Taking of a Blood Sample and Creation of a DNA Profile Found Not to Be an Unreasonable Search

Posted on August 27, 2010 by Colin J. Zick

In a recent decision by the United States Court of Appeals for the First Circuit, Martin Boroiang v. Robert S. Mueller, III, et al., No. 09-1630, the First Circuit rejected a challenge to the requirement that a blood sample be given by a federal offender for purposes of creating a DNA profile and entering it into a centralized government database.

The DNA Analysis Backlog Elimination Act of 2000 (“DNA Act”) applies to individuals who have been convicted of a “qualifying federal offense” and who are incarcerated or on parole, probation, or supervised release.  It requires such individuals to provide a DNA sample.  These samples are loaded on CODIS, a powerful identification and investigation tool, permitting state and local forensic laboratories "to exchange and compare DNA profiles electronically in an attempt to link evidence from crime scenes for which there are no suspects to DNA samples of convicted offenders on file in the system." H.R. Rep. 106-900(I), at 8 (2000), 2000 WL 1420163.

Mr. Boroiang was convicted of making a false statement in violation of 18 U.S.C. § 1001, and sentenced to one year of probation.  Just before his term of probation was to expire, the United States Probation Office ordered him to submit to the drawing of a blood sample pursuant to the DNA Act.  Presumably troubled by the imposition of this requirement even though he had served no time in jail and had not committed any violent offense, Boroiang filed a pro se complaint, asking to have the request withdrawn, but at the same time he submitted to the request so that he could complete his probation.

The First Circuit’s opinion addressed the question of whether it is constitutional for the government to retain and access a qualified federal offender’s DNA profile after his term of supervised release or probation has ended. The First Circuit held that the DNA sample was not a separate “search” and that the taking of the sample was consistent with historical practices and precedents on the retention or matching of offenders identification records (such as fingerprints or mugshots).

The Court made it clear that it was not suggesting that "once a DNA sample is lawfully extracted from an individual and a DNA profile lawfully created, the individual necessarily loses a reasonable expectation of privacy with respect to any subsequent use of that profile."  Rather, the ruling was a narrow one, standing only for the proposition "that once a qualified federal offender's profile has been lawfully created and entered into CODIS under the DNA Act, the FBI's retention and periodic matching of the profile against other profiles in CODIS for the purpose of identification is not an intrusion on the offender's legitimate expectation of privacy and thus does not constitute a separate Fourth Amendment search."

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Massachusetts Supreme Judicial Court Allows Use of Secret GPS To Track an Individual's Movements, But Requires Police To Obtain Warrant

Posted on September 23, 2009 by Jeff Bone

Earlier this year, the Wisconsin and New York state courts split on whether police may install a covert GPS tracking device on a suspect's car without a warrant.  On September 17, the Massachusetts Supreme Judicial Court addressed the GPS tracking device issue, ruling that Article 14 of the Massachusetts Declaration of Rights requires a warrant before such a device may be installed and used. 

The defendant, Everett Connolly, was a suspected drug dealer and who was investigated by police for more than a year.  The investigation included surveillance and controlled drug purchases by confidential informants and, towards the end of the surveillance period, by an undercover officer.  Based on this investigation, the police applied for a warrant to place a GPS tracking device on Connolly's van for fifteen days.  The application was granted and Connolly was eventually arrested (based on a separate arrest warrant), tried and convicted.  He argued to the SJC that, among other things, "surreptitious GPS monitoring without a warrant constitutes an unreasonable search and seizure that violates the Fourth Amendment . . . and art. 14 of the Massachusetts Declaration of Rights."  He based this argument on the theory that, although police had a search warrant, they continued to obtain information from that warrant after it had expired.

Read on for more detail and analysis of the SJC's opinion.

The majority ruled that "installation and use of the GPS device in the circumstances of this case was a seizure requiring a warrant," but held that the warrant obtained had not expired.  After declining to make a ruling under the Fourth Amendment, the majority concluded that a warrant was required because the installation and use of a GPS tracking device on a vehicle constituted a seizure under art. 14 of the Massachusetts Declaration of Rights.  Regarding installation, the majority reasoned that it required entry by police into the van for an hour, operation of the van's electronic system and power from the vehicle.  Regarding use, the majority reasoned that the government's use and control of the vehicle to track its movements interfered with the defendant's interest in the vehicle, as the police were using private property to obtain information for their own purposes.

