Would You Trust the Government With Your DNA?

United States v. Kriesel, No. 11-30197, 2013 WL 3242293, (9th Cir. June 28, 2013)

Thomas Kriesel pled guilty to a drug conspiracy charge and was sentenced to imprisonment and then supervised release.  As a condition of his supervised release he was required to provide a blood sample for DNA analysis which would be stored in CODIS.  Upon completion of his supervised release, Kriesel moved the court to return his sample, citing Federal Rule of Criminal Procedure 41(g). The Ninth Circuit Court of Appeal held Kriesel’s blood is “property”, it contains “information” and Kriesel was “aggrieved” as defined by the rule.

Relief under FRCrP 41(g) should be presumptively granted if the evidence is no longer needed.  The government can rebut the presumption by showing the continued need for the property is reasonable under all the circumstances.

When the government inputs blood samples into CODIS, it only has permission to extract the junk (biologically unimportant non-coding) DNA.  According to current scientific understanding, this junk DNA does not contain private genetic or medical information, but is only used to generate profiles.  When DNA from a crime scene matches a sample stored in CODIS, the sample is then tested. 

The government argues that keeping Kriesel’s sample is reasonable because it is used as quality assurance to avoid error matches. Kriesel argued that there is sensitive information contained in the sample and the court’s response was that the record does not suggest the government will even try to obtain such information.  Your clients should rest at ease because of the DNA Act – if the government, without authorization, uses DNA for any purposes other than suspect identification, they will arrest themselves. Or, perhaps they could just give themselves permission.

Judge Reinhardt eloquently dissented better than I ever could:

The majority’s opinion illustrated the failure of today’s judiciary to stand up to clear abuse of governmental authority as well as its unwillingness to protect the fundamental right to privacy of all Americans.  Judges have come to place their reliance on what the government tells them, rather than on what the Constitution requires.  Courts have grown more and more lax in curtailing the excesses of law enforcement, and the judiciary’s record in protecting privacy rights has become wholly unsatisfactory.  No other case, however, reflects a greater surrender on the part of the courts of the citizens’ right of privacy simply because it is told “Trust Your Government.” As far as I am concerned, the Constitution demands far more.

Bottom Line:  Until a defendant can show that the government is using this information in violation of the DNA Act, they are at the mercy of the government.

See also United States v. Kriesel, 508 F.3d 941 (9th Cir. 2007); United States v. Kriesel, 604 F.3d 1124 (9th Cir. 2010).

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