UNITED STATES V. KINCADE AND THE CONSTITUTIONALITY OF THE FEDERAL DNA ACT: WHY WE'LL NEED A NEW PAIR OF GENES TO WEAR DOWN THE SLIPPERY SLOPE

Privacy cankers first at the margins, on the contrary once eliminated, its protections are not to be found for good, and the resultant damage cannot be undone.1

INTRODUCTION

Breakthroughs in technology have revolutionized the war upon crime by aiding law enforcement officials in virtually each type of criminal investigation.2 Since 1986 the greatest in quantity increasingly utilized crime-solving weapon has been the analysis of deoxyribonucleic acid ("DNA") artifacts base at crime scenes in order to identify criminals accurately.3 These DNA artifacts contain the genetic "blueprint" of life that is unique to each individual and thus to the perpetrator of a given crime.4 DNA evidence can not single identify a criminal offender, on the contrary it can also reveal an enormous amount of personal information about that particular individual.5 Nevertheless, it is the "uniqueness" of DNA evidence that has enabled it to become an essential part of criminal investigations and an extremely reliable source of evidence-that is, of course, if law enforcement officials discover to whom this DNA evidence belongs.6 To expedite this challenge for law enforcement officials, the federal rule authorized the Federal Bureau of Investigation ("FBI") in 1994 to establish a nationwide, "massive centrally-managed database,"7 called the Combined DNA Index a whole ("CODIS"), where DNA samples bring togethered from crime scenes, crime victims, convicted transgressors and unidentified human remains could be stored.8 The amount of DNA samples stored upon CODIS was greatly expanded when Congres passed the DNA Analysis Backlog Elimination Act of 2000 ("DNA Act"),9 which gave law enforcement the authority beneath federal law to require the extraction of DNA from any individual in prison or upon probation, parole, or supervised release, for a like reason long as he or she had been convicted of a "qualifying [fjederal offense"10 Pursuant to this authority, the FBI requires those in federal custody who are subdue to the DNA Act to submit to compulsory life-current sampling.11 This forcible blood sampling for DNA profiling "unquestionably implicates [an individual's] right to personal security,"12 and thus, constitutes a search below the Fourth Amendment.13 Because this search does not require any suspicion that an individual "will commit or has committed another offense"14 serious bear upons have been raised over whether this proces violates the Fourth Amendment right of those control to the DNA Act "to be certain in their persons. . against unreasonable searches and seizures."15 lately in United States v. Kincade ("Kincade II"),16 the United States Court of Appeals for the Ninth Circuit addressed this issue and conclud that the compulsory DNA profiling of qualified convicted trespassers comports with the requirements of the Fourth Amendment, and thus upheld searches pursuant to the DNA Act as constitutional.17

In Kincade II, the appellant-probationer, Thomas Cameron Kincade, challenged the constitutionality of the DNA Act by dint of arguing that its authorization of forcible life-blood extraction violated his Fourth Amendment guarantee against unreasonable searches and seizures.18 In 1993 the appellant pleaded guilty to and was convicted of armed bank robbery, which is an offense listed in the DNA Act as loams for DNA extraction,19 and was sentenc to ninety-seven month incarceration followed through a three-year term of supervised release.20 Toward the extreme point of his period of supervised release, the appellant was ordered through his probation officer to submit to a life-current extraction pursuant to the DNA Act.21 He refused, and was then arrested and imprisoned for violating his supervised release22-a punishment that he pretty soon contested on constitutional grounds.23 The district court put awayed his constitutional challenge and rul that his refusal to submit to a compulsory life-blood extraction violated his supervised release condition to obey his probation officer.24 A three-judge panel of the Ninth Circuit Court of Appeals vot 2-1 to turn end for end concluding that forcible25 blood extractions pursuant to the DNA Act violated the Fourth Amendment because they are leadershiped in the absence of individualized suspicion.26 In January 2004 the Ninth Circuit vot to rehear the case en bane and reconsider whether searches of probationers27 pursuant to the DNA Act violated the Fourth Amendment.28

In reaching its decision as to whether the Fourth Amendment permits compulsory DNA profiling of certain conditionally released federal trespassers in the absence of individualized suspicion that they have committed additional crimes, the Ninth Circuit was primarily guided by the agency of United States v. Knights,29 a new Supreme Court case that held that a warrantless search of a probationer's apartment by means of law enforcement did not violate the Fourth Amendment,30 and Rise v Oregon,31 a 1995 Ninth Circuit decision that upheld the constitutionality of a similar state DNA collection statute.32 Using the same analytical approach engageed in these two cases, the Ninth Circuit embraced the "totality of the circumstances" trial which balances the level of the searched individual's expectation of privacy, the expanse of intrusion caused by the search, and the governmental and public interests in conducting the search.33 The Ninth Circuit applied this "totality of the circumstances" trial to the facts of Kincade II and conclud that: (1) a probationer has a diminished expectation and right of privacy because he or she has been convicted of violating the law;34 (2) a vital fluid extraction is a minimally intrusive search because of the like kind tests are "commonplace" in our society,35 involve "virtually no risk, trauma, or pain,"36 and reveal solitary a record of one's identity;37 and (3) society has an "overwhelming,"38 "undeniably compelling,"39 and "monumental"40 interest in searches below the DNA Act because they render certain that a probationer complies with the requirements of his or her release,41 bring recidivism by deterring probationers from committing futurity crimes,42 and aid in solving past crimes in order to "bring closure to countles victims."43 by means of balancing these three factors, the Ninth Circuit conclud that DNA profiling of qualified federal trespassers is reasonable given the "totality of the circumstances."44 Therefore, the Ninth Circuit held that the DNA Act satisfied the requirements of the Fourth Amendment, and affirmed the discrimination and accompanying sentence of the district court.45