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Court backs DNA testing as condition of federal bail
2-1 opinion in CA is first of its kind in the nation
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  Court backs DNA testing as condition of federal bail
2-1 opinion in CA is first of its kind in the nation

by Denny Walsh

Sacramento Bee

September 15, 2010

In the first decision of its kind in the nation, a split appellate court has ruled in a Sacramento case that DNA testing is a legitimate condition of release on bail for a federal defendant charged with a felony but not yet convicted.

Before a federal felony can be charged, there must be probable cause to believe the defendant has committed the crime, two members of a three-judge panel of the 9th U.S. Circuit Court of Appeals noted in Tuesday's 47-page opinion.

Under those circumstances, the majority ruled, the government's interest in definitively identifying the defendant "outweighs the defendant's privacy interest in giving a DNA sample as a condition of pre-trial release."
 

The 2-1 opinion affirms a ruling in July 2009 by Sacramento U.S. District Judge Edward J. Garcia, who adopted the exhaustive findings and analysis of U.S. Magistrate Judge Gregory G. Hollows.

Garcia reiterated that "no Fourth Amendment (unreasonable search) or other constitutional violation is caused by the universal requirement that a charged defendant undergo a 'swab test,' or blood test when necessary, for the purposes of DNA analysis."

The issue grew out of the refusal of Jerry Arbert Pool to submit to a DNA test as a bail condition. Pool, a 68-year-old truck driver from Anderson, is charged in a January 2009 indictment with possessing and receiving child pornography. He has no prior criminal record and has pleaded not guilty.

The case has been in a holding pattern and Pool has been free on a $25,000 unsecured bond and is subject to electronic monitoring by court officials and an enforced curfew. Hollows stayed the DNA condition pending Pool's appeal.

Amendments in 2005 and 2006 to federal statutes expanded the DNA requirement to felony defendants not yet convicted and made it a condition of pre-trial release.

Once collected, a DNA sample is turned over to the FBI, which analyzes it and includes the results in a national database.

Pool's constitutional challenge to the requirement is the first to be decided by a federal circuit.

His attorney, Assistant Federal Defender Rachelle Barbour, said Tuesday she will petition the circuit for a review by an enlarged panel.

Tuesday's majority opinion was written by 9th Circuit Judge Consuelo M. Callahan of Sacramento, with a written concurrence from visiting 10th Circuit Judge Carlos F. Lucero of Denver. Dissenting was 9th Circuit Judge Mary M. Schroeder of Phoenix.

In her stinging dissent, Schroeder declared that no circuit "has ever before approved such a warrantless search or seizure before an individual has been convicted of any crime."

In California, the American Civil Liberties Union is challenging the state's mandatory DNA collection at the time of a suspect's arrest based on a felony.

A San Francisco federal judge in December denied the ACLU's motion for a preliminary injunction barring enforcement of the state law pending resolution of the matter on its merits. In July, a 9th Circuit panel – different from the one in the Pool case – heard oral arguments and took under submission the ACLU's appeal of that ruling.