[JURIST] The US Court of Appeals for the Third Circuit [official website] on Monday ruled [opinion, PDF] 8-6 that law enforcement officers are permitted to obtain DNA samples from arrestees. Law enforcement officers sought a DNA sample from defendant Ruben Mitchell after he was indicted for attempted possession with intent to distribute cocaine pursuant to 42 USC § 14135a(a)(1)(A) [text], which permits the collection of DNA samples from individuals who are arrested, facing charges or convicted. Mitchell argued that the DNA collection violated his Fourth Amendment [text] right against unreasonable searches and seizures. The district court agreed, ruling that the DNA collection was unconstitutional. Though the government is permitted to appeal a criminal order in few circumstances, the court permitted the government to appeal the trial court’s holding on the grounds that the district court conclusively decided a question of constitutional law and because the ruling resolved an important issue independent from the merits of the action. The appeals court overruled the lower court’s decision, concluding that because arrestees have a diminished expectation of privacy, the government’s interest in collecting and testing the DNA sample outweighed the intrusion on Mitchell’s privacy. The court pointed to the government’s compelling interest in identifying suspects and the unique attributes of DNA evidence to reach its conclusion.

US Attorney General Eric Holder [official website] instructed federal prosecutors in 2010 to use DNA evidence as much as possible and collect DNA evidence from all federal arrestees [JURIST report], in a reversal of Bush administration policy. In 2009, the US District Court for the Eastern District of California [official website] upheld the constitutionality [opinion, PDF] of mandatory DNA collection for all persons arrested or detained under federal authority, holding that although the collection of DNA from those arrested on federal felony, sexual abuse, or violent crime charges does constitute a “search” within the meaning of the Fourth Amendment, a person arrested based on probable cause “has a diminished expectation of privacy in his own identity.” Federal agencies began collecting DNA samples [JURIST report] in April 2009, although they had been authorized to do so since 2006. About 1.2 million additional people could be added to the FBI’s Combined DNA Indexing System (CODIS) [official website; FBI backgrounder] every year under the expansion, although people who are not convicted can request the destruction [WP report] of their DNA samples. In November 2007, the US Court of Appeals for the Ninth Circuit ruled [JURIST report] that all convicted federal felons must provide DNA samples to a federal database available to police departments throughout the country. In 2005, the Third Circuit ruled [JURIST report] that a convicted bank robber had to submit DNA samples to CODIS.