Thanks to Fred Bieber for news of the complaint.

1. N.J. Office of the Public Defender v. N.J. Dep't of Health, Civ. No. ___ (Complaint, July 10, 2022), available at https://www.theverge.com/2022/7/29/23283837/nj-police-baby-dna-crimes-lawsuit-public-defender.
2. Centers for Disease Control and Prevention, Newborn Screening Portal, Nov. 29, 2021, https://www.cdc.gov/newbornscreening/index.html.
3. N.J. Dep't of Health, Newborn Screening and Genetic Services, Feb. 10, 2022, https://www.nj.gov/health/fhs/nbs/.
4. Harvey L. Levy, Robert Guthrie and the Trials and Tribulations of Newborn Screening, 7(1) Int’l J. Neonatal Screening 5 (2021), available at https://doi.org/10.3390/ijns7010005.
5. Cf. Dobbs v. Jackson Women's Health Organization, No. 19–1392 (U.S. June 24, 2022), available at https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf.
6. Cf. Ferguson v. Charleston, 532 U.S. 67 (2001), available at https://scholar.google.com/scholar_case?case=12447804856380641716. Another exception is consent. Although consent for Fourth Amendment purposes is far less onerous than medical informed consent, the only grounds for refusal in New Jersey are religious. 26 N.J. Stat. Ann. § 26:2-111. So the consent exception does not apply.
7. Okla. Press Publ’g Co. v. Walling, 327 U.S. 186, 209 (1946) (upholding an FTC order for the production of a newspaper publishing corporation’s books and records as request was made pursuant to statute and was reasonably relevant). The Fifth Amendment privilege against self-incrimination offers protection when the act of production itself would be incriminating as an admission. E.g., United States v. Hubbell, 530 U.S. 27 (2000).
8. 138 S.Ct. 2206 (2018), available at https://scholar.google.com/scholar_case?case=14655974745807704559.
9. 18 U.S.C. § 2703(d).
10. Id. at 2220.
11. Id.
12. Cf. id. at 2266-67 (Gorsuch, J., dissenting and asking "Why is the relevant fact the seven days of information the government asked for instead of the two days of information the government actually saw? ... And in what possible sense did the government 'search' five days' worth of location information it was never even sent?").
13. See Maryland v. Pringle, 540 U.S. 366, 371-72 (2003) (finding probable cause for arresting three men in a car after finding $763 of rolled-up cash in the glove compartment and five plastic glassine baggies of cocaine were behind the back-seat armrest).
14. See David H. Kaye, Why So Contrived? DNA Databases After Maryland v. King, 104 J. Crim. L. & Criminology 535 (2014); David H. Kaye, A Fourth Amendment Theory for Arrestee DNA and Other Biometric Databases, 15 U. Pa. J. Const. L. 1095 (2013).
15. Whether accessing the Guthrie cards for criminal investigations is common or rare in New Jersey would not seem to affect the legality of the subpoenas. Of course, the extent of the access should be a matter of public concern, and widespread law enforcement use of the cards could prompt legislation to curtail the practice. But that is so whether or not the alleged invasions of "genetic privacy" are constitutional. Still, uncovering a widespread practice that is not only of general public interest, but also illegal, might add weight to the case for public disclosure under a balancing test for such disclosure. In that event, the allegations of unconstitutionality would not be superfluous to the complaint. Nonetheless, if the  opinions on the state and federal law of search and seizure are overly rhetorical, one might wonder whether they go beyond a simple "statement of the facts on which the claim is based." Rules Governing the Courts of the State of New Jersey, Rule 4:5-2, available at https://www.njcourts.gov/attorneys/assets/rules/r4-5.pdf.