Three justices concurred in the judgment.  They agreed with the majority that installation of a GPS device constituted a seizure requiring a warrant.  However, they argued that the use of a vehicle to conduct GPS monitoring did not constitute a seizure of the vehicle; rather, they believed that such use invaded the reasonable expectation of privacy of any person authorized to drive the vehicle, and that such invasion was better characterized as a search.  According to the concurrence, only by focusing on the "privacy interest at risk from contemporaneous GPS monitoring . . . will we be able to establish a constitutional jurisprudence that can adapt to changes in the technology of real-time monitoring, and that can better balance the legitimate needs of law enforcement with the legitimate privacy concerns of our citizens.

 As I noted in an earlier post, the use of GPS devices to monitor suspects' movements is bound to become a hot-button issue over the next few years.  The courts that have addressed the issue have expressed great concern about the threat to privacy posed by the rapid progression in monitoring technology.  What is interesting about the SJC's decision is that it appears the majority was attempting to craft a more narrow decision by basing its holding on the seizure of the vehicle, which implicates an individual's property interest.  The concurrence's position is arguably broader, more subjective, and more flexible, as it requires analysis of a person's expectation of privacy.  One wonders, then, if the issue behind the scenes with the SJC was not what result to reach, but how broad to stretch in the opinion.

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"Hi, We're From the FCC and We Are Here to Search Your Cellphone"

Posted on May 21, 2009 by Aaron Wright

From the increasingly populated intersection of the Fourth Amendment and modern technology, comes this story from Wired’s "Threat Level."  The Federal Communications Commission (FCC) claims the right enter onto any property to inspect -- without a warrant -- any radio equipment, regardless of whether it is licensed or unlicensed.  In an interview with Wired, an FCC spokesperson claimed that the FCC’s right to inspect radio equipment extends to “anything using RF energy.”  This includes commonplace items like wireless internet routers, remote access car keys, and cell phones.  Additionally if any illegal or suspicious items or behavior are discovered or observed during a warrantless administrative search, these observations may be the basis for a criminal search warrant or arrest.  Despite some substantial disagreements about this application of the law, operators have been fined by the FCC for failure to allow such warrantless inspections.  The ubiquity of items the FCC claims it may inspect without a warrant, combined with the potential for such searches to lead to criminal actions, is causing privacy advocates to react with concern.  And with good reason, as this could be a prelude to the expansion of other types of administrative searches.

Links:

  • Cory Doctorow reports on the FCC’s inspection policy at BoingBoing here
  • The Federal Communications Commission’s homepage is here
  • The Federal Communications Commission’s “2005 Inspection Policy” can be found at their website here
  • The Federal Communications Commission’s order imposing a fine for failure to allow inspection of radio equipment can be found here or at their website here
  • John Byrne reports on the FCC’s inspection policy at the Raw Story here
  • Rouge Radio Research’s FAQ arguing the FCC lacks the power to inspect unlicensed radio stations can be found here
  • Ryan Singel’s report breaking this story at Wired, “FCC’s Warrantless Household Searches Alarm Experts”, can be found here

 

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Courts Split On Whether Police Can Use GPS To Track Individual's Movements Without A Warrant

Posted on May 13, 2009 by Jeff Bone

According to the Chicago Tribune, on May 7, 2009, a three-judge panel of Wisconsin Court of Appeals unanimously ruled that police "can attach GPS to cars to secretly track anybody's movements without obtaining search warrants" without violating the Fourth Amendment.  The court's opinion in State v. Sveum can be found here.  The defendant Sveum was under investigation for stalking when the police obtained a warrant to secretly place a GPS device on his car while it was parked in the his driveway.  The device recorded the defendant's movements for five weeks, after which time police retrieved it and used the information on it to obtain a warrant to search the defendant's residence.

More recently, on May 12, the New York Court of Appeals (that state's highest court), ruled that placing a GPS tracking device inside the bumper of a suspect's car without a warrant, and using that device to monitor the suspect's movements for two months, violated the suspect's rights under the New York State Constitution.  The court's opinion in People v. Weaver can be found here. 

The Wisconsin court first found that placing the device on Sveum's car in his driveway did not violate the Fourth Amendment because the driveway was a public place.  In rejecting the defendant's argument that the device followed him into areas out of the public view (such as his garage), the court held that the device only gave the police as much information as visual surveillance would have.  As noted by the Wisconsin Law Journal, the court followed a decision from the United States Court of Appeals for the Seventh Circuit and concluded that "no privacy interest protected by the Fourth Amendment [] is invaded when police attach a device to the outside of a vehicle, as long as the information obtained is the same as could be gained by the use of other techniques that do not require a warrant."  Nevertheless, the court was "more than a little troubled . . . [that]  police are seemingly free to secretly track anyone's public movements with a GPS device."

