1st Circuit Notes Split Re Application of Federal DNA Act in Fourth Amendment Search and Seizure Issues

Per U.S. v. Weikert, --- F.3d ----, 2007 WL 2265660 (1st Cir.(Mass.) Aug 09, 2007) (NO. 06-1861):

This case presents a question of first impression in this circuit: is it a violation of the Fourth Amendment's prohibition on unreasonable searches and seizures to require an individual on supervised release to provide a blood sample for purposes of creating a DNA profile and entering it into a centralized database? Agreeing with the eleven other circuits that have held similarly, we hold that it is not. In doing so, we interpret the Supreme Court's decision in Samson v. California, --- U.S. ----, 126 S.Ct. 2193, 165 L.Ed.2d 250 (2006), to require that we join the majority of the circuits in applying a "totality of the circumstances" approach to the issues in this case, rather than the "special needs" analysis used by the minority of circuits.

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The other circuits have split in the analysis they apply to the federal DNA Act or its state law analogs. A majority-the Third, Fourth, Fifth, Eighth, Ninth, Eleventh, and D.C. Circuits-use the totality of the circumstances analysis described in Knights and Samson. See United States v. Kraklio, 451 F.3d 922, 924 (8th Cir.2006)(federal DNA Act); Johnson v. Quander, 440 F.3d 489, 496 (D.C.Cir.2006)(federal DNA Act); United States v. Sczubelek, 402 F.3d 175, 184 (3d Cir.2005)(federal DNA Act); Padgett v. Donald, 401 F.3d 1273, 1280 (11th Cir.2005)(Georgia analog); United States v. Kincade, 379 F.3d 813, 832 (9th Cir.2004)(en banc)(federal DNA Act); Groceman v. U.S. Dep't of Justice, 354 F.3d 411, 413-14 (5th Cir.2004)(per curiam)(federal DNA Act); Jones v. Murray, 962 F.2d 302, 306-07 (4th Cir.1992)(Virginia analog). A minority-the Second, Seventh, and Tenth Circuits-apply the special needs analysis. See Amerson, 483 F.3d 73, 79 n. 6 (2d Cir.2007)(federal DNA Act); United States v. Hook, 471 F.3d 766, 773 (7th Cir.2006)(federal DNA Act); United States v. Kimler, 335 F.3d 1132, 1146 (10th Cir.2003)(federal DNA Act). Finally, the Sixth Circuit, in United States v. Conley, 453 F.3d 674, 679-81 (6th Cir.2006), declined to choose a mode of analysis, holding that the DNA Act was constitutional under either a totality of the circumstances or a special needs analysis. FN6

FN6. The circuits also disagree over which test is more rigorous. Compare Sczubelek, 402 F.3d at 184 (explaining that it would apply the "more rigorous Knights totality of the circumstances test rather than the Griffin special needs exception) and Kraklio, 451 F.3d at 924 (same) with Amerson, 483 F.3d at 79 n. 6 (2d Cir.2001)(indicating that the special needs test is more "stringent").