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

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time in jail and had not committed any violent offense, Boroiang filed a pro se complaint, asking to have the request withdrawn, but at the same time he submitted to the request so that he could complete his probation.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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