The New York court was even more concerned.  It ruled that under the New York State Constitution, the New York defendant had a reasonable expectation of privacy that was infringed by the placement of the GPS device on his car and the use of that device to monitor his movements for two months.  As such, there had been a search under the New York Constitution, and that the search was illegal because it was conducted without a warrant (or justification to excuse the lack of a warrant).

The use of GPS devices to monitor suspect's movements is bound to become a hot-button issue over the next few years.  Both the New York and Wisconsin courts expressed great concern about the threat to privacy posed by the rapid progression in monitoring technology.  Moreover, the last  Supreme Court decision to substantively address a similar issue was over 25 years ago, in, U.S. v. Knotts, 460 U.S. 276 (1983).  In Knotts, the Court upheld the surreptitious installation of a beeper tracking device (a radio transmitter emitting periodic signals to enable tracking in a container of chloroform).  This was because "a person traveling in automobiles on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another."  The New York state court in Weaver noted that the amount of information that could be gathered from by a GPS device is much greater than a beeper in 1983 and so court may reach different results in teh future based on the technology at issue.  

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Limits of Privacy in Schools: Supreme Court Hears Arguments on School Strip Search Case

Posted on April 21, 2009 by Aaron Wright

Today, the Supreme Court heard oral arguments in Safford Unified School v. Redding, a dispute concerning the propriety of a school-ordered a strip-search of a 13-year-old student who was believed to be in possession of prescription strength ibuprofen in violation of the school’s zero-tolerance drug policy.  The case has received a good deal of media coverage (see the New York Times article for an example) because the facts are attention grabbing.  But, attention-grabbing facts aside, the case has the potential to clarify the Fourth Amendment rights of students and, in particular, whether suspicion of violating school policy may justify strip searches in schools.

The Supreme Court granted certiorari, in part, to address the question (.pdf): “Whether the Fourth Amendment prohibits public school officials from conducting a search of a student suspected of possessing and distributing a prescription drug on campus in violation of school policy.”  Early reporting from today’s oral arguments suggests that the Court is likely to reach that question.  

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Newly released opinions on privacy shed light on past government practices

Posted on March 3, 2009 by Aaron Wright

On Monday the Department of Justice released a previously classified opinion entitled “Authority for Use of Military Force To Combat Terrorist Activities Within the United States” (.pdf), which concluded, among other things, that “the Fourth Amendment [of the U.S. Constitution] does not apply to domestic military operations designed to deter and prevent further terrorist attacks.” This may come as a shock to some because the Fourth Amendment expressly prohibits the government from searching or seizing individuals or their property absent a warrant and probable cause, without any special carve out for domestic military operations. The DOJ opinion, written by Deputy Assistant Attorney General John C. Yoo and Special Counsel Robert J. Delahunty, also concluded that these constitutionally exempt counter-terrorism operations would include “making arrests, seizing documents or other property, searching persons or places or keeping them under surveillance, intercepting electronic or wireless communications, setting up roadblocks, interviewing witnesses, and searching for suspects.” The evidence recovered from these operations could then be used “for criminal investigations or prosecutions.”

Commentators have reacted with concern to the opinion as it placed the power to decide whether or not the Fourth Amendment applied to a military action in the hands of the President (“If the President concludes that it is necessary to use military force domestically to counter [terrorists], the Fourth Amendment should be no more relevant than it would be in cases of invasion or insurrection.”).  Many have also noted that have noted that because NSA is part of the military, this opinion was probably part of the justification for the past administration’s warrantless wire-tapping program, which caused great concerns among civil libritarians.

It is unlikely that this opinion will govern during the Obama presidency: the DOJ formally renounced this opinion on January 15, 2009.  However, the disclosure of this opinion does help shed light on (or confirm) the last administration's view of privacy during the war on terror.

Links:

  • Department of Justice website
  • The October 23, 2001 opinion can be found here (.pdf) or from the DOJ’s website here (.pdf)
  • Department of Justice Press Release announcing the disclosure of the opinion memorandum is available here or from the DOJ’s website here
  • Glenn Greenwald’s column “The newly released secret laws of the Bush administration” is available here
  • National Security Agency website
  • New York Times article “Memos Reveal Scope of the Power Bush Sought” is here (registration required)
  • New York Times article first reporting on the warrantless wiretapping program is here (registration required).
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