An 11-judge panel of the 9th Circuit Court of Appeals will re-examine the constitutionality of requiring someone arrested (but not convicted) to give a DNA sample as a condition of release on bail. The full court voted to reconsider a September 2010 decision that required a DNA sample from Jerry A. Pool, arrested on a charge of possessing child pornography.
Pool, from the Sacramento area, asserted that demanding his DNA as a condition of bail violated his Fourth Amendment rights, against unreasonable search and his due process rights.
A divided three-judge panel approved the bail condition back in September with a dissent from Judge Mary Schroeder. She wrote that absent a warrant or showing of probable cause to conduct DNA profiling in this case, the government bears the burden to show that a Fourth Amendment exception justifies the searches as reasonable.
She noted that unlike past cases that allowed DNA collection from convicted felons, Pool does not have reduced privacy interests as do felons.
In the September decision, the majority called this a “vexing case” because of the competing interests – the enormous potential for DNA profiling as an investigative tool and the potential for “misuse” that poses a real threat to privacy, according to Judge Consuelo Callahan. She was joined by a visiting judge from the 10th Circuit in Denver. It is not unusual for the 9th Circuit to reconsider significant constitutional issues when two judges of the court split on the decision and a visiting judge provides the deciding vote.
Under the 9th Circuit’s procedure a majority of the court’s 26 judges must agree to reconsider the September decision. Once that is done, the case will be reheard by a random draw of 11 judges from the pool of 26 judges.
Case: U.S. v. Pool, 09-10303 (9th Circuit)