Friday, Oct. 3, 2003 | 11:05 a.m.
SUN STAFF AND WIRE REPORTS
SAN FRANCISCO -- A federal appeals court has declared a 3-year-old law that requires federal inmates and parolees to give blood samples for the FBI's DNA database to be an unconstitutional invasion of privacy.
In a 2-1 decision handed down Thursday, the 9th U.S. Circuit Court of Appeals overturned the DNA Analysis Backlog Elimination Act of 2000 on grounds that the routine sampling denied inmates and parolees of their Fourth Amendment protection against illegal searches.
Law enforcement officials, according to the opinion, wrongly took the blood samples because there was no legal suspicion that the convicts were involved in other crimes.
The Justice Department declined comment.
Government lawyers had argued before the federal appeals court that taking blood was no different than taking fingerprints. Two of the panel's three judges, however, rejected that proposition as a "false analogy."
Equating fingerprints and blood "obscures the constitutional difference between invasive procedures ... and an examination or recording of physical attributes that are generally exposed to public view," wrote Judge Stephen Reinhardt.
The ruling could have a sweeping impact on criminal cases in states covered by the 9th Circuit -- Nevada, Alaska, Arizona, California, Hawaii, Idaho, Montana, Oregon and Washington.
Blood samples taken from federal prisoners and those on supervised release have been used to convict hundreds of people on crimes such as murder and rape. It was too early to say whether those convictions would survive, said Monica Knox, a deputy public defender in Los Angeles.
Knox also said the decision, if it stands, could nullify state laws that require the taking of blood from inmates and parolees.
"Most states have similar laws," Knox said. "This could gut those."
In Nevada, inmates convicted of any of a long list of offenses, including most felonies, crimes against children, sexual offenses or the abuse or neglect of an older person, must undergo testing for genetic markers, Clark County District Attorney David Roger said.
The samples are turned over to the Combined DNA Indexing System, which is a database operated by the FBI.
"These test results provide a significant resource for law enforcement in identifying the perpetrators of crimes," Roger said.
The testing is only required for people who have already been convicted of a crime. There is no state law that requires people charged with crimes to submit samples, he said.
The test results can help authorities solve future crimes or link convicts to unsolved crimes.
"There are many cases where the identification of a perpetrator is based solely on DNA evidence," Roger said. "This decision will require detectives to work harder on identifying perpetrators or criminals without the benefit of a statewide or national repository for genetic marker information."
Metro's forensic lab enters DNA samples into the system, Linda said Errichetto, director of the lab.
It's too early to tell whether the ruling will have an effect locally, she said.
"I think it's a wait-and-see game," Errichetto said. "Obviously there will be more litigation on this."
Natalie Collins, spokeswoman for the U.S. attorney's office, said federal authorities in Nevada rarely use DNA samples in the prosecution of cases.
"I'm not aware of any cases prosecuted in the District of Nevada where we've used this type of evidence," she said.
Collins said DNA evidence is usually used in violent crimes, which the U.S. attorney's office rarely prosecutes.
Most of the 1.4 million genetic profiles in the FBI's database are from prisoners and parolees, said bureau spokesman Paul Bresson. The FBI does not track the number of samples in the database that match physical evidence collected from unsolved crimes.
California, however, does track that number, said state Attorney General Bill Lockyer. Matches have occurred about 400 times, including one that led to the conviction of a man in the 1993 rape and murder of two San Diego youths.
Scott Erskine, 40, was serving a 70-year term on unrelated rape charges when his blood matched DNA taken from the 1993 crime scene. Last year his blood also was linked to evidence taken from the 1989 rape and slaying of a Palm Beach County, Fla., woman.
It was not immediately clear whether the decision would allow those who have given blood to have it withdrawn from the databank, for use by police nationwide.
The case decided Thursday concerned Thomas Kincade, on parole for a Los Angeles bank robbery who refused to give a sample. A lower court judge had upheld the law.
Knox said she expected legal battles on whether the ruling, if it survives appeals, would be applied differently to parolees and those still in prison.
"I believe the opinion applies to prisoners, too," Knox said. "There will be more litigation on this, I'm sure."
The San Francisco-based panel said its decision does not overturn rules that, for example, allow random drug testing of students who play school sports.
In dissent, Judge Diarmuid O'Scannlain said recent Supreme Court precedents did not require the court to conclude the DNA act was unconstitutional because convicts have fewer rights than nonconvicts.
In addition, he said the court in 1995 sided with an Oregon law requiring certain convicts to submit to a DNA registry -- a ruling he said should stand.